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^
State Trials.
VOL. xm.
COMPLETi^:^;10llil.ECTION
yy :.-!•-'
State Trials
AND
PROCEEDINGS FOR HIGH TREASON AND OTHER
CRIMES AND MISDEMEANORS
FKOM THE
EARLIEST PERIOD TO THE PRESENT TIME,
WITU irOTES AJ^D OTHER ILLUSTRATIOJ^S
COMPILED BY
T. B. HOWELL, Esq. F.R.S. F.S.A.
VOL. xra.
LONDON:
nUNTBD BY T. C HAMSARD. PBTERBOROUOH-OOUIIT, FLBBT-STREBTi
nw LONOHAM, B17B8T, RBES, ORHE, & BROWNE ; J. RICHARDSON ; BLACK^
PARRY, & KINOWCRY ; J. HATCHARD ; E. LLOYD ; S. BUDD ; <
J. PAULDBS; J. BOOKER ; CRADOCK k JOT; S. JBFFBBY;
R. B. STAMi; i. BOOTH ; AND T. C. HANSARD.
1B12.
TABLE OF CONTENTS
TO
VOLUME XIIL
*«* The new Artides are merhed [N.]
Page
SM. The Trial of Sir JOHN FREIND, knt. at the Old-Bailey, for
High Treason, a. d. 1696 ]
386. The Trial of Sir WILLIAM PARKYNS, knt. at the Old-Bailey,
for Hi^ Treason, a. d. 1696 63
%6. The Trial of AMBROSE ROOKWOOD, for High Ti^luon,
A.D. 1696 139
:S7. The Trial of CHARLES CRANBURNE, for High Treason, a. d.
1696 • I • ••»••••• SS2
3S& TheTrialofROBERTLOWICK^forHighTreason, A.D. 1696... S6'
389. The Trial of PETER COOK, at the Old-Bailey, for High Treason,
A.D. 1696 311
900. Tlie Trial of ALEXANDER KNIOHTLEY, at the King's-Bench,
fiirHigliTreMoi^ A.D. 1696 398
391. The Ph)oeediDg8 against the Three Nonjuring Clergymen, Mr.
COLLIEE, Mr. CQPK, and Mr. SNATT, for piAUdy absolr-
ing Sir WilUam VeApm and Sir John Fraind at Tyburn, a. n.
1096 ,.«u..M, , 406
TABLE OF CONTENTS.
Pd5pr
asa. The Trial of JOSEPH DAWSON, EDWARD FORSEITH,
WILLIAM MAY, WILLIAM BISHOP, JAMES LEWIS,
and JOHN SPARKES, at the OM-Bailqr, for Fdooy and Piracy,
A. D. 1696 ^ c 451
393. The T^ of Oq^tab THOMAS YAUGHAN, at the Old-Bafley,
for High Treason on the High Seas, a.d. 1696 486
394. Froceedmgs in Rtfliament against Sir JOHN FENWICK, hart.
upon a Bill of Attainder lor Hijg^ TveasoD, a. d. 1696 538
395. The Case, with the Proceedings against Mijor JOHN BERNARDI,
Mr. COUNTER, Mr. BLACKBURN, Mr. CASSELS, Mr.
CHAMBERS, and Mr. MELDRUM, on Account of the Assas-
sination-Plot, A. D. 1696 759
896. Proceedings agmnst Sir DUNCAN CAMPBELL, and other Hen-
tors of the Shire of Avgyle, lor High Treason, a. d. 1686-1687.
[Nov first printed from the Records of Justiciaiy m Edin-
burgh.] [N.] 787
397. Phiceedings in the P^liament of Scotland against the Viaooont of
DUNDEE and others, for High Treason, a. d. 1690. [Now first
priiMd fircim the Flsrlnmentary Records at Edinburgh] [N.]... 818
398. The Trial of ALEXANDER HALYBURTON and WM. ERA-
SER, frr High Treason, a. d. 1692. [Now first pnnted from
the Beoords of Justiciary in Edinbnrgfa.] [N.] 831
399. FtooeedingB against Captain JAMES MIDDLETOUN and others,
ion High Treason, a. d. 1694. [Now first published from the
Records of Justiciaiy at Edinburgh.] [N.] 849
400. Plrooeediags in the Psriiaasent of Scodsnd lespectii^ the MAS-
SACRE OF GLENCO, A.D. 1695. [N.] 879
401. Prooeedings gainst STHOMAS AIKENHEAD, for Blaspheeajr,
A. D. 1696. [Now first printed from the Reooids of Justiciary
in Edinburgh, and MSS. the property of Lord King.] [N.] 918
402. .The Trial of EDWARD Bari of WARWICK and HOLLAND,
. befoietfMHinwofLoids,fortbeMiirderof Richard Coote, esq.
A. p. 1689 M.i* 999
Pag§
40S. Hit TM of CHABLES pni IfDHUN, btfert the Houie of
Locds» for the Miudte tf Ridbtrd CddCe, em^A.^ 1G09 1034
404. Abrief Aoeomtdf CheTirkI of CHARLES DUNCOMBB, egq.
bifimdie Lotd Chief Jualice Helt, at the King^i-Bendi Bar in
Wfrtininfftf ^iJ^j i^on an Infennatioii for fidae indorsing of Ex-
dieqoer Bills, and paying them into the Exchequer, as if they
had been first paid into the. Excise Office upon that Branch of the
Berenue^, a. d. 1699. [Now first printed from a MS. in the Pos-
kc^theEailctfBadnor.] [N.] 10G8
405. He Trial of SPENCER COWPER, esq. ELLIS STEPHENS,
¥^ILLIAM ROGERS, and JOHN MARSON, at Hertford
AMiies, for the Murder of Mrs. Sarah Stout, a. d. 1699 1106
Hie CASE of SPENCER COWPER, e^q. JOHN MAR-
SON, ELLIS STEPHENS, and WILLIAM ROGERS,
gentlemen. [Published by them in 1699.] • 1190
406. The Trial of MARY BUTLER, alias STRICKLAND, at the Old
Bailey, for Forging a Bond of 4O,000L in the Name of Rob«t
Ckyton, a.d. 1699 ^ 1S60
407. FrDceedmgs in Pkurliament against THOMAS Duke of LEEDS, on
an Impeachment of High Crimes and Misdemeanors, a. d. 1695-
1701 '. 1S6S
408. The Trial of PATRICK KINNYNMOUNT, for Bh^hemy and
Aduheiy, A.n. 1697« [Now first printed firom the Records of
Justiciary in Edinbori^] [N.] 1874
409. The IVooeedings in Pkrliament upon the BiU of Divorce between his
Grace the Duke of NORFOLK and the Lady MARY MOB-
DANT, A.]>. 1700 UBS
410. FiroGeedings against Sir WILLIAM WILLIAMS, hart for the
PtaUicatioo of Dangerfidd's Narrative, a. d. 1684-1695 [N.] ... 1S70
411. Plroceedings i«ahist JOHN Earl of MELFORT, JOHN "Eari of
BflDDLETOUN,. RICHARD Earl of LAUDERDALE, and
several odien» Ibr Treason and Rebdlion, mtidng the Froidi
King to invade diafar Bl^gestiea Dominions, and remaining subject
TABLE OP CONTENTS.
Page
to the FiMch Kuig> A. d« 1694. [Now fint printed from the ^
Records of Justiciary at Edinburgh.] [N.] 1448
41S. Proceedings against KENNETH Earl ^ SEAFORTH, for High
Treason, a. d. 1697. [Now first printed from the Records of
Justiciary at Edinburgh.] [N.] ••. 1446
413. Proceedings against Mr. ALEXANDER PITCAIRNE, a Minis-
ter of the Church of Scotkndy for High Treason, and disowning,
quarrelling, and impugning of his Majesty's Royal Power and
Authority, and Rights and Title to the Crown, a. d. 1697« [Now
first printed from the Records of Justiciary at Edinburgh.] [N.] 1450
A COMPLETE COLLECTION
top
TATE TRIALS,
c Trial of Sir John Fheind/ knt at the Old-Bailey, for
High Treason: 8 William III, a. d» I696.
hmda^^ March 23, 1696,
I»iit0f»- House in the Old-Bailey,
"tic trial of lir JuLn Frriod,
tre]i!>on^ upon an Imlict-
I oy um: fj^nMjti jury for the city of
Ellic sessions ot'oyer and terminer
r«ry of Newgale, on 8aturday
Arraignmenii, Crytr^ make pra>
Ovex, oyt2, oypTj^ All maoner of
i4 Dftf e ttoy ihiuji^ more to do at ibii
•MS of the p«!ace, Kessiotis of oyer
Mr, botd^t) for the cily ol London,
^diifttj of Newgu(e» li'oldt>ii for the
aim and county of 31iddlesex, ud-
ir Id lhi« day { ilriw tiear, and ^ive
Imkvi for now tliey will proceed tti
iC Ibe crowti for I'lie said cily and
ltd God Mf e king Willi auk
r* Make pruclamation ugnln.
Oytat» You good men of the cily of
HamiOftgil to Qppenr hm: this da_\, to
i •or aofereitini lord the kiu|; und
r thftt k to bi* at the bur ; answer to
I a* yon i(h»Il be called^ every man
rati, opoci [laiu und peril tiiut will
I.
« fietly jury urere a)l called o? cr,
Ito
' rhii'f Jiittice
. . Mr, justice
!»>, cume into tlie
■•• rriil cotitlut^nce of
«ij'i ^viaiy liiere (^retietit, the
filt» OH I. £a«t*i Picas of the Crown,
mH. 9. if. 8ec aM, iu this CaU
nae iraporlaiBl ObaerTalious on ihi«i
f4 ErOdiM'i Hprech on the Trial of
Ntfdyt A* ti' ]7t^4. And a Note to
' Ooa rBMaleao t)«i fol. ^, p* iCr6.
HI.
prkouer was ordered tobe hrought to the bar4
which was done accordiojjly,
CL ofAr. Sir John Freind, bold up thy i
hand.
Freind, My lord, I humbly move that 1 1
may have one William Courtney (who h to ba i
a principal witness for me at my trral^t and ia.4
now a prisoner in the Gatehouse) sent for.
L. C. J. (Sir John Holt,) Is he your wit-* |
ne&s, sir John ?
Frcind. Ves, my lord, William Coortoey*^
is his name.
X. C. J. Sir John, why did not yoa send,
and desire this before ?
Fretnd. My lord» ! did not hear of him
while last oig^lit ; and 1 ho tnbly beseech your
lordship, that you will please to let him beseol i
ibr.
The Judges consulted among theraseket.
X, CX Look you, sir John Freind^ Til
tell you, if you'll appi^Hol your arrent to t'Ouio
hither, you shall have an ' Habeaji Corpus ai|
tcstiticandnm^ : hut indeed you mi^^ht have »eut
tliit) morning', and then tlie writ uiig^ht ham
beeu tfot ready -
Frcind. I^ly lord, I did not know so much ;
for ii was last night before I understood that he
wa^i to be a witness.
L* C. J. You mi§ht have sent last night, or
this morniug, and you should have had a war*
rant for the writ.
Frcind, 1 assure your lonbhip^ I did uot
know so much,
L, C, J. Well, send your agent, or your
solicitor, and you shall have a warrant for tha
writ.
Freind, I beseech your lordship that he
may be sent for, and that the messenger may
malcc hastt;.
L. C. X Let your solicitor come to my
clerk, and he shall bavp it.
Fraud. My lord, jf you please to give a.
rule of court for iU I suppose it may b« dona
presently.
S] S WILLIAM IIL
£. C. J. No, DO, 8jr John, it most be by
writ; the keeper of the Gatehouse eke caoDot
briofif him.
Freind. My lord, that will be a longf time
before it can be done ; I desire nothioi; but
that f may have him here to give his evidence
for me.
L, C. /. It will be ^t ready presently ; I
believe he will be here time enough for you to
make use of his testimony.
Freind. But, my lord, suppose he shou!:!
not be here : it would be a great hindrance to
me, and a great injury to my trial.
X. C J. No, no, sir John, you need not
fear any thing of that nature, we are not in
snch haste ; we will not spur you on : but the
warrant shall be made ; and du you make what
haste you can to get the writ, and your witness
brought
[The Lord Chief Justice gave order to Mr.
MasoD his clerk, to prepare a warrant for an
Habeas Corpus, directctl for the keeper of the
Gatehouse, to bring William Courtney imme-
diately hither to give evidenoe.1
CL of Ar. Sir John Freind, hold up thy
hand. [Which he did.]
Yon stand indicted in London by the name
•f sir John Freind, late of London, kut. for that,
whereas there had been for a long time, and
yet is, an open, and notoriously public, and
most sharp and cruel war by lana, and by sea,
had, earned on, and prosecuted by Lewis the
French king, against the most serene, most il-
lustrious, and most excellent prince, our sove-
reign lord William the Third, by the grace of
Ood, of J'Ingland, Scotland, France, and lrelf>.::d
king, defender of the faith, ike. All which time
ihe said Lewis the French king, and his sub-
jects were, and yet are enemies of our said lord
Che king that now is, and his subjects. Yon
the said sir John Freind, a subject of our said
•overeign lord the king that now is, of this
kingdom of England, well knowing the pre-
inises, not having the fear of God in vour
keart, nor weighing the duty of your allegi-
ance, but being moved and seduced by the in-
stigation of the devil, as a false traitor a<;ainst
the said most serene, roost clement, and nost
excellent prince, our said sovereign lord Wil-
liam the Third, now king of England, <^c. your
supreme, true, natural, rightful, lawful, and un-
doubted sovereign lord ; the cordial love, and
the true and due obedience, iidelity and allegi-
ance, which every subject of our said sovereign
lord the king that now is, towards him our said
sovereign \wd the king should and of right
ouffl)t to bear withdrawing, and intending ut-
terly to extinguish, and contiiving, and with all
your strength purposing, designing, and en-
deavouring tlie government of this kingdom of
England, under our said sovereign lord the
king that now is of right, duly, happily, and
Tery well established, altogether to subvert,
change, and alter, and his ^'thtial sobjects^ and
the freemen of this king[dom of England, into
uitolerable and most miserable slavery to the
albnwud Fttath king to subdue ana Iniiig ;
Trial of Sir John Freind^
the first day of July, in theVeventh yea
reign nt' our said sovereign lord the ki
now is, and divers other days and times,
before as after, at London, m the parish
Peter Cnrnhill, iu the ward of Lirae
falsely, maliciously, devilishly, and traitc
did compass, imagine, contrive, pur|)n
intend our said sovereign lord the king tl
is, then your supreme, true, natural, r
and lawful sovereign lord, of and from tli
state, title, honour, power, crown, con
and government of this kingdom of Eng
depose, cast down, and utterly to dopriv
our said sovereign lord the king to death a
destruction to put and bring ; and the ai
Lewis the French king, by his armies, s
legions, and subjects, this kingdom of £
to invatle, fight with, overcome, and sut
move, incite, procure, and help, and a i
ble slaughter among the faithful subjects
our said sovereign lord the king, thro
his whole kingdom of England, to ma
cause ; and tliat you the said sir John Fi
the aforesaid enemies of our said lord tl
that now is, then and there during tl
aforesaid, traitorously were adhering and
ing : and the same your mcst impious,
aud dciilish treasons, and traitorous co
iugs, intentions, and purposes aforesaid t
perfect, and bring to effeet ; and in prose
performance, and execution of that tra
adhesion, ^'ou the said sir John Freind, i
a false trailor', during the war aforesaid,
the same first day or July, in the year
said, at Xondon aforesaid, in the pari
wanl aforesaid, and divers other days and
as well hef(.re as after, there and elscw
London rforesaid, falsely, ma]iciously,a
ly, secretly, and traitorously, and witi
and arms, *&c. with one Robert Chamoc
of high tr<:a8on, in contriving and con
the death of our said sovereign lonl ti
that now is, duly convicted and attaintc
with divers other false traitors to the jur
known, did meet, propose, treat, consul
sent, and agree to procure from the at
Lewis the French kmg, of his subjects,
and soldiers, then and yet enemies of o
sovereign lord the king that now is, grea
hers of soldiers and armed men this king
England to invade and fight with, and t
procure, and prepare great numbers of
men, and troops and legions against o
lord the king that now is, to rise up
formed, and with those enemies, at an
such their invasion and entry into thii
dom of England, to join and unite, n
and war against him our said lord th<
within this kingdom of En^rland, to
levy, and wa^e, him our said lord tli
so as aforesaid to depose, and him
and murder ; aud moreover with th
false traitors, the same first day oi
in the yeai^ abovesaid, at London af<
ia the parish and ward aforesaid,
ously you did consoh, consent, and ai
scod the afortsaul Boberl Chamock as
5J
^or High Trea&on,
t jtm tkm Atfi fiir J oho Freind, and
4tmim9dmr ^mlmrs uiikn^^*^ ^' ^'"*" ^nij into
iiliafdioiis af Klr«iiee, in ul tlie
|lD mpoM to }i
fltl tnml meo nforffesiiil, Ittr the invaMon
I Ml be made; and iuMii«j^i'nce and no-
~ I tlteir trtitlDmus intention!;, and ad-
iffn^ at! the premiKes uniolhc «aid late?
rian»^ nnd iKe siuid ^lUle^^ne-
1 L s, to give and exhibit,
I Si> iDluruj ot fiiher purliculai' things
Of nffeaoMtiiieefl lUprcunln t-etntin>r ; a$ also
Mfifme* Ircini liiem of ihe said intrnd(^d in-
tMB^ aod ofh^r things and ctrcutfigtuncfs
^^■Bvattiif tli€ prnuises Li receive, and the
BSMilPy^u th«f saitd sir Jolin Freind, ami tbe
^^iVA^i^iT traff#r« in this kin'^'iioin of Eii^land^
^■li m^^y, r«OArt and deeluf^, in assistance,
^■aaaMi, mtm aid of the tiaid (enemies of (nir
ail Wi ike kine t^at now ti,tn the >tiir afure-
^il, fell Id iacite 4iid |»riK'iire iliost.' rnrntif^s
ttvaart fm«bly ftod boltU^ ttM
4m i# £i»|vf ftnd ; andthetrt^i- <i-
f«i Q«t»iv»4M:e9, cotn|iiis«siii{7!i, i)na<;iriiUiotiH,
i>f Tuii ibe S4id sir John Freind
1 1A perfect and hdtit ; and all the pre-
■i Omi tfimiier to t'lrecuti', mffiiace and per-
Bt |«Mi tlie ftiid sir John Freind, diii'iu:^^ the
riMHud, so «s aforesaid continued, tu wa,
! tnee fint day of Jnly<t in the ahovesaid
I y«mr of lite reit^n ol our ttaid lord the
kflff ((kit IMW tit, ait li>ndon uforesaid, tn the
fMA«ai| Irani aforesaid, <Al««ly u:m1 trmtor*
Oiii M |f#f)e(ire and obtain to yourself, and
^tmmft ajul Bc^rept o( a <!iertain comniiSHion
• ^i«af^tfr|iurtuig it*elf to be u commis!»ion
Mia m4 &OCU the «tVjivsuid Jan^e;! the se-
flBVl. ytikmi^ of Eni^lftiid, to constitute you,
•i aif lit Jotitj Fretnd» to lie a e<»lonel of
!■«« tbe army by you and the other lals^e
^■■Miac^uist Qiir»uici Ion! the king that nnw
m,wAm ibi9 kin^dt^rn of Enj^^tand to h^ levied
fliifann#4 ; and in nnr«nanee of the natd pre-
iitififfiiiaKion by you ihe said Mr John
o^rtaioed and acceiiied of, and ym\r
all your traitorous intentions
llie«ooo#rtor\ : m, fulHI,
9i avyfSrrf, yuu ibe faid ! ai ur-
^M^|r* nit^tJiasameiD^i u •> 'm .mh v, in the
yc»r abovc^aid, at Lonilon afuiefinid, in
♦ « .,.1 <inri»8aid, r«!sfly, ma!j»i*
illriil^^ I '. , and Iraktorciiisly, di>
iikin aik[l rpulv lO Ijc
^e, and
ud U»rd
And to
d ene-
i<*id iUt? ktw^, lurtignefii and
«a%rrt« and koldo t- of the aai I
*Frr h<*iji^ about to invade
i, »i ami upon tbeir in-
I t4(doni, titen
» selves lij^je-
TU \nu iUr sM'i »u ,»iM8iJ r ri'Mid lo join
aod teutons ta luriDi
did raise, list, and retain^ and did procure lo be
raised, lissted, and reta^ined ; and diners sums of
money, in and about the raising, liatinff, and
retaining^ of the aforetiaid suldtcrs, and man !
arnried, and ready to be armed upon the ac*
count atbre^uid, upon the a(oresaid lirsl day of
Julvt in the seventh year ab^iveaaid, at Londoa
nfofesaiil, in the parish an»l ward aforeiaid,
ialsly, mallcinuitly, and traitorously, ilid gire
and pay, and cause to be paid ; and those so^
diers and men, for the treasons, intefilion^ and
purposes aforesaid, then and there, and Inojf
aikr you had in readioess. As atsn the same
rtrst tfay of July, in the sefenth year nhnvesaid,
at London aforesaid, in the parish and ward
aloresaid, diners borses, and very many arms,
Cfuns, carbine^i pistols, sviords, atid other wea-
pons, ammunition, and warhke thinyfs, and mi-
iilary instruments, falsely, malidoui*Jy, secret-
ly, and trai*orou*ily you did obtain, buy, jj^at her
and procure, and caui>a to be bought, ^^uthered,
obtatnefl and procured, and in your custody
had and diftained, to thai intent to use the fame
in the said invasion, war and rebelfion, against
our said sovereig-a lord the king that no*v it,
hitn our said lord tlie king of and from the ra-
jfji slate, crown and command of this kingdom
uf England to ileposc*, cast down and deprive,
and liim to kill and ninnlcr, and al! the trea* i
sons, intentions, conlrtvances and purposes of i
you the said sir John Freind, as aforesaid, to
fulfil, [jerfect, and fully to bring to effect ;
ai^iiinst the duty of your alk^giance, and against ^
itie pcract of our said sovereijrn lord the kin^
that now is^ his crown auti di^fnity ; an also
aq'alnst the form of the statute in this case
lUiidc and provided.
What nayest thou, sir Johti Freind, art thou
guilty of tlushiifh treaM>o wheTeortlioustaudeil ]
tnrlit'ietl, or not tjuilty ?
Ffcind. Not guilty, my lord. i
CL of Art. Culprit, how wilt tUnu be tried f
Fraud, By Ciod and my country.
CLif Arr. Gvd send liiee a good delirer*
ance.
Freind. I don't know any thing of it, I ata |
OS innocent as the child unb^irn.
The Warrant for the Habeas Corpus %rat
sijjnc<l by the Loid Chief Justice Hoit, and de*
Itvered lo the priso ntr^ who ti-ent it away to tho
Crown OtKcc by hia solicitor, to get l1ie writ '
scaltd.
FrfifuL My lord, 1 have something to mov^e, ,
if your lord^iup please to hear nte, and the rest
of my Inrdn the judges : Thnt rt any uiaHer of
liiw doth arise upon my trial, I may be heitrd
by my counsel, that you may niit deairoy mm
withrvut law.
L C. J. Look you, sir John Freind, If any
matter of law ilo arise at your trial, and yo«a|
will tell us ^liai timt inutler td' law is, and the
court see that it is a matter of doubt, we ran^
and ou^ht, aifd no quciftton Khali asaign yon !
counsel J but tharis tuue euough when sucb'
matter does urise,
Freind, !^1y lord, it is well kuomi to your
n
ft WILLIAM tIL
lordship, and all the coart, that I am not a law-
jrer ; but I hope, as you are of counsel for the
king' as judges of law, so you will be of coun-
sel for me ; for I am not a lawyer, and cannot
know whether any matter that arises be law or
do; aud therefore I humbly beseech your
lordship to be so just and kind, as to tell me
whether it be law or not law, and I submit my-
■elf to your lordship's direction.
L. C. J. Sir John Freind, we are bound to
tell you \ihen any thing of that nature appears
before us, and to let you have all the benefit of
the law that possibly you can have ; for we are
obti{;(ed to be iudiiferent between the king and
you.
Freind. My lord, I don't question it. I
desire also I may have pen, ink, and paper.
L. C. /. Yes, yes, by all means. [And he
had them.]
CI. of Arr, Crier, make proclamation.
Crier. Oyez : You good men of tlie city of
London, summoned to appear here this day, to
■ try between our sovereign lord the king and
the prisoner that is at the bar, who have been
<»tlled,and made default, answer to your names,
and save your issues.
[Then the Defaulters were called over.]
CL of At, You the prisoner at the bar, these
men that you shall hear called, and personally
appear, are to pass betweeu our sovereign lunJ
-the king and you, upon trial of your life and
death ; if therefore you will challenge them, or
any of them, your time is to speak unto them
as they come to the book to be sworn, before
they be sworn.
Critr. Call ThonAas Clark.
Freind, Pra^, Sir, how many may I chal-
lenge ?
£. C. /. Look you. Sir John, you may
challenge, that is, except against 35, without
shewing any cause : if you don't like them to
be of the jury, you may refuse them ; and as
jmany others as you have cause to except
against.
Freind. My lord, I humbly beseech you,
tliat because perhaps I may mistake in num-
bering, that 1 may have timely notice before
the 35 be excepted against, or else it may oc-
casion me a great deal of prejudice.
L. C. J. Sr, the clerk shall take care of
that, he shall inform you how many you chal-
lenge, and you shall receive no prejudice of
that kind, or by any slip in point of form.
CLqfAr. Cryer,calir - "
appeared.)
CI, qfAr. Cryer, call Thomas Clark. (Who
Freind. Pray, Sir, must I not see the gen-
tleman ?
L. C. /. Yes, yes, by all means. (He was
shewn to him.)
Freind, You may swear Mr. Clark ; I do
not except against him. I desire but honest
gentlemen^ and I shall come off, I warrant
you : I am as innocent as the child unborn.
L.C.J. Swear Mr. Clark.
CL qfAr. Hold him the book ; (which was
done) look upoo the priwMier: You shall well
Trial of Sir John Freind^
and truly try, and true deliTeraiioe
tween our sovereign lord the Idng ai
soner at the bar, whom you shall have
according to your efiJIeiice. So help
Ct. of Ar. Nathan Green.
Freind, I except against him.
CL ofAr. Thomas Emms.
Freind, I accept of him for a ji
have nothing to object against him.
sworn.)
Ci, ofAr. Francis Byer. ^
Freind, Pray let me see him (He ^
to him). I do except against him, I
him.
CL qfAr. Benjamin Dry.
Freind. I except against him.
CL qfAr, James Demew.
Freind. I accept him, I havenoth
against him, I would have him to I
man.
Demew. My lord, I am not a f reel
L. C. J. Sir John, do you challen^
remptorily, or do you challenge him 1
Freind, My lord, I do not challen
all, 1 accept of him.
AU. Gen, (Sir Thomas Trevor.)
no freehold, we that are for the king
cept against him , for I would not
body that is ibt a freeholder serve
jury.
CL ofAr. Henry Hunter.
Freind, Pray, my lord, is this {
that was called before hud aside ? He
tliat I challenge.
L. C, J, No, no, he is challeng
kinpr's counsel, as no freeholder.
Freind, Then he is only set aside, 1
I speak it for this reason, I would nc
taken in my number.
L. C. J, Care shall be taken of all
is not to be reckoned as one that
lengcd, he is challenged for want oj
by the king's counsel.
CL ofAr. What sa3r you to Mr. ¥
Fremd. I accept of Mr. Hunter, 1
swore. (Which was done.)
CL qfAr. John Cox.
Cox, My k>rd, I have no freehold ii
An, Gen. Then let him be set asid
CLoJAr, George Bodinffton.
Freind, I except against him.
CL qf Ar. John Hedges.
Freind. I except against him.
CL qfAr. You challenge him, Sir
Freind, Yes, yes, I do.
67. qfAr. John James.
Freind, I challenge him.
CL qf Ar. Thomas Poole.
Freind. I accept of him. (He wi
CL qf Ar. Peter Parker.
Freind. I accept of him. (He wi
CL f^Ar. George Grove.
Freind, I except against him, fc
him not in my pannel.
L. C. J. How conies that P
Freind. I can't tell, my lord ; I 1
kept alone while Satniday last, only
9
fur High Treason*
Jin Mr, Baker, the \\m-
f) WAS mlU me to give me
[b Wyersdale,
btiiieuee him,
'smtifrf Bbwitt.
Uilili li^^tr hi III.
'i>hn Wolfe.
1 «io assure yon I lia^e Liim not
' Ujjon my Honl. I clialleti^re
I Jaclfsoiu
f of Kirn* (H« was sworn.)
ktiiel Jjotig',
' of him. (He was sworn.)
rd I'lii^welK
i _ uge Um.
mi»^if^e Child.
nBcent of him* (He was sworn.)
t WiBiiieu Walker.
of Ijirn.
Willi.
him,
5>ert.
IIQ.
I.
(He was sworn.)
n
Sir, he i& not in my pannel, upon
r. tic is tn the original nannet.
BluribiJit^'Ajim, M)^ hinl. Liei^ U the
teeel, tnU here^s his name here ;
I moi m person in this paiinel^ but
■aCV>^l> put i<)<i e\ci<pt it he about
Mlbt «ii4l, aiifl this is none of them.
IdMllMiipehini.
I^TIlomss Hollis. (tie did not
^Hnr« Sir John, who had you that
^BUo |(tiv« It you ?
^K ISoticiiur.
OM, My lord, be bad none froru
mmr: I receifeil the panneJ from
It ImI Dobody, irom sir John, was
B9 Ibr • copy.
My Kird, uiy snlicttor brought it to
larday itta^ht.
W ho » }'<»ur solicitor that gftre you
His nmme is Mr. Burleigh, my lord.
» Wh«r«t« hef Let's see this Mr.
r lonl, he is ^one to the Crown-
, for the Habeas Cor|fus.
It IS your own Miilicilor that
' no yiHi, if it be m.
!• Hallis. (He did not ap-
ITt sir Joho Frttnd, how many
tny lord ? Would ynu
llMifroMUiy 1 httve in numlieri*
Ife mOB&et uk your copy of
A. D. 1G96. f 10
SlittufT Burking/nim. In the pannel there
are nhove fourscore.
Frcind: I ha\rescienty-one,aiylord. [Then
Thomas HoHis appeared ]
C7. of Ar, L>o you challeug^p htm, Sir ?
fcJh, Buckingham. Pray hi tht* Stvi*iifJary
produce lus punuel that iVe had from my bro-
ther and me, and I am surt^ the court vtill (ind
they were all uumeil in that pannel.
j^lr. Trotmariy My lord, I have the pannel,
but ihey never came to me for a eopv^ as [ ex-
pected i J had ^iit Ohe ready ; it sir Jidm
Freind, or usiy p**(>r»n hir him> hud sent to me,
they nnght have bad it.
h\h Bucktrtgham. And these people that are
not in sir John Freind's pannel, are none of
the balf-flozen that ii ere added, >4 hen we came
to the ktioHl«.ilgeof them that they were free-
holders.
L C. X When were thry added, 8ir ?
Sh. Buck, Tlipy were added on Friday in
the nfiernouu, aiid it seems he never came for
the pannel to the proper officer ; and those
that lie objects against were not added, hut are
in thporiijinal pannd.
L, C, X Truly, I cannot see any body is to
blame in this matter but your own ibolicitor.
Mr. Trot man. My lord, 1 assure you 1 had
made a copy, iiud wondered I did not henr of
them : J fh» nut know wbere he [^nt this copy^
L. C J. fttti/. Jn truth, if yciu wonkl not
send loiheprnper officer lor a c*tpy, when you
mif^ht have had it, you must be content vvith
what you ha^e; tor noho^ly h bound to give
you a copy, UTde*s you ask for it.
L. C. J. Well, what suy you to Tbonaai
Mollis?
Fret nth 1 challenge him, my lord, for he is
not in my panueL
C7. f»/ -*1^. J^^hn Sher brook.
Freind, I accept of biui, (He was sworn.)
CL vf Ar, Jauies Black well.
Frand. He is not ill my pannel, upon my
word, u\y lord,
X. C. X 1 cannot help It, be is in the sherilf ^s
pannel iliat !•> returned here.
Ff tint/. 1 c h a I lenjje hi m .
C7. of' Ar. 'llioinas Cwardner,
Freind. 1 accept of him,
Guidner, My lord, I ann no freeholder in
the city.
Just. Roktb^. Mr, Carclner, have you not
lately c<iuveyed away your freehold f
Gardner. No, indeed, my lord, 1 never had
any.
Cl.ofAr. Wiliiam Prince.
Frvind. 1 accept of him. (He wasswom.)
CL ofAr. John MiuKins.
Frnnd. I challenge him.
CL of'Ar. Robert White.
Fremd, I challenge him*
Ct, of Ar. Josepli More woo J.
Frtmd. I accept him ; his name is John, 1
sumMMe, for ku it is in my pnneh
CL qt Ar. No, it is Jo«H:pb.
ASarrtcood, My name is Joseph*
Freind, Well, Sir, 1 accept of you, 1 don*l
llj 8 WILLIAM IIL
quertkHi bat yoa are ao honest man. [He
wan sworo.]
CI. of At, C'ryer, countez. Thomas Clark.
Cr\ftr, One, &c. [So of the rest to the
last.] — CL of Ar. Joseph Morewood.
Cryer. Twelve good men and true, stand
together, and hear your e?ideace.
The names of the Jury were these: Thomas
CUrk, Thomas Emms, Henry Hunter, Tho-
mas Poole, Peter Parker, Samuel Jackson,
Nathaniel Long, Creorge Child, William Wal-
ker, John Sherbrook, William FriDce, and
Joseph Morewood.
Cl. of Ar, Cryer, make proclamation.
Cryer, Oyez. If any one can iut'orni my
lords the king's justices, the king^s serjeant,
the king's attorney- general, or this inquest
now to be taken, of the high-treason whereof
the prisoner at the bar stands indicted, let them
come forth, and they shall be heanl ; for now
the prisoner stands at the bar upon his de-
liferance; and all others that are bound by
recognizance to give evidence against the
prisoner at the hwr, let them come forth and
give their evidence, or else they forfeit their
recognizance ; and all jurymen of London that
have been called, and have appeared, and are
not sworn, may depart the court.
CL of Ar. Sir John Freind, hold up thy
hand. (Which he did.) You that are sworn,
kK>k upon the prisoner, and hearken to his
charge : he stands indicted by the name of sir
John Freind, late of London, knight (prout in
the Indictment, muiatii Mi//auJ<«J, and against
the form of the statute in that case made and
provided. Upon this indictment he hath been
arraigned, and thei-eupon hath pleaded Not
Guilty, and for his trial hath put himself upon
God and the country, which country you are ;
your charge is to enquire. Whether he be
^ilty of the high-treason whereof he stands
indicted, or not guilty ? If you find him guilty,
Jou are to enquire what goods and chattels,
inds and tenements, he had at the time of the
high-treason committed, or at any time since :
if you find him not guilty, you are to enquire
if ne iled for it : if you tiud' that he (led for it,
you are to enquire oV his goods and chattels, Vi%
if you had found him guilty: if V4>u find him
not guilty, nor that he did fly (or it, you are
to say so, and no more, and hear your evi-
dence.
Mr. Montague, May it please your lordship,
and you gentlemen ot the jury : this is an in-
dictment of hi;xh-treason, tiiat is hrnui^ht
against sir John Freind, the jtrisoner at the liar,
for assiociating with, and aiding the king's ene-
mies, with a dcKigii to procure an invasion tr<iin
France, and to raise a rebellion within this
kingdom ; and this was to deposo the king,
and to restore the late king James ; and in
onler to the eO'ecling thi'.se his u irked pur-
poses, the indirtment sets lorth. That the 1st
of July last, he did meet, and con-iulr, and
•g^ree with one Mr. Charnock (a gentleman
since tried, convicted and attahiteu of high-
tnaaoD}| hovr they should procure an army
Trial of Sir John Freind^
[1
from France, to come and invade thiskia|
dom ; and sbouki raise a suflicient nnmberi
men to facilitate the landing of the FrsMl
and the indictment particularly chams ll
prisoner at the bar with sending Mr. Cnanitd
into France, to the law king James, to aeqnsa
him with the design, and to desire him topN
cure a great number of Ibrces from the FrsM
king, to come here, and land within this kii|
dom : and the indictment does likewise cImiI|
hiui with procuring and receiving a oommi
slun from the late king James, to couatiM
him, the prisoner at ihe bar, a colonel of hom
and likewise with laying out, and ex:pendi^[
a:id paying several sums of money id lislii
and kee|Mug soldiers and men in pay noil
him, which were to be in his regiment; m
w ith laying out several sums of money in bq
ing arms and horses for this inyasioD and v
belliou that was tlius designed to be made, M
raised within this kingdom. To this, gen
men, he has pleaded not guilty : we shall ii
our witnesses and prove the fact, and wmi
not doubt but you will find him so.
Freind. Prove this if you can; itcauM*!
Att. Gen. 31ay it please your hMrdshif
and you gentlemen of the jury : the prisQa
at the bar^ sir John Freind, stands indioted i
high -treason, in compassing and imsmii
the death of the king, and likewise in adnerk
to the king's enemies.
Gentlemen, the overt-acts laid in tlie i
dictment to prove this treason, are these:
That the prisoner at the bar did aoocpl
commission iVom the late kin<^ James, to lai
a reg:imcnt of horse in this kingdom, in Old
to jom with the French when they invaded I
and there were several meetings and consolh
tions between him and several others who
you will hear named by the witnesses ; upc
which it was resolved to send a roessentfc
one Charnock, into France, to desire the la
king James tu prevail with the French Idng t
get a number of men, in all 10,000, witn i
assurance that they would assist him wilb
number of horse when he came : and in pn
suance of this design, the prisoner at the hi
did raise men, and pay some sums of aioa|
((ir their subsistence, and listed, and had tlMj
in readiness ; and provided horses and ani
These are the overt- acts laid in the indictmcAl
the evidence that will be produced to yoo, I
proie this treason, and these overt- acts, «l
be in this manner.
Cientlemen, you will see by theevidencetb
there has lieeu a debign and conspiracy ob fb
for several years to assassinate tne king's pfl
son, and to have an invasion from Fi'unce
that time, by armed force here to subdue tfc
kin4rdoni. The pri*«oner at the bar, sir Jol
Freuid, I think about two years ago had a cOC
mission sent him from the late king Ja0H
to raise a regiment of horse : there was sevd
other commissions sent likewise, but one *
sent to the prisoner, whteh he accepted of ; •
in pursuance of it, he apjNiinted several ^
cerS| and listed several uien for that pni|i0
Jbr High Treason
ims of money for the
of Ihfm.
iti Will bear that \m lieutenant
Rfn ' * ; ijor was
Blftter ; ftnd tl nasa
t, aiiid !"• ' V I', .-.iiig" in a
lerg;jiiit : I rerusf>d to taie
Clneol i,. , . ;;;s was une Evans;
bCNI WiA annttHr; »ntl ttiere Here
wliom vou will hear
, that wero an pointed,
llip rriiiruent.
rby llieifit-
f, tliey Ua^-e
iiilift ot' nieo, there
between the prison^r
other jiersonx, in order
|»eiifoci Of?er to get forces from
hBwmdtP thh kingdom. The firnt
will henv (A\ was ^t the Old
in L^deuhali-strect, and
iia prisont^rat the bar, nw
y lord Moiil^Timerj, sir
llliam Perkins, !\Ir.Char-
Gondemneil and executed
;Aifirdering tlie kingf,) Mr.
' k. A I thnt meaing you
ikbatcs were, iind what
l«r s^reral debates, who
lli6y resolved to send Mr.
to ^ mlo i^rance, to desire the late
I lo fl€ 10^000 men of the Frf^iich
mir poasis, about 8,CK>0 icot,
ckoci^ n- '' '■ IIS ; and they did
iLj' m assure the late
t Ul, whenever be
r r^f^^ ready to as-
inu lucFa^and borse amoog
leo, Mt, Chariioek umler-
meiisa^e : about a week
fnr \\f \\i\< ui'wWXiu** frt
i^mod, ^'' a full
\c< ileraen
l» tbat bf- lUTC^iit salislj
would c^'itiiinly do.
ml a week aftei'i and that
Jttmes'it-9treet, near sir
one Mrs. Monfjoy's;
the bar, my lord of
-me con I [may that
^ — nd Mr. Charnock
i In ^gree to wImU had
J before; for he
^ * " ■ t nit
1^ A
uil
? Jamey,
f! ..... .^Ly bad
\\w tifne when
irJuna
iiidcrs;
whca
iigfljuid
.i they
A. D, 169a [ri
discours<?cI thit matter, the people being, as ibey ^
Baidt generally dissatis6cd, and but few forces ^
io Eni^'^tund to oppose them,
Mr. Charnock accordingly went over into \
France, and about a montli atier returner!
a^ain, and acquainted tlieui that he had toM
kmg^ James their resolution^ and b<»w they
would asKijit hius and what they desired of ^
him ; aiidfin short, had detiveredliismesfag^e:
but what king James told him, he thanked
them very much for their kindness aoil readi-
nesa to as>iist him ; but at that time the French'
king could not spare any forces, nor coulil it be i
ati that summer^ and so there was nothing t<»l
be done ; and thereupon it rested lill the Us^
winter, i
Then gentlemen, you will hear, that the last ]
wintfTthe design was renewed a^ain, about Ja«
nuary last ; for sir George Barcley tv^ _ic over
from the late king, being a lieuleniJk^ in hii (
g\>ards there, and then they entered into a con-
si piracy to assassinate the king ; and that was
to be clone first to facilitate the invasion, wbicU
was to follow immediately upon the execution
of the assassination: For they thought ihej?
could hive no assurance of success in their lu^
vasion, as bug aa the king lived j and I hope
every one will lake notice, how precious that
lite IS to us, when it is so apparent to all the
world, that our enemies cnnnot hope for any
success to iheir eoteqirizes and designs to de-
stroy us, but by taking that litb away.
Gentlemen, this very conspiracy, you will
hear, the prisoner at the bar was acquainted
with, and privy to, eveu ibis assassmatiou ;
though indeed you will hear he did not much
approve of it, because he thought it would be &
disscn'ice to the lateVmg^^s affairs ; but he wa«
at serei-al meetiags wilh IVIr. Porter, and Mr.
Charnock, and sir William Perkins, a»d eeveral
others that were conspirators in that design,
;md wa^ acquainted with il, as you will bear by
the evidence*
Gentlemen, yon will hear further, that aboul
Janunry last, the invasion being intended to be
?tnckly made, the prisoner at the bar< sir John
'rciodfhad frequent meetings with Dlalr, that
was lieuteoant-colouel, and other ofBcers, to
consider and prepare how to be in a readiness,^
About that time the prisoner at the bar, captain* ]
Blair, and one captain Ridley, met at a place
in E jcch an ge- alley, and there they discoursed
among one another; and there Ridley said
there was a considerable Roman Catholic
that waa sent to king James^ and \m would'
bring the last orders ; and bir John Freind'
said he knew of it very well, it was so, and'
be hoped he should have them brought very'
quickly. <
At auother time, the prisoner at ihe bar, and*<i
Blair his lieutenant-colonel, met at Jonathan'*
coffee-house, and the prisoner took him un in '
his coach, and carried him along with hitn,
and there they had a great discourse of the
aflkirs of the regiment. The prisoner at th«
bar, sir John Fretnd, told Blair they must be
very good bu&bands of their money : for If tht '
15]
S WILLIAM III.
Trial qf Sir John Freind,
[1
invasioD iliould miscarry, he should not have
inooev enough to carry on his trade, but he
ivoulcf take care about some officers that had
not money to mount themselves ; hut a great
many were to prepare for themselves at their
own charges, and for those that were to be
under them. They had likewise then some
discourse about the Toulon fleet coming about,
and that he thought it not advisable till the
Toulon fleet came round. He said he would
not put a foot iu the stirrup till that were done ;
and that he would keep out of the way till all
was iu a readiuess, and advised captam Blair
to do so too.
Gentlemen, you will fmd it further proved,
that about May last, the prisoner at the bar paid
20/. to this captain Blair, who had laid out
monies in the aflairs of the regiment, and this
was to reimburse him what he had so laid out ;
and it was in this manner : You have all heard,
I suppose, of one colonel Parker, who being
taken upon his coming over from France, was
a prisoner in the Tower, but made his escape
from thence, to which escape the prisoner at
the bar was privy. This escape cost 300/. as
you will hear, and the prisoner laid down 100/.
of it. But this was to be repaid him ag^in:
but how was it.^ There was one Johuson a
priest, a conspirator likewise in this design of
assassinating the king, and he undertook and
promised, that the late king should pay this
100/. And accordingly one Piggott went over
into France, and had this 100/. paid him by
king James, to repay it to sir John Freind :
but ne thought flt to keep the money, and sir
John Freind could not ^ei it of him, and he
durst not ask it, because he knew the considera-
tion was not flt to be made public. But he
told captain Blair, I cannot pay you the money
out of my own pocket ; but Pio;gott ouj^ht to
pay me, who has received this uioney ofmine.
It you will prevail with Johnson, who got this
money from the late king to be paid to Pi^gott,
to persuade Piggott to pay this 20/. 1 will allow
it in part of the money he is to pay me, and
you shall have it. Captain Blair did prevail
with Johnson to persuade Piggott to pay this
SO/, and cajitain Blair did receive it, and sir
John Freind did agree to allow it to Piggott
out of the 100/. due to bitn.
Gentlemen, at another time, about Christ-
mas last, there was another 20/. paid by sir
John Freind's order and direction, by Piggutt
to Blair, u[)on the suiuc account, by the me-
diation of Johnson the priest ; and this was
paid and allowed, as being laid out in the aflairs
of the regiment before, he being intrusted as
lieutenant -colonel to look atler the regiment.
Gentlemen, I have now opened the substance
of the evidence; the particulars you will hear
from the witnesses themselves. If I have
opened it amiss, you will take care, when the
witnesses are proiluceil, to observe what they
say, who wi>l tell yon what really was done,
and \\\\\ rectify any mistake of mine: for I
would have no such mistake to do the prisoner
•t the bar any prejudice.
Sol. Gen. (sir John Hawles). Gentltnia
Mr. Attorney has opened the nature ud cow
of our evidence so fully, that I shall malm ■
repetition of any of the particuhirs; but ^
our witnesses, and prove it in order as it W
been opened. And first, we call captain OtiM|
Porter. [Who came in.]
Freind. BIy lord, before Mr. Porter is swan
I desire to know whether he is a Uoman Oi
tholic or a Protestant?
L. C. J. Why do you desire that ? Is not
Roman Catholic a witness? Though be be
Roman Catholic, that is no objection to hb be
ing a witness.
Freind. My lord, I desire to ask him th
question, whether he be a Roman Cathtii
or no?
L, C. J. Sir John Freind, it is not a prop
question.
Freind. My lord, a man ought to know wli
profession they are of, that are witnesses agiin
nim for his life.
L. C. J. Will you ask him whether he bt
Christian or no ?
Freind. My lord, 1 desire to know wkatb
he be a Papist or a Protestant.
Jtt. Gen. If Mr. Porter be willing toll
yon, he may ; but it is not a proper qnrslic
L. C. J. Especially before he is sworn ; |
is not intitled to ask any questions wbateti
till he be sworn.
Freind. My lord, I beseech you let iiie fan
the question answered.
Soi. Gen. Sure you don't consider, that ll
answer to that question is to accuse hioMill
you don't consider the consequences of it.
Freind. Pray, my lord, let me have fli
right.
L. C. J. The question is, Whether it if jm
right or no ?
Freind. Mv lord, I would not trouble tl
court if I could help it, but my life and all is i
stake, and I must make the best defenca I csi
X. C. /. Indeed your question is improfii
iu itself; but if he nave a mind to tell yoi
and answer voluntarily, he may.
Freind. I humbly be^ your lordahip thi
he may answer the question.
L. C. J. I cannot see you have a right ^
have this question answered you. !
Freind. Mr. Porter, you are a gentleoMI
and I desire you will answer, Whether yoa I
a Roman Catholic or not ?
Sol. Gen. Before he does answer, I d«l
he may be acquainted with the danger : he HI
bred a Protestant, no doubt, and then tamil
Roman Catholic, he subjects himself tO( a ?«
severe penalty.
L. C. J. i^lr John Freind, I told yoa yoi
question was not proper to be asked.
Freind. Pray, my lord, let him answer tl
question, it will be of great use to me in ■
trial ; pray let me have my right.
JL C. J. You shall have all the right ta
you that can be; but in the first place, if.
man be a Roman Catholic, notwithttaiidiaKli
rdigioD, he is a good witoeai : and beMdci tM
jbr High Treatoih
lif uwwcring the question may sub-
» screral peualties; at least be is
•ecnCkiD upon several acts of par-
t are rery penal ; and therefore it b
• to be asked.
Bly lord, 1 pray only that he may
question.
No man is bound to answer any
St tends to make bim accuse bim-
ect him to any penalties.
M^ lord, I do with submission de-
it Ts no f^reat matter for him to say
he a Papist or Protestant.
If it be uo crreat matter, then why
It upun it T But perhaps it may t>t*
ter in the consequence of it to him ;
pfore, is not obliged to answer any
MIS.
I beseech your lordship, let him
question.
You have my opinion ; if you will,
i¥e the opinions of the rest of the
opinion is. That the question ought
9wered.
Treby. Since your lordship's plea-
it we should deliver our opinions
oint, I must declare, 1 am of the
>D. that no man is bound to answer
nsthat will subject him to a penalty,
f . If you should ask him, whether
Jeer- stealer, or whether he were a
ir any other thing that will subject
lishmeot, * either by statute or by
w, whether he be guilty of a petty
tbe like, the law does not oblige
irer any such questions.*
Well, I hope the jury will consider
; will not answer the question ; and
bey are to take it for granted that
Trefy, And now to this present
I ask a man whether he be a Fopish
is to subject him to danger: for
ask him that question, if he were
IP in that relijgion, then for him to
If of that religion now, is to own as
me as that you are charged with,
not si>, but he was always bred in
HI, yet there are very great penalties
luhiect to, as, the confiscation of two
of his estate, and several other things
IT be liable to, if he should disclose
liis answer to the question, which
bis discovery could not "be proved,
We must keep the law steady and
een tbe prisoner and tbe witness,
'm/. I am of the same opinion, it
ct bim to a penalty ; and unless he
Urily answer it of himself, I think it
demanded of him : for he may sub-
tf to a prosecution by it.
!sMy. I think, it is not a question
if r^t be imoosed upon him ; be
111; but he is under no
A. D. 1699.
[18
vii, if be will
UU.
ooDocfumilf
e. 9. a. S.
this in
obligation to answer it, because it may tend to
accuse himself of a crime for which he may be
prosecuted, and likewise will subject him to
other penalties, which the law cannot compel
bim to subject himself to.
(Then Captain Porter was sworn.)
Freind, 1 hope, gentlemen of the jury, you
will consider this.
Sol. Gen. Mr. Porter, do you know sir John
Friend, the prisoner at the bar ?
Capt. Porter. Yes, Sir.
Sol, Gen, Pray then will you give my lords
and the jury an account what meetings you
have had with him, where those meetings were,
and when, and what passed between you, about
inviting the French over hither, or for a rising
here?
Porter. My lord, about the latter end of
May last, or the beginuing of June, we had
two meetings; one was at the King's- Head,
in Leaden liall- street, and the other at Mrs.
Mountjoy's in St. James's-street. At the fu-st
meeting there were present my lord of Ailes-
bury, my lord of Montgomery, sir John Freind,
sir Wm. Perkins, sir John Fenwick, Mr. Cook,
captain Charnock, and myself; afler dinner
Mr. Goodman came in : now at both those
meetings it was consulted of, and agreed, to
send captain Charnock into France to kine
James, to desire him to borrow of the French
king 10,000 men to come over hither, 8,000
foot, 1,000 horse, and 1,000 dragoons. Capt.
Charnock said, he did not care to go upon a
foolish message, and tlieretbre desired to know
what they would have him to acquaint kins^
James with, and assure him of. They au
agreed to meet the king whenever they had
notice of his landing, with a body of 2,000
horse; of which every one in particular was to
bring their quota wherever he would appomt.
Att. Gen. When was the second meeting?
Porter. That was at Mrs. Mountjoy's.
Att. Gen. But I ask you when it was ? How
long after the first ?
Porter. I believe it was about a fortnight
after, or so.
Att. Gen. What was that meeting for ?
Porter. The second meeting was to confirm
the first Captain Charnock informed me,
that he was to go within three or four days,
and therefore desired to have a meeting before
he went.
Att. Gen, What discourse was there at that
second meeting P What occasion was there
for it ?
Porter. Capt. Charnock desired the meet-
ing once more before he went, to see whether
we all kept our resolution.
Sol. Gen. Pray, what do you know of air
John Freind's agreeing to raise a regiment of
horse?
Porter. I know nothing of that matter, bat
what I have heard several people talk ; but I
have heard him say, he. would be as ready as
auy msn, whenever the king came ; and I have
heard from capt. Chamocki aad fic^ia tir Wil«
C
19]
8 WILLIAM UL
Ham Perkyni, that he had a commissioti to be
a colonel of horse.
Att. Gen, Pray, Sir, upon that second
meeting, who were present ?
Porter, 1 told you, Sir, the priioner at the
har was present at both meetings.
SoL Gen. Who else were there ?
Porter, My lord of Atlesbury« sir William
Perkyns, capt. Chamock, and I cannot tell
whetner my lord Montgomery and Mr. Good-
man were there ; Mr. Cook and myself were
there ; but the prisoner at the bar I am sure
was there.
Sol. Gen. Pray, capt. Porter, will you re-
member and recollect yourself, who were at the
iSrst meeting P
Porter, fhafe named them already, Sir.
SoL Gen. Name them again then.
Porter, My k>rd of Ailesbury, my lord
Montgomery, sir John Freind, sir William
Perkyns, sir John Fenwick, capt. Chamock,
Mr. Cook, and myself ; we dined there, and
after dinner Mr. Goodman came in.
Att, Gen. Pray, Sir, when ^d you see Mr.
Chamock afler tnis, and what discourse had
you with him about his journey, and the suc-
cess of it?
Porter. I never saw him till 3 or 4 days
after our riot business in Drury-Iane, upon
the account of which I hail been a prisoner in
Newgate. ^
/ Att. Gen. Well, and what did he say to
you?
Porter. He told me that he bad been in
France, but that king James told him, the
French king could not spare so many men that
J ear ; and withal, that he bad been with sir
ohn Freind, and the sereral other persons,
with messages from the king ; but 1 do not
know whether he had been there or no, only
as he told me, that he had been, and brought
that answer.
Att. Gen. Pray now tell us, what other
meetings you have had about this matter thb
winter?
Porter. I was once with sir George Barcley
and sir John Freind, at the Nag's- bead in St.
James's-street; 1 cannot tell what discourse
they had ; they whispered among themselves.
Att. Gen. Who else was there r
Porter. There was sir George Barcley, sir
William Perkyns, myself, Mr. Terguson, and
•ne Humes.
L. C. J. Where was that, do you say ?
Porter. At the Nag's -head in St. James's-
street
Att. Gen. Was there any body else there
that you can remember ?
. Porter, Capt. Chamock came in after dinner,
but I cannot say he dined there.
Att. Gen. And who else do you remember ?
^ Porter. There came in one Harrison after
dinner; he is a reputed Romish priest, and goes
by the name of Johnson.
Mr. Mountague. Pray, capt Porter, what
was that meetingfbr ^
.JPsHir. Tliey bad ftrcnl wl
Trial of Sir John Freind^
among themsdf^, but what they dis<
1 cannot tell.
Mr. Mountague, Pray, did sir Jol
say any thin^ that you heard at that
Porter. Sir George Barcley did
some people that were not so violent hi
over mto France to stop this busine
which, said 1, 1 hope you will have
to-night Upon which sir John Fr(
is there any thing that is hul behind
tain ? If there be, I am not fairiy dea
I will proceed no further.
Att. Gen. If ur John Freind has
ask him any questions, he may.
L. C, J, Pray* cant Porter, let mc
this question. Did all that were ores
first meeting, at the King's-bead in
hall-street, agree to send Mr. Char
France to the late king ?
Porter. Yes, my lord.
L.C.J. All of them?
Porter. Yes ; we desiied captain <
to answer to the king for us that we w*
him at the head of S,000 horse.
L. C, J. Did sir John Freind agrc
Porter. Yes, I do positively affirm
L. C. J. Then the second meetinf
you say, was at Mrs. Mountjoy's, i
said then ?
Porter. We did agree all, That ca
nock should go on with the message
resolved upon at the first meeting,
would go on with the business ; and I
would go away in two or three days.
Att. Gen. Will sir John Freind as!
questions ?
Freind. I will only ask him, if
done, whetlier he has any thing mon
Porter. No, Sir.
L. C. J. The king's counsel have
him.
Freind. Then, m v lord, I will hea
can say, and when I have heard thei
denoe, I shall know how to answer t>
L. C J. Before you go, captain
would ask vou, what answer Mr.
brought bacK from France ?
Porter. I say, I did not meet wi
Chamock, until after I came out of
for the riot business ; and then he to
had been there, and he had acqui
several gentlemen with the messagi
brought from king James, who tba]\
for Uieir kindnesses; but the Fre
could not spare so many men that ye
Sol. Gen. Then the next that ^
Brice Blair (Who was sworn.) Pn
you know the prisoner at the bar,
Freind?
Capt. Blair. Yes, my lord ; and
sorry to come on such an account as
against him. I am sorry fir it wi
Att. Gen. Well, Sir,prav wUl yc
aooount what yon know or sir Job
having a oommiMon firom the late
a colMid of hmei ui wkai it was,
ft^ High Treason*
I nj ktnl and the jury ihe whole
All ikai f C90 my to this business in
I ttj Pt]itr, and 1 refer to my puper.
(tfti Y#ii naufit not refer to your paper,
tcjl mil what you know.
% R»iii«jr took upOD any paper to
1 4k^ tte ihe commissiouy Sir, and I
L
Its* WbaS cofnmtflsioii was it, Sir?
ii inM R eommiMni from kiDir James
id.
Where did you see it. Sir ?
m ii m M» lodgings at the Strand,
firad otiff the Straud, io Surrey*
trm. Who shewed it voa f
Ha ahewed it me himself.
Int. What was it flir ?
^J^ waa fbr raising a regiment of
^HWbeo was it that you did see it ?
^■|i»wia itf
^yii wiell near two years ago, or
^ as 1 remember
>■« Who was to have beea colonel of
Mfltr
Ha was oominaled to be colonel of it
I liie eooimisKion.
X Who was the commissioo di*
directed to him, to sir John
PI Wdlf aiid wliat was doue upon it P
vtobelhaoflicera?
Ba |irOflataed me lo he his lieutenant -
mA I had tlie same from Mr. Bar^
aereral letters that I saw,
ly lord Melford and secretary
fiTth king Jamea«
What other officera were there
Tb»e vaa one Richardson wns to be
I CBfiaiaOv and ihei-e was one Mr.
■a Io iia aoatheri and one Hall ano-
jkm waa ta be bis eldt^t captain, and
UEfaaa waa to be his captain-lieu-
Veruatti was to be
fat. Da you reroemher who waa to be
'f
Ha^ Sir, 1 think I cannot he positive
rt» f ap^ke tocapt Baroesley, that
ant tD king Jamea's service,
aiul sometimes he accepted,
ha refuaed it.
ht^ Play, what did you do as lieu-
taaal upon this matter ?
I cadaavoisr«Mi all I could to get offi-
htokf and to raise troops, Fendea*
I fil vital inen 1 couhl myself,
toi. Piay what did you do ? What
U jwa fwwcura for him P
I tan you Vematti and Fiaber* and
JhM thai tiTCB at Deal.
ia. WImI tiaa|Ni did you get under
you?
you ?
Blair, What? I myself, Sir, do you meant
Att. Gen. Yei, I do.
Bkir, Yes, Sir, I did.
Ati. Oen, Can y<iu name any of them ?
Blair. Yes, Sir, if I make u^ of my paper.
Sol, Gfn, You may makeuseof your paper
to refresh your memory-
Bhtr, There is a paper of names that I gave
in before the council.
L. C. X Mr. Baker, have you his paper
there P Let him see it to refresh' his memory,
Mr, Bakfr, I have none of the papers, my
lord ; they are all sent before the council.
Att» Gen, Pray, Sir, can you ttll w ho was
to have been your Ueutenant iu your titiop ?
Blair. One Mr. Bert ham.
Mr Mountague. You say, Sir, you were
constituted lientenanl ct>loi»cl ; pray, who con-
stituted you, and made you so ?
Blair. I had only a promise of it from sir
John Freind, .
Ait. Gen. Pray, did you lay out any monies
for sir John Freind ? or did he ever pay you
any money afterwards ?
Blair, Yes, 1 have had several small sums
of money from sir John Freind.
Att. Gen, Pray, what was it for P
Blair, It was to drink with the men that
belonged to the regiment, and eiiconnige
them.
Ati, Gen, Pray, did Mr. Ptggott pay you
any sums of money ? and by whose order ?
nlair. Yes, he paid me first 20/. and af\er«
wards he paid me another 20/»
Ait. Gen. By whose order was that, !^iir ?
Blair. It was by the order of sir John
Freind.
Att. Gen* Pray, Sir, How do you know
that sir John Freind ordered him to pav it youf ]
Blair. Because it was the money lliat 'Pig»i
gott had received to repay sir John Freind
what he had advanced for Ihe furthering of
Parker ^s escape out of tlie Tower.
Att, Gen. How do you know that he ad-
vanced any money tor procuring Parker'a_
escape?
Blair, He told me so himself.
Att, Gen. How mucli did sir John FreinAf
say he advanced for that pur{>o5e ?
Blair. Retold me 100/.
Ait. Gen. How did he tell you he was to ba^
paid it again ?
Blair, He told me that king James ordered
thepaj'ment of it at France, when Pig^ott went
over, wh?ch was immediately afterwards ; and
I had of that, first ^0/. and afterwards UOL by
theorderofsir John Freind.
Sal. Gen. Pray, 8ir, did sir John Frejod tell
you what Piggott had received in France?
Bluir, Yes, he said Piggott had i-eoeived
100/. in France ; and be *lid not pay it him,
but if 1 could get ZQl. of hia>, he if^uld ,
allow it.
Jit. Gen. Pray about what litne was it that '
the tint 20/. was racaivad?
M]
8 WILLIAM HL
Blair, J have set it down In my paper ;
there it is.
Ati. Gen, But canoot yon tell about what
time it was P
Blair, It was about last May or Junei the
first 80/. was paid.
Alt. Gen. When was the last SO/, paid ?
Blair, It was after 1 was sick, about Mi-
chaelmas.
Mr. Camper. Pray, Sir, Who was by when
the last 20/. was paid P
Blair, Mr. Piggott paid me the last 5/. of it,
(for I received it at several payments from Mr.
Pig^tt) but the hist 5/. was before sir John
Fremd, at Jonathan's coffee-house.
Sol, Gen. Pray, do you know any thing of
air John Freind's receiving any l^ter from
kiu^ James?
Sluir, Yes ; he told me he had a letter from
king James.
Sol. Gen, How long ago was that?
Blair, Truly, I cannot tell.
Sol. Gen. 1 don't ask you the precise day,
but was it within a twelvemonth P
Blair, Yes, I bdteve it might be there-
abouts.
Freind. My lord, I desire he may speak
out ; for I dou't hear half he says.
L, C. J, Repeat it to him again.
Blair. Sir, you told me you had received a
letter from king James.
Friend. My lord, I shall answer to all this
afterwards.
Sol, Gen, Pray, had you at any time any
discourse with sir John Freind about one Slater P
Blair. Yes, 1 had.
Sol, Gen. Prav tell what that was.
Blair. He told me he was to bring him in
several officers ; and that he had intended to
make two lieutenant-colonels, whereof captain
Slater was to be one ; but when he saw I was
not satistied with that, he said he should com-
mand a troop of non-swearing parsons, and
tbev should M an independent troop.
Sol. Gen. You say that Slater was to com-
mand that troop P
Blair. Yes, and it was to be an indq>endent
trooj>.
Att. Gen, I think you say, that he and you
met at Jonathan's coffee-house P
Blair. Yes, we did so.
Att. Gen. Pray what discourse had you
there P
Blair, I called him aside, and desired to
speak to him ; and it was when Mr. Fisher
told mc of tliiii plot, and desired me to speak to
him, a little betbre this horrible conspiracy
broke out. And 1 told liim what I heard from
Fisher, and from Harrison the priest about it ;
and he told me that he had heard of it, and he
was nfraid it would ruin king James, and his
affiiirs. .^
Alt. Gen. What was it that you told him
you had heard P
Blair. This last horrid thing, the conspiracy
against the king's life.
Mr. Camper. Was it before it bidw out that
lie told you he knew of It f ^
Trial qfSir Join Frnnd^
Blair. Yes, it was shortly before it br<
Alt. Gen. Pray, did you meet wi
again P And did be carry you in his c
at any time? — Blair. Yes, he did. Sir,
Att. Gen. What discourse had yo
when you was with him in the coach P
JB^ir. He took me in his coach to S
tin 's-le- Grand, and, says he, I will do
till the Toulon fleet meet with the Brei
at that time, perhaps, we shall be all tal
but, says he, you may sculk about tl
better than I can ; and therefore I'll kc
self private ; and we must be as good h
of our money as we can ; for money
very scarce. What do you think y(
need, says he P Truly, Sir, says I, I ca
that must be according as 1 am mountc
I found I had a few indigent officers at tl
Att. Gen. Pray, what were you tu <
Blair. Vte were to sculk up and dov
when he asked me what money I shou
I told hirii I could not tell ; for there i
veral indigent officers, most of which
at that time ; and here is a letter thi
from sir John Freind, to confirm my n
money from him.
Att. Gen. Is that sir John Frein
hand P — Blair. Yes, Sir, it is.
Att, Gen. Then put it in. Give it
[It was delivered in to the Attorney -G
Sol. Gen. Pray, what have you li
John Freind say of sir John Fenwick
concerned in this matter P
Blair. I heard him say, that he
that he should command the party thai
engaged in, and that sir John Fenw
four troops of horse, that lay near Rea
be employed.
Sol. Gen. For what purpose P
hlair. To be in readiness upon the i
Freind. Gentlemen of the jury , 1 C8
a word ; 1 hope you hear.
Att. Gen. Pruy, Sir, look upon tha
\ou say you had that letter ftrom f
treind, pray, who is that H mentioned
Blair. It means Harrison alias J
the priest.
Att. Gen. Pray, what was that lettei
for?
Blair. It was about the Ust SO/, thi
to receive from Piggott.
Att. Gen. Is that sir John Freiud's
Blair. Yes, I think so.
Att. Gen. Have you seen sir Johi
write P
Blair. Yes, 1 have seen him writ
think it is the same hand.
Att. Gen, Then we desire it may be
Then a Juryman desired he might b
Wh^er he saw sir John Freind w
letter P
X. C.J. What say yoa,did you
write that k*tter P
Blair. No, my lord ; it came to my
Ait. dtn. Did he ever own to yoi
writ yoa each a letter P—£4nr. Yei»
Jhir High TreoMn.
m. Pnjy let it be read ; read it all,
1 short.
Ir. reads:
?w Captaio Blair, These.
; Tuesday Morning,
may inoch wooder you have not re-
ins wer of* vours before now : I ba?e
led with the gout in my hand and
1 have not been able to pnt pen to
thank God) I am somewhat better,
pe to be in London a Thursday next,
boor <^ twelve, at Jonathan's cofTee-
he weather do not prevent me ; if it
i not come before Monday following :
* you fur to meet me about that hour;
It convenient for to write a note to
r some reasons 1 shall give you when
I wish yon good health. I am,
affectionate friend and servant, .
" John Freind."
a. Prmy, Sir, what dale is it of?
Ar, It lias no date but Tuesday
m. Did sir John Freind meet you on
day, according to this letter ?
M. My lord, I desire he may be ask-
thts letter came to him, whether by
post, or how ?
1 doD't know, I believe it was by a
came first to me when I was in lied,
ife broaght it up to me.
511. Prmjt Sir, answ^ my question.
obn Freind afterwards meet vou at
s coffee-house, according Jo this let-
lir. Yes, Sir, he did.
rem. And did you there speak about
OB that's contained in that letter?
Yes, Sir ; and accordingly I had the
ea. What order?
Ao order for the SO/.
!«. Captain Blair, do you remember
dined with sir John Freind near the
e, in January last ?
Yes, I think 1 did, Sir.
r». What discourse was there between
^ Who was with you besides you two?
1 must refer that to my paper.
fi. Well then, what discourse was
f on and sir John Freind there ?
It is down in my paper.
m. Do you know one capt. Ridley ?
ra. Was he at any time present when
the prisoner at the bar were together ?
f. My lord, I cannot hear a word he
/. Here is a great noise indeed, and
ms, is not well, and speaks but low ;
Icr silence in the court. [Which was
Proclamation.]
L Look ye, air John Freind, he speaks
r that you sent to him that bears date
CMtey momtng, that you would be in
d seel him at Jonathan's eoffee-bou^
«nda/ foUowiDgi at twelve o'clock;
A. D. 169S. f S6
and that letter was read, and he says he met
you accordingly, and there was order taken for
the payment of the last 20/. This is that ha
says : did you hear it ?
Freind. No, my lord, I did not.
JLC.J. That is what he said. Then go
on : you say he met you at Jonathan's ooffee'
house according to that letter ?
Blair. Yes, my lord.
L. C. J. What was done there, when yoa
met ? — Blair. Nothing but the order.
L. C. J. Who did he give the order to?
Blair. He gave the order to Harrison.
X. C. J. Why, was Harrison there ?
Blair. Yes, he came there before I came
away.
L. C. J. But you say he gave the order to
Harrison f-^Blatr. Yes, my lord.
L. C. J. What was the order for?
Blair. It was to pay me that money.
L. C. J. What money was that ?
Blair. It was the last 20/.
Alt. Gen. Was the 20/. paid you after-
wards f-^Blair. Yes, Sir.
Att.Gen. Who paid it?
Blair. Mr. Piggolt ; he paid me the last 5/.
of it before sir Jonn Freind's fiice.
L. C. J. Was this the first 20/. or the last,
do you say ? — Blair. It was the last.
JL. C. J. What was this money paid for?
Blair. I believe it was to support me to go
about the business of the regiment.
L. C. J. You believe ; that's not enough :
but are you sure it was so ?
Blair. Yes, I am sure it was for that.
L. C. J. Had you ever demanded money of
him before? — Blair. Yes, I had.
L. C. J. For what was that money that you
demanded ? >
Blair. It was to drink with the men that
were brought in ; to cherish, and keep then
together.
- L. C. J. To what purpose were those men
kept together ?
Blair. They were for his regiment.
Sol.' Gen. Pray, had sir John|Freind any oc-
casion to pay you any money upon any other
accoufnt?
Blair. No, Sir, not out of that 100/.
Mr. Cowper. You d(» not understand the
question. Had you any dealings with sir John
Freind, but al>oui this matter concerning the
regiment?— B/air. No, never in all my life.
Att. Gen. Well, sir, do you remember your
meeting with sir John Fremd when one llid-
ley was there ?
Blair. Yes, it was at the chop-hou^.
Att. Gen. Give an account what passed
there.
Blair. Mr. Uidley said, a^ gentleman waa
lately gone over to France, about ten days be-
fore ; and Mr. Ridley said, he was a very sen-
sible gentleman, a Roman Catholic, an ancient
man, about threescore years of age, what he
was, I can't tell : he said, he believed he should
bring the last orders.
Att.Gen. What did sir Joho Freind say f
m
8 WILLIAM m.
Blair, Sir Jobti Freind said, He ktiew nf
it ; but he named do more,
SoL Gen, Wliat was the effect of those or*
ders, as yan uQtlerfitood f
Blair, 1 cAunoi tell that. Sir, indeed.
SoL Gtn. Did you know Mr. Cbiirnock ?
Blair, Yes, t did,
SoL Gen. What do you know af hii going
to France ?
Blair. I met Slim iipou the Exchange the
last summer^ and I told hvm, 1 ex]>t:*€tcit not to
have ieen htm here at Ihat time, 1 thought he
liad been abroad ; he told me be was come
from France \ but who &ent him I camiot tell,
I do not know, u^n my life.
LSoL Gen. Pray what has sir John Freind
said to yoa about Fergusou? Whether was
not he to hare been an otBcer in his t^gimeiit .''
Blmr, No; but sir John Freind said, he
wonid jiiin; and Mr Ferguson himself has
told me so.
Ati. Gen, When did he ttU you so ?
Blair, A gOiwl while ago.
. Alt, Gen^ How long ago ?
I
Blair, Two years ago, and ahoye.
Sot, Gen. Did i>ir John Freind tell you any
thing about Ferguson, that tie would bring in
any men?
Blair. Yes, he said he would bring in a great
many.
Att, Gen, Will the priioner ask him any
i^uestions ?
L. C. J. Sir John Freind, wiU you ask this
witness any 4|uealions ?
Freind, Yes, m_y lord, I shall by and bye,
if Ihey have done with him,
L, C. J, Yes, they have done with him.
(Then he {^i a used, and [lerused his Papers.)
Freind, Fust, a?* to the commission yon
charge me witti, that I should receive a com-
mission from kiug James ; 1 desire to know,
whetlier it was signed, or sealed, and %vhat dale
ilwtsf
Blair. I cannot tell the datei indeed, sir
John ; for I neirer thought to come here upon
gueii an account as this ; but 1 think it was in
paper, signed above * James Rex,' and below,
* By his Slajesty^s Command, Melford ^^ and a
littfe seal upou the margin.
Freind. This is the hardest thmg b the
world upon a man ; here you have ctiarged
ine with money to subsist and encourage sol-
diers,—B/ajr. Yes, Sir.
Freind. I would only say thii : you were
recommended to me for a very honest man,
and you bare come to me several times, and
told me, Sir, my necessities are very great, I
am ready to starve, 1 have a gr^^t charge ; ihr
God^a sake, will you be pleased to hestow
something upon me, to relieve my necessities ?
It's true, I have given you money several
limes, but I never gave it for any other use
but charity \ God knows my heart. 1 dcMre
you to consider with yourself, and aoswer it.
There is a God above, where you must ^ive an
«ccouDt fts well aa I, and i hope you wdl con-
are
Trial of Sir Jahn Freind,
sider of it. Pray declare the trutli, V
you have not writ those lines to roe
times, that you were ready to starve,
ged of me to relieve your nec<^ftities?
Blair. I bare so, Sir, I acknowledge
Freind, Pray take me right, and
that money 1 g^ave you, only upon pure
Blair, Yes, you did give me charity, b
had expended m) much nvmey in your b
ne^, that reduced me to that, God korms
heart. I have laid out many a pound upon
affair.
Freind, It is the hardest thing in the
lb in is a floman Catholic too.
Blair, I am sure it cost me many a
more than ever I had of you,
Freind. You say you listed a great
nieo, who were ihe men.? What
ttames i* Who were they for ?
Bhir, I have given a list of them to
council.
Fraud, Who are they? for God knows,
know nothing of them.
L, C. X You have a list Uicre, let it be |
duced.
Blair. I gave it to the council ; :uid,
John, I brought in several otHcers to you.
Att, Gen. Remember, and name asm
as you can.
Blair. I have named the oS^fjers alreadj^
Ati* Gen . Na me th em again .
Blair, Did not 1 bring captain Fisher
you ? and did not yon promise to make hi
your eldest captain r
Freind. No, you never did.
L. C. J. These are questions of pur o^
asking, so you must hear him.
Bltur, I brought captain Fisher to ymx, i
accordingly we dined at captain Simons*s ; i
tliere was captain Ridley^ Mr. Richardson,!
Mr, Fisher and you talked together, and
listened to him, and in my own hearing yi
promised he should be eldest captain, u,
condition that he would bring in a troop ; i
til is is true, so help me God.
Freind^ K^rayi where are your men? \
what are your men that you listed ?
Blair, 1 never spoke of listing, 1 only spo|
of encouraging.
Freind, Did not you say you bad listed
great many men for to he of my regiment f
Blair. No, 8ir, I did not.
All. Gen. I think you do mistake, sir Jobi
he did not aay list.
Blair^ I had money from you upon the a
count of encourag^g, and treating, and drini
Lng with a great many of the men : and y
said it tvas im possible to keep them togethc
but that I must have money to treat them,
drink with them ; hut you desired me to be i
good a huslvand as I could.
Fr€i7id. I never said so ^ these are very hai
tilings upon me.
Blair. Did not I bring captain Cole as
captain Ncale to you, and his brother* in la'
Mr. Robinson, aiKl Mr* Gellibrand ? and dj
not we dine together?
High Treainn,
I loMff Dvllimg of atl l!us» 1 ileclare
mm-
L C /. If joo woit)<) ask bim any mortt
AUr. I Imitiglit tlii99e tliree gentlemfni anil
I. ' 'fut diii you dine llien ?
^ . ; Ucktiey, uljeu sir Jobn lived
k«i^« W 0^11 fiiMise.
l^mi, WHm was it ?
Ibp. I a year iiffo. Pray, sir
kli^ 4m I II dteli roe out of coiinte-
nK;J^tvgh 1 am vrry ill ; 1 fi^iuk notUiti^
[iHlliplnitJi, Mill Ihtrdurt* t viilt not bt^ ihixltt^d
III CBUBleiMfvrr. Yuit kuow tt hat I »iay tn
r; ywn ib^n dmtik a ip^tass of i^ine to
» C«l9: Mtd cSifl not you promisi! him,
elc ii«8 ofi«» af your mothers name,
|taW«b<«lil h^**^' * T'''«*'e in Uie Excise next
itf flic oociii .;' ^i.iys I, sir John,
kitvil yim j;« - ,. <i, suys be, you shsUl
biKlWr^pukenL, tnon. Tliifi was belore Hi>-
|jMi>b« vMMher-LU-htw, and Mr. Ck'llibrand.
[C J, Who wA^ to have the place m the
?^Bh»r. Captain *Jole»
I koow not o won! uf all thiit.
, ftoAr^lny. Cuptain Btair, be not itash^d,
'fctlie titsth« and yt)vi need fear nothing.
TImil, I ^Vt was before Air. Robin-
I Mr- G^^nibrand.
1 donU know Gellibrand, nor none
L C A Was that Cole ta be aor thiiii^ in
Bl^. Y<«T be wai to hate been a captain,
■italria^ba tmop.
iit,Oi^ Hir Jolin, will yoti ask him any
Sa^ I miint de|iend ui>on the jnry,
K rvmcmher hall' what he has said .
tCt^ Do vfiu remember any discouHNe
^9^9»fim aa«l him^ about ^ome brisk uieu
ivamaMf^ltow him?
^ C/ Ent before yoy ask him, Mr. 8oli-
•« uuiM knowr whither he will ask him
k ^ •■nr 4|iiff^»oiif!, fur lie is nov/ his nititess.
1 fc t»a idk bifii any more f|uc*lioriN, sir John ?
I can aak al»out no more thun whtU
A. D. 1696.
[30
L<LJ^ B«t aak him what you will
fmmL Hy kinl, I have nul heard halt'whul
W Ut Mid, 1 Im^ llie jury will take care in it,
^ C i. Some part of it h as twice repeated
^K-
Aa III lUal, tnv lord, 1 vvould ask
tAtm or two. \Va« that my letter ?
Y«, it wag.
M «e« me write it ?
I if to my hands by a porter,
[•1^ • I waa in bed; my wife
, 11 liAt waa llial l«tter for ?
to lifda' In pay tlie last UOl. and I
a raimii nl* a lisHer Ihat you writ to
vwl y^ that letter to
Blnir, He sihewed it me himself,
h. C. J, ilow jonff affo is that ?
li^flrr. A yejif und a halt ajjo, as near as I
can remember,
L, C. J, Did be say any things of an answer
he liad to it ?
Bimr. Yes; hot I cannot remember what it
was directly,
Jttrytnan. ITe %vas pleased to say, he saw a
letter from king' Jumet;*
L. C. J. Woj no, yir, it was a letter to kin^
James.
Jitryjnun. My lord, I desire ho may ba
askeil, if he kirnus the contents of thiit letter f
L. C. J* Did you see htm write the lettiTi
or did he shew you the letter he hnd writ ?
IMitir, I did not see him write the letter, I
seeliin hand to the letter, and he shewed me
the letter, that he said he had written to king
Jamcfl ; and tli^re is this parti cu hi r passage to
confirm it, it was at Mr. Piggoit*« mother^
liouse; I dined with him there that day, and
when he shiaied me the letter, f told him I
was BO well fdeased with tlie perming it, that 1
believed Mr. Fcrgusou had a hand in it; and
be was ^ary angry, that 1 should think he was
no I able to write,* and did not write the letter
himself.
Jnfynmn. My lord, since it seems he perused
the letter, I d^ire he may be asked, whether
he can remember the contents of that letter^ or
ajny of it?
Biair. Really, my lord, 1 cannot tell that
particularly: but I am a]>t to think it was
about the husiuess of the king, and about the
regiment.
L* C. /, Can you teU truly any of the con-
tents of it.'
Biair. That it was about the aiFairs of tha
regiment, I am piKHitiv^.
IHr. Cowper, My lonl, before he goes away
(that the jury may nut go iiway with a mis*
take), I desire it may he observed^ he does not
say* h« saw sir John Freind write the letter.
*/.. C. J. No, no, but that he shewed it bim
himself
Frcind, When was that letter writ that I
lihewed lo you ^f
Blatr. It \vn& akiut a year and a half ago.
Frdnd, 1 declare in tlie presence of God, L
never writ one.
Jtfrymftn, He says you shewed him the let-
ter» therefore it is very fit we should see it.
L. C. J. Nay, Sir, you must not talk to tha
pri^ioner; if you have any questions to ask»
you must propose them to\he court.
Freind. I declare in the presence of God, I
never writ any such letter as this he now
charges me with.
Biair, And I do declare in the presence of
God, you shewed me such a letter.
Frcind. Yes, you may ; but i am a Pro-
testant, you ^re a Papibt ; you may do any
thing*.
Ait, Gen* \ci\ may ask any questions of
bim, sir John, but you mutt not raii st the
witness.
31]
8 WILLIAM in.
Trial ^ Sir John Freind,
P
Freind, But when yoa chargfe me with the
writing of a letter to king James, 1 ought to
speak to it. It seems, J am out to ask whether
he is a Papist.
Att, Gen. He says, yon shewed him a let-
ter, that you said you had written to kiug
James, which lie read, and hked the penning
of it 80 well, thut he thought Ferguson had a
hand in it ; at which you were onended, that
be should think you could not write such a let-
ter vourself.
freind, I declare in the presence of God,
I never writ any such letter.
Att. Gen. 1 sup|M)se you'll disprove him by
and hye.
Freind. I can have no witnesses to this
matter.
Att. Gen. And you can't expect your own
denial should go lor proof. If you will ask
him no more questions, let him go down and
ease himself.
Freind. He must not be asked whether he
is a Papist ; but I hope you will take notice,
countrymen, that these witnesses are Papists,
and they think they merit Heaven by swearing
■gainst Protestants, whom they call Heretics.
L. C. J. Indeed, sir John, 1 don't bear you :
pray speak so loud that the court may hear
what you say.
Freind, I will, my lord ; I say he|is a Ro-
man Catholic, and I have witnesses to swear
be is 80 ; and desire I may prove that he is a
Roman Catholic, and therefore be is not to be
beard against a l^x>testant.
AU. Gen. Then the next witness we call is
Mr. Bertbam. [Who was sworn.]
Freind. But I have not done with Mr.
Porter.
L. C. J. Well, you shall have him by and
bve ; let the king's counsel go on in their me-
thod.
Att. Gen. Pray, Mr. Bertbam, do you know
captain Blair that was here just now ?
Bertham. Yes.
Alt. Gen. How long have you known him ?
Arthain. About eight or nine years.
Att. Gen. What discourse have you had
with him about any regiment that was to be
raised for the late king James?
Bertham. Captain Blair had (old me for two
years last pa^t, that sir John Freind was to have
a regiment of horse, thai were to be raised, anti
lie posted about the town ; and captain Blair
was to be lieutenant-colonel to the re(i^iment,
and I was to be lieutenant to captain Blair in
bis troop.
Att. Gen. My lord, we only call him to con-
firm what captain Blair has said, that he was
to be his lieutrnaiit, and that this was talked of
two years before. DitI he toll you sir John
Freind was to have a re^jriment of horse?
Bertham. Yes, SSir, und he obliged me to
bring in as ninny men and horses as 1 could
into this regimeiit, and he tohl me capt. Fisher,
captain Vertiatti, and captain Cole were to be
ctptftins in the revriipent
It. C.J* And what were you to be?
Bertham. A lieutenant.
L. tj. J. To whoiii?.
Bertham. To captain Blair ; he has told B
so several times, and talked to me about lb
alfairs of the retfiment a great deal, that I cm
nut now remember, relating to that purpoae.
L. C. J. This is no evidence against sir Johi
Freind : he is only called to confirm the tMli
mony of captain ll^lair; that Blair spoke if i
long before he gave his evidence, and iokl
not a new thing now invented by him.
Sol. Gen. Sir John Freind did ask what m
he had engaged, and among others, he ntMi
this Mr. Bertham to be his own lieutenant, m
he now tells you Blair promised him 80 to I
two years ago, and tnen told him air J«h
Freind \vas to have a regiment
Freind. Do yoa know me, Sir ?
Bertham. No, l%r» I never was in yii
company in my life; f only .tell you wImI
have heard fnim caput in Blair ; I do not hm
that ever I saw your face.
L. C. J. His evidence, sir John Fraki
hurts you not, as to any particular thing III
he knows against you ; he is only brought 1
confirm what captain Blair said, that be wial
be his lieutenant in his troop.
Att. Gen. Then, my lord, we leave it hflm
L. C. J. Look ye, sir John Freind, the kMV
counsel have done, and now you mmy tp«i
and say what you have a mmd to say in jm
own defence.
Just. Rokeby. And call what witnetMt j«
have a mind to call.
Freind, My lord, in the first place, 1 4mm
to know whether Mr. Courtney is come.
L. C. J. Your solicitor can best tell thili.
Freind. I perceive he is not come.
X. C. J. Well, go on : I suppose be will «
be long before he comes, we wUl stay for bin
Freind. My lord, 1 must wait for my wi
ness : but in the mean time, as to Mr. Pomr
evidence, I own I was at the meeting «t tl
King's-Head in Leadenhall-street ; I dedn
1 was at that place, and there were some gm
tlemen there, out how many or whom I cum
say; but 1 declare there was not one w«
spoken there of any raising of men, nor ll
thing of that nature, that he speaks of, h
only we were drinking a glass of wine, M
eating a dish of meai together, and sir Jol
Fen wick at that time coming in, said to os,
desire you to come to our end of the town, M
take a dish of meat with us. And there w"
nothing spoke of any thing relating to the f
vernment. Gentlemen, these are Papists, tJ
I am a Protestant, they don't care what tin
say, for they think they merit Heaven by M
fitroying Protestants ; and they are not to
believed : and that is the reason that I was B
to ask them the question, liur by law tbey ■
not witnesses, and for that 1 appeal to jm
lordship.
L. C. J. Hoit^ Why are ihey not witnesM
Freind. Nay, 1 appeal to your lordship. »
L. C. J. Bolt. Truly I think they ara III
nesses, i know nothing to the oontrvy.
frfmtt Mt lord, Paf i^l» art- not :;ood wit-
pas ic^tiutl Frni.>i.nit< foi' tUi^ reason tU'it
1 Ml idt jmi ; ly tord, tbat a
"* , i% i> t a u) jirove a Pro-
^ 5t> ?
Mj Uiril, J ilt^ire to know wbetUer
cb « suiiiir ?
HW/. V«- no doubt *>f it, there is
t &» aiaiof liic 25 ofEfL 3, about
Prmjr, my lord, does nul tbat make
fed. IZilf. N(N ioilccd, I know no fucb
si <j». Thnt cannot be, my lord, ihat any
mki^mif ^oiiUI Im?» for alt were Papists tlien*
m no »ucli a tbio^f si a Protestatit in
pi^E*!. S.
My l**ni, tbere k tl»e statute of the
li-s ibe t«t. cat?. 4tb, autl other sta*
in llie time ni kinor riiarles the
ibHy »n th«' 3ui!i yi'jir nfiiis reiyn,
V it is |»biu they ure tiot to be
ii««tnrtt«, ♦t^cnico they bdieve
; anil by liiose
tftttite-book, I
irijiiiir.j I iM, tui*( advUe was
r bf my Sawyer ; Jam an lawyer my*
... .iti.i.. -J ^ ' Mue« J, cap» 4,
u .
tjuak shall be
5Tv t*«rt1. the person is not rome.
I- Sjfaiubt cai'tum l^lair;
l>e h a prisuucr at the
^<ai|j was pleaded to
. c nil Uecatnc.
, \4^, yes, ^«^ ttill ^tay a while*
El ^tr»y^ my Ion!, <lo, foe it will he
^, ' ' ' I'fur.
1- I Ittfe yon any thing: to till
i ' neao Ume? |,Tbeu
la ytnti au..^.iur returned ^illi this
1^ 1 Wicf ^"- «- •" *^»»* ^l"iT«r tKf r-ouft,
IfM s to
« you would haF«?
> 1 y lo bin) ?
. . uifu Mi^ i|uev*
Yf«, yon mtisi propoiw' yoiir (|ur«-
-"irt, and they witl aak them ot*
Ir lUts be the |ier»on you apeak
WIMM ' - ' 'Mm.
Mi, ' I deaire you would
ijitiiio Ulair,
I liHve I wen a pri-
.u. ;^„i,.M >»-^ .iiiout a uioiiih, and
na lW« r#|itJiiu Blair at the same
ia M a iifriflDOSTt as tnentioned in tlie
m; kdjg ray cild ac^uaiiitaoct, (t
was in bed, b<?iug: in upon soiue other accounts)
and IV hen they tuld mti Ciiptjiin Blair was
brought ill, I d^'sivetl him to come into my
eh u] fiber, I told him 1 wixa sorry lo see liim
tl>ere ; I told him i Imped hc! was node ol'thoi^e
coneeru<.'d in this phii ; Ite f^aid ha y^aa In the
Proclamation, but that he was itmocent, and
knew uothiug of the |ili3t, nor of the assaiisi-
natioU) nur any thing like it; there were se-
veral other persons m thut place at the same
time« and he said he was as innocent as the
chilli uoboro,
Freind, Did he menlloQ any thing of me
then ?
Courineif* i^t that time he said nothing of
yon.
Frdnd, Pray, Sir, do you believe he is a
Roman Catholic f
C\>urinc\/. \ do not know his religion indeed.
Frcind. But doo^t you know him to be a
Uoitian Catholic ?
Courlmy. lie bore the character of otte,
but I nevcj saw him at any church,
Ju:it. Rokcby, Pray, Sir", how bag liave you
known captain Blair ?
Cifurinty. By sij^hl, I bare known him six
or sevtfn years.
Just, lioki'bjf' Ptayt upon what accoout did
youctill hint euplaiu ?
Cou} tnrt/, l\ vvaH a common name among all
the cc?mj>aiiv : he was called so.
Ji* C J* Wha(, all the liuic you knew himf
CouTtrm/, \Vh, all lifetime that I knew hini»
1 knt 1% uo uthcj name that he had.
l^'reind. But did yon not liear that he waa
rejtuied to be a Roman CaUnkheF
Courtney, i have heani that character of
htm amunf^ tho^e that 1 have known, but X
ha?e very little knowledge of his reltirioti.
L, C. /. Is ibi'* what you can say ?
CouHnct/, There are several uthers that
were witnetisefl of thisi as wlH as 1 ; 1 neiiir
saw you^ sir John Freind, br-fore in my Idc, lo
tny knowle«Jg:e, nor ever spoke to you.
Freind, Sir, a note vv. ■ ue, thatyou
could 4o mesomeservi' .4 ^va* tlie
reason 1 st;nt for y oil 1 u.^ i: ,Wt. I'jnj>euter,
Mr. King, and .^fr. Payne may he called.
X» C, J. iJavc you done with this man then?
Freind, I)u yuu kuuw captain Porter, Bir f
Cuui-hir,f, Yes, 1 do. Sir,
i , do you know him to be a Ro-
man I
Lour i net/. Sir, I ha? a heard that be hai
wiii'b a chanictcr.
LC.J, \\'' h^nhe?
Courtnftf, J iisao Catholic.
Lt. C*J, Thalii ouly L^ Inar-say.
Frdn^d^ My lord^ I hate done with this toaii*
L.CJ. Myon fi ' J hmi, iben
the Icei'per nia)' at- in,
Courinei/, 8ir, 1 i»;i»f sui.k uni-; else In say.
Fraud, My lord, he sa^s he has something
else to sav*
L. C. J, Then set him up a^atn : (trhich
was done.) Well, HiT^ what is it you hare
mofe to say f
353
8 WBLUAM IlL
Courtney. Two or three days after that
time, there was a prisoner then io the Gate-
house, who was ao ensign in the army, was
rcadintrthe Flying- Post in my chamber, and
in that Fly in<;- Post, there wa& news that dpi,
Blair was making a ^eat discoFery, and that
he had accused sir Jolm Freind, for havinpf
I'eoeived a commission for a regiment in which
he waM to be a lieutenant-eotonel, and said a
great deal abont that regiment, how he. had re-
ceired subsistence money for them from sir
John Freind. A little aftei; captain Blair came
into the room, and asked me if I had got the
news ? I told him yes ; and cajitain Blair then
asked what was the import of it ? I told him it
was there, that he was making a great dis-
coTery, and particularly, that ne was to he
lieutenant-coloneito sir John Freind, and had
received subsistence money from sir J. Freind
for the men of the regiment. Captain Blair
answered, that they might put what they
would in the news, but he knew nothing of it,
nor flid he receive any money : amd this was
a great surprize upon me, and upon those
others that heard him, when we were told he
was to be the main evidence against sur John
Freind.
Freind, Well, Sir, do you know any thing
else?
Courtney. Captain Blair was bemoaning
himself afterwards, that he went against hn
oonsrience in this thing ; and his wire told me,
that he was very much concerned, becanse he
was fl^oiiig to do this against his consrience,
and she was sure it would break his heart
Freind. Du you know any thing more ?
Courtney. And he told me in bis chamber
vpoD Friday night last, about Dioe o'clock I
came to see hira, he lay upon his bed Tory ill,
mod his wife was with Aim ; 1 asked him how
he did ? and he chipped his hands, and sakl be
was very ill. Pray, said I, what ails you?
i^ure you have gotten some very ffreat cold.
Oh ! no, says he, life is sweet, I don't know
what it n I ail, but were it not for liiei I should
never do what 1 do.
JL C. J. Did he tell yon, he went against
'his conscience ?
Courtney, His wife and he spoke at first,
that he went against his conscience, and he
believed his conscience was in a miserable
•itate ; and this 1 spoke innocently among some
of the prisoners, and I did not know that it was
taken notice of, but it seems somdMxiy baa ac-
ijuaintcd sir John Freind, and so I am brought
here ; I know nothing of being a witness, I
assure you.
Just. Rokeby. Pray, who were present when
this discourse was between you and Blair?
You say there were two other persons present
when thill discourse was between you and cap-
tain Blair, and his wife : who were thoaa two
persons?
Courtney, What discourse do yoa apeak of,
my lord?
X. C. J. You said then wm two
te your chamber.
Triai of Sir John Freind,
Courtney. Does your lordship meai
reading of the Flying- Post?
L.C.J. Yes.
Courtney. My lord, this genttemao
was speaking of, was lying down u
bed, and captain Blair came into m^
just after the news was read, and ask€
I had got the news ? I told him, yes ; I
me what was the import of it? I t(
they said he was making a great dii
and particularly against sir John Frein
L. C. J. Well, and who were there
Courtney. This ensign that is noi
soner in the Gratehonse, who, I supp
say the same thing.
Alt. Gen, Pray, my lord, let Mr. ]
called while he is here, and let him kn<
this witness says, that the Court and Ji
know what he has to say to it.
L.C.J. Yes, pray let Mr. Blair he
in again. (Which was done.)
L. C. J. Trcby. Now, let M^ Cour
Siat what he said now before about
kiir's declarations to him.
Courtney. My lord, 1 tell your 1
there was one Tooley a prisoner in tl
house, when he heard the Flyinsr-Po
bought it, or it was ordered to be boug
it being brought into my chamber, 1
him to read it, and I was walking al
room : in the mean time captain Blair •
and asked if we had ffot the news ? ^
yes ; imd he asked what news there w
I replied, it is said that you are making
discovery, that you were to be lieutel
lonel to sir John Freind, and had re
great deal of subsistence money for tl
ment: says he, they may put what t
in their news, but J know of no reginr
of any subsistence, nor of any com
The man that read the book will say tl
that 1 do.
Att, Gen, When was this ?
Courtney. This was one day w
Flying-Post came out, the last Satu
one I think.
L. C, J, But you talked of soinet
should say to you of going against I
science.
Courtney, That was upon Friday ni
I came to see captain Blair, and his '
with him, and captain Blair was very
dapping bis hands, and groaning, aiid
himseli^ M>d in a very miserable a
truly« I thought he was giving up th
I asked him upon what account he wa:
and toM him Ithought he had got son
cold: he told me. No. Well, said I,
BUir, I understand you are Cfoing to
to Hicks's-Hall, and I pray God din
Says he several times, 1 pray God i
all, life is sweet Oh 1 says his wife, i
he would never do it, but to save his I
it foesagamst his conscience : so said ]
yon have had the character of an hon
tlcfflan ; I hope yon will shew yoursi
wui I jgnj Qi^ w^ jon s I wish n
./or High Trtasm*
yoar door, Savs he, I am an
I Hkfta I titat b the tning ibut ti-ou-
^tWDtfthtng" tu ibat purpose ; whteb
like riiiftorie of cunBCieDce ivhicb
li»e fror14. ] Apiike of tliia mtio-
h^ tlie pmonerH, aori it seems, it
Niicatea to air John FretnO, and so
fl Iftcrv to tp!$tify it.
Prav, ¥rLal sny you to l1»is, cap-
'Voa bear whav he sav^; do you
Lnni wtuU ^ou Icdaw of it.
You bear what dis<M>ur^ he sa) s
nov ; w bat say you to ir ?
^Hlcml, this ^eutlemnn crowded
l^b tne ; my wife m as wiiU mc,
imis be bad acuri of brandy^ whlih
B for OK* ti" I had a cold. God
t, I tle^ircd Docomiiauv mlglit
lays be, C4i|Uain BlLur/ I have
\ been ao boue^t ^eatlemau all
I yoci are going to UicKs's- Hull (o-
«l • great deal of such discourse
I nray Ood Almiapbty direct you !
t knrow paraed. 1 was very ill,
1 Ml far from bdofif wejl nof¥;
tbiog^ of remoriie of conscience,
. leerey atuJ sahatiou, 1 uerer ex-
saeb tmngtohtm.
Did your wife say, th»l you were
%at you wear goia^'to do that which
Ml floftacteocef and you would Dot do
pm y«Ktr life T
N», I aiD sure »he did not.
L THii ibat gentleman thrust him-
IMV oofnpaiiy, or did you desire hitn
|a CD you f
No, be tlirast himself into the room.
Tbe &i(Uc was hard by» and I
Mr groan, and ^o I went in to
body hid access to him.
where i* tb« keeper ?
I am, 8ir.
I beg of you for God's sake,
to roe hut my wife ?
i« keeper of the Gatehouse
ly fweor him.
OaldioiiK was sworn.)
lat do you cay as to captain
I hat tiobudy should come to
was to Ci>me to bim uDle$«i
\e» ujMin lino.
ol*tkat man*s com-
^ nothing of it.
ilvraya desirrd to huve the door
'I" <nside, that tiol^ody
I) \ had a miuil to.
n^-e he was ill, and
that I know of.
with me came to me
man was with ' me^
hack ; ami she said,
dear Blair, do not
thbf
A. D. 1696. [38
B&wr. When this gentleman was with me,
she desired me uot to say any thing before him ;
because, said she, 1 do not' know but be may
be a trepan.
Court net/. Upon the word of an houest man, ^
and my reputation is nn dear to me, a>i yonni i» i
to you, she &aid nuthin^jf ni that* She itdd me,
you were going to do thi*t which was at^ain!»t .
your cohsf ience, aud you would not do it hut
io save yuur litk
A(t. Gen. Pray what is lhi<i inau couMuitted '
for, you kee|)er?^A'er/;^n He ii committed
for suspicion of treason.
Caurtnej/. 1 have boen taken no five linn*a
upon suspicion, and this last time 1 »us com-
mitted to the Gatehouse.
Att, Gen, Where do you hve, Sir ?
Courincy, Tn Old 8outhampt<m Buildings.
SoL Gen. How iong have you lived there ?
Courtney, I have lodged there about four i
3ear;!i aud an half; there are fieveral pei^soai .
cat! come and give a testimony of me,
Sol. Gen. How came you, Sir, to be broughl^ j
as a witue^ here ?
Courtney. 1 was surprized at it: for my^^
part what I did was by way of pity, seeing hinn
in such a condition ; I iiilicfl your soul, be-
cause you and your wife Volh shewed so much
trouble and remorse of conscience ; a* for sir
John Frei nd, I never saw him till to-day in all
my life, that I know of.
Alt* Gen, What countr^^mati are you, Sirf "j
Courtney > I am an Irishman born.
Alt. Ocfi, Have you any estate in Ireland ?
Courtney. No, Su", 1 have not*
SoL Gen. Prav, how came you to go to Mr.^ j
Blair? ' " I
Courtney, I have known him t long time;']
f have been of\en in hi« coiujiany at tbe coffee-
houHe; J cannot say I am jiittmiitely acquainted -
with captain Blair, hut only us I h«ivr«eeu him ,
in the coIfee*hou*e a great many tiinesi.
Sol. Gai. But I u&k yau huw you came to J
go to him ; hecuuseit ^pems he desired nobody I
should come to hiui hut bis wife?
Court nty. He may say wliat he pleases ; for ]
he lay tirst in one room, and then in atiothef| i
aud he could never go to the necessary house,
but he must go through my room ; but if yon ^
(dease to send for Mr. T^ndey aitd capt. Court- ]
ney, they will say aud swear that these thlngi j
passed iti their presence, or to the lame piir*
iM>se, except what passed between bim and ma |
m his own chamber. Ensign Too ley did read j
the pa)>er of the Flying- Post ; and as for j
what lie said of his knowing DOthiiig of thf 1
plot, it was talked of up aud down the prison,!
mid m it came to me ; and 1 invited liini iuto]
my chamber as my old acquaintance ; thougb j
1 was not very famdiar with hiui; aud as Ti« |
declared, he knew no thing of the matter.
L. C J. You hear what he says ; i^ptaiii i
Blair, did you tell hitn you knew aothbg of j
the plot ?
Btair. Yes, I believe I might at first ; ai I
we were talking w hen 1 Brst eame in, and t ^
told him the truth : lor 1 wa« iniioceul as to
39] 8 WILLIAM m.
lie assassInalioD, for indeed I wasi so ; and as
othe invasion there was only some freneral
discourse, and I was not willing to explain my-
self among* such people as they were, when
they asked me any questions about it : I had
to do with the kiner and council. '^
i. C. J. Sir John "Freiud, have you any
more witnesses to examine ?
Freiud. Yes, my lord, I desire Mr. King
may be called, f Which was done, and he ap-
peared ]
X. C. J. There he is. Sir, what would you
ask him ?
Freind. I desire to know of him, whetlier
he does not know captain Blair and captain
Porter to be Human Catholics, and whether he
does not know me to be a Protestant.
King. I am of ojiinion Mr. I*orter is a Pa-
pist ; he was til ways taken to be so at Epsom,
where I used to go, and where he used to go,
and he was never looked upon as a Protestant.
L. C. J. And what do you take sir John
Freind to be P
King, I take sir John Freind to be a Pro-
testant ; so he is, and so he ever was.
• Freind. But when you have bf^n in my
company, and they have l>cen speaking of the
government, what have I said or done ?
King. Whenever they started any reflect-
ing words upon the government, he was used
to say. Forbear, I do not admit of any duci:
discourse.
jUl. Gen. How long have j'ou known him ?
King, He has been mv actpiaintaiice this
fifteen years, and marriecf a relation of my
wifes husband. (At which there v/as very
great laughing.)
King. I mean her former husband.
X. C. J. He has reconciled the matter very
well tor tliiii point ; for he tells yon he meant
her first Iiusliaiid.
Frt'ind. Ay, my loni, no doubt of it, he will
recover it; it was her former liuisbaud. Mr.
Kinjr, <lou't you mean it was her Ibrmtr hus-
band ?
King. Vcs, Sir, I have told you it was so;
her former 'uusbnud's name was Tiiomas I'ase.
X. C. J. Mr. Tanner you are to lm>k upon
two statutes, the one is ii Juc. 1, cap. 4, and
tlie 30lh Car. 2, cap. fi.
King. My loni, 1 ha.olicnid him say, if I
bad uot taken the oaths to l^ing Jame>.* which
oaths are iMiwiini; to my coii^cieurc, I could
as freely tako the oaths to the present govern-
peikt, as any iii:in in Kiii;i;iiul ; but I will live
peaceably a'td (|i>i(.'tly iiudc-r the govcriiment:
out because Id* not take the oaths, I am dou-
ble taxe<l, and I will pay it.
Freind. My lord, I desire captain Kaines
may l;e caJled.* [Who appcareil.]
L. C. J. What do J'ou a-sk him. Sir ?
Freind. Captain Raines, I desire to know
ofyou, uheiher Mr. iVrter and Mr. Blair are
Roman Catl.oik*s ; and 1 desire you to speak
•a to myself, \ihat I am.
Kaines, They are so reputed to be at Cp-
fom ; it was also so reported there ; and 1 have
Trial of Sir John Freind^
been acquainted with sir John Freui<
years, being concerned toeeth^r in the
Bands of the Tower- Hamlets, and 1 1
in his company several times since
came in, and never heard him give an^
ing language against the governmei
life.
X. C. J. Have you done with him.
Freind. My lord, I did not hear I
I suppose he has declared, as to capta
and captain Blair, that they are Cathc
X. C. J. He savs. Porter and Blai
puted Papists ; and he has known y <
time, and l)een concerned with yo
Trained-bands, and never heartl yo
upon the government since the king c
Freind. My lord, I desire to know
he believes me to be a Protestant ?
Kaines. J did always take sir J oh
to be a Protestant.
Freind. Then, next, I desire Mr. C
may be called. [Who appeared.]
X. C. J. What do you ask him, Si
Freind. I desire, Mr. Carpenter,
will acquaint the court, whether y
captain Porter to be a Roman Catb
what you know of me.?
Carpeiiter. I have been at Epso
suuiiuers, and usually am there in
time, and he was so reputed there :
sir John Freind, I have known him al
20 years ; I keep a brew-house, as he
lie have been concerned together, ;
had several occasions, upon the a(
trade, to meet him u{>on particulars of
ment, when any partners came in, an
knew him but very orderly and civil
heard him reflect any thing upon th<
menf, but was always peaceable and <
was always looked upon as a IVotes
went to church. That's all that 1 cai
Freind. My lord, as to the Slati
will your lordsnip please that the Stat
be sent for ?
X. C.J. Yes, yes, we do not forget
you any more witnesses:^ Call all i
neiis^\s,'and we will consider of that at
Freind.^ I desiie Air. Hawkins
called. [Who ai)i)eared.]
X. C. J. What sav you to this gc
Freind. I desire you, Mr. Hawkir
an account what I am ; whether you
to be a Iloman Catholic or a Protc^ta
JL'ukins. I have known sir Job
these twenty odd years, and have ha<
v>ith him many times before the chau
verniuent, and since, I ue\er heard hi
upon the government ; nor never hea
siieak slightly of it : and as to his bei
Ptotestant religion, 1 do know as mu
man, as much as another; 1 alway
him to be a Pr<»testant of the ('hurcl
land, as good as any man alive; I
went to church.
X. C. J. What, since the Revoiuti
Hawkins. I have nut been soconvei
hiia since that, because 1 went out oft
8
Jhf High Treason^
; 5ut [ liislinrt^ there are those
tmu give an arx'uunt of thtit
ImaturMf^uld muy be oilled.
^fli I ftupp4Jt>e yau hiivedi>pe with
r Miiiild stood up.]
vmi, Sir?
Ill, i Ua%v known <^lr .lolin
V, Mlwnc ibf"^^ iweivtv years,
him as a smcere
I Imh'ii ill hrs coni-
u'lj, ami I i»evef lieurd
1} of the y;'overnmefit.
^ ^ooj Q, IVutc^^tJiiit Q$ any
^ as »ti) in England ? Thafs
t .1 il«ire Dr. Holhnofsworth
kiUni* iBut be dill not uppear.]
Il Thru, my lord, 1 de&irc 5Ir.ljUnton
MM.
If Tb'^re iM Mr. LuptODi wbat would
re he win jriFc an account
liU'f what rrli&fifm I am of I'
>rd» lui to sir John Fri-iud, 1
I lii ; he \va!f |dea.sed
Ik his hou<e a con-
, i».Hu rj» iiK*j aod afWr ihe Revo-
^sfU'r ihi' Uvfolotioii ive ulMayis
pi^,.. ....;.. irt tjjg tJimrch of
- pn»y for the pre-
' '^^ »ry, at v*hich
yon le<t bini ?
or tive ytara, aa I re-
1 1 'is family lessen eil ; he
May to ine, Mr, Lupton, I am
bndjfej and n»y fiHiiil} lessens,
'te or <&ix yrnrs a^^»), and 1 shsitl
on for ynii at present ; hnt if
or a ehapfain fi^ain, 1 'twill
i: ifitif he WHS pleased to sixy*
lm\^ is it, do you say, that
(ire yrar«; and a* to any
j^ a Papisi, I have ofren
'otifi •* - 4...I -^IjouI the Po-
bit h'^ '^ken vviih de-
fici|iU . - !\ipiii<s.
ia?c you lu'nrtl me ^peak of
ibuut any thiii^f of an invti-
i wouUI ituitnrt! fny iHe for the Fro-
fl'lpiiii, or any lliing of that if"*
(•ifcbCollfTtJw!, Mr. Ernkjne's Ob-
l4M 111
its ou the proposi^nl
t. It hen i'atkd for
Cane, A, D. I71>1.
-e. lol. 9> pp. {j'2i,
Ti Ciflp, fcil. to, pp. 2<J6, rt Kef|.;
I Cam:, r ' ■ • ' • ' -nVs
, IS, |i; ; in
A. D, 1690. • [iS
Lupion, 1 hare often beard you say, as tqj
the present government, that thoujf h you eoQlcfj
not comply ^^ilh it, yel yon won Id live peace- 1
aUly under it. When we liave been talking oM
these thin^, you said you never would be iiuj
a plot ; and iliouorh you could not comply with J
the present ^Ternraent, yet you wouhl nevei^ j
concern yourself in any d^siarn a^raiu^t it. FofCl
my part, my lord, I know nothing by him/l
hill ibat he is an honest and a worthy gentle- 4
iiian^ though he be so unlbrtuuate to be under
tViis aeeusatton
Ft£tf*d. I desire Mr. lioadley may be calltd.
[Who apfHiared.] 1
L, C. J. WeLh what say you, Sir P *■
Freind, Pray, Mr. Hoadley, niti yoii g-iv^j
an account to the court uhat you know of mjl
beiog a Protestant, and of my hie and oooverij
«a.iion ? Jl
llmdlty, ] believe sir John Fieind is a vt r jl
settled Protestant in the Church of Erti^dand jl
and 1 have reason to believe so, bec«iuse I hav^j
frequently discoursed with him, U^^ause 1 havea
had a couple of children that were his nejihewstJ
npon whose account 1 have been forced severafl
times to VI ait upon him ; and he has often saijj
he never would he in any plot, and his word^l
that he used to ine wi-re reiOly very remarks* 1
ahlCf *■ Catch tnc in the corn, aint put me iiij
* the pound,* J
L. C X What were his words, Sirf
HiHuU(}f. He used to say he would neter bil
in any plot ; for, s»ys he, ^ Cati h me in thtt'l
' corn^ and put me in the jionnd:' and I havej
heard him exprfss himself with a great deal t
dea-vtuiinn of king-kilhnjf. and those principle^,]
of the Papists, the assassniating; of any crown*']
ed head.
Alt. Gen. Pray, 8tr» how came you to dis«J
Cfinrse with sir Jrihn Preintl ttknit kiiig--kiNin^J
ami plots? You are a school ruiister itseLmsj]
how happened ttiis sort of discourse betweeiij
you ?
HoadU^/, There will be discourses aboi]t.'|
tliese things sometimes,
AtL Gvn. But, pray, how was the discourwl
introduced f What was the occasion of the dis- f
course? iSure there wa^i some occasion exLra^]
ordinary for him to express himself to you.
tloutlUt/, 1 cannot remember the particular j
ocra^ion, but such iliscourse ihei^ was.
AU. Gi'n. Pray^ how long* ago is this (ioii
that tins discourse was?
- ilttadity. 1 lielieve it was five or six timeff
within these Iwo years.
Ait. Gen. What, have you had the sanfipl
discourse five or six times one after another? *
lltuuitfy, I cannot say that ; but those used
to be his words.
Aii. Gen, What, in common discourse?
Hixfdiry, He said he would never be in any
plot.
Freind, My lord, I can bring a rreat many
more witnesses of this kind, and 1 believe I
could have a thousand to prove tni? u Protectant.
L. C, ^ Chll whom you will^ sir John, we
will hear them.
«3] RWTLLIAM ITT,
Frtmd* My lordf 1 am Tfry ktfa to trouLle
JiiiL i£o4r^. No, it will mot be reckoned
r InniUe, we will bear all your rTidence.
Fma^ Tbere b one Mr. Willis aod one
. UcQungi ; boi I dttire it maj not be for •
L M to the mctfl of partknimt, for they are
veiy nialcrt&l for nie, ai& ] sbmJt shew by and
Itye. X^''* ^^'^1** apiMsanxt.]
X^ (;. J. H eU, wLa »«y yoa to tbis gen-
iWind. Mr. Wiills, I desire yon'd ffi»e an
accottot to ibeir lordsbips, what you think of
ne^ aa lo my betoj^ a Protesiaiit, and how I
luive bebared myaeff io frery reapect all aloog?
WIUU, My ford, I bare always taken it for
paiilad; thai tho^ tl>&i come to church are
Proletiaiili | and I did always take sir John
Frond ta be a Pirotealaiit. Hie acqaaintanoe
I bad witK bim waa sioce he H^ed ia tbe
puU of Haduey, aiid we have bad some con-
vena together; and tiiere have past friendly
▼mli between iia ; and I do uot remember any
diiGoarse ivbile 1 was there that tended to the
goveromeot ooe way or *.n other. 1 was uever
veryofieo with him, bul bis discourse was al-
ways ▼cry obh^Mog, discreet^ aad prudeot,
wheoerer 1 was iliere.
L, C, J, Pray, Sir, when did you see him
t eharch ?
WillU. Truly, my lord, I camiot call to mnd
rbeo it was.
L. C. X Cannot you name any time ?
Willit, He may be at church sometimes,
^.nd I not see him ; our seats are at a distance
fnm one another, and there are pillars between,
that one can't sec erery body ; and I caooot
cafl to mind when I did nee him last at church.
X. C X Has be been there w ilhin tbis year
Or two ?
Witlii* fie has been gone from Hackney a
fcyear atid alxive.
Mr. Mountague. Pray can you say you
have seen him at church within these four
years?
WiiUt,. Truly I cannot call to miud whe-
ther I have or DO.
Frrind. I desire Mr. Hi-mttio's may lie
eslte<l. J roidd call a grcTil many more, but
tlu-y are much in the *iarnt" eflVct sb these are,
i. C. J, I 'all \*'fioii» yi>u wtU, sir John, if
you thiuk fit to call iheni, we will henr th*^m.
Frcind. Being they are not here^ I will not
trouble you further ; it is all to the same pur-
" We*
L. C. X Well, take your own course ; if
^jou'll call them, the court will be sure lo hear
"^Ihem.
Frciod, Hut, my lord, here is one thinif
thai I iiHist d»:i*irL' your lordslup^s direction in :
if thei*e ^feiiilemen, ray lord, captain Porter
and cajttjuii HloLir, who are the two witne&ses,
and iiune but those t\%o affainst me, if they are
Papist j$, they are not cfoou witnesjies against a
Protestant, to prove him a traitor within the
■tatnte of the 2:>th of Edward the Sd, For
Che stattite says, lie that is indiaell must be
Triol ofSrJiAn Fremd,
pro? eably attainted ; which caMiol be by
eridenoe of Papists, and tbose that
take tiie oaths of obedience, wbicb are
to be taken : and tberefblv I tonbly
yon, ibat you will ptrte to tender
oatlkB, for there is a atatnle tn tbe
cap* 4, which appoiiita the tendering
nalbs to them.
L, C. J. That ts not oar bu^nesa it
time.
Frtind. Then I mtist b^ yoor pardon
they are not substantial witiiefacs ; f^>^ ilm
the hkw, as I am Inlbrnied. I biimViI y sol
to your l<ird$hip, whether tibia be not tbej
1 only speak it lo know whether it be en
nient for me to rehear.-e it, I asked the f
tioo before they were sworn, I kow
i^bether it be coorenient for me to tm
now.
L. C, X Jly, ay, it is rery oooTenienI ■
now is the proper time.
Frtind, Before e? er they wefe swore I n
bare asked them tbe question whether i
were Papists or not, but tt was not allowf
was Of er- ruled : now, ny Lurd, there is s
a statute, aod I humbly beseech you to
them the oaths, aod that would be
stration that they were Papists, and then
could be no ^ood witnesses.
X (I X You say well, if we conid
such a statute, that no Papist should be i
ness ; but there is no such.
Frtind, My lord, 1 beg your pardon, ai
hope you wdt not take it amiss ; 1 tMct w
I am odrised to offer,
L. C, X No, no, by no means, theie will
nothing takeQ amiss,
Frtmd. For the sUtute of tlie25tbof
ward llic third, and that of the Suth of 1
Cliarlts the second, and that of tbe 3d of k
James ihe firi»t, cap, 4, here it is p
monslrable, that Papists are not tu be
atrainst any Protestant, who is with
teemed a damnable heretic \ and then they
tieve the fK>ue and (heir pneiiti^ can at
them from all oaths, and tbey are declai
be given to evasiuoN, aail e«|ui vocations* I
mental reservntiniis, and can have disiper^sati
fcir all thf ir villanies ; and the rt lore they
not to be crediletl : their eridtnve is €%iu*i f
unh-ss they will in thi^ manner upon I
oaths renounce these prineipleu: therefor
hnuddy Iwg they may have the oaths tend*
them. '
L C. X That is not our business now,
Frcind. And, my hird, jonr lordship
pleased to promise me that if any matter
law dill arist*, my tokmsel i$hontd he hcard^
L, V. X First let us know,, whether llieri
any i>uch law as you mention, or tu any £
puqjo^e.
Freind. My loril, t desire my counsel i
come in, and speak to it : for my life is in t
gfer, and so is evevy lionest gent]emau*s
every day. 1 am as clear as the child unb
I have no witnesses to prove any thing,
therefore I desire my counsel may be hear
>u VI a
J&r High IWesstm^
^tJL If tbr nniri did think there
b Hm ot^ectfofi that yoa tnake>
I Mil lit jrov b«Te ouum^I^ we M-oald
Djf w« mre de&ifoiis to do it li' it
_ Wkit, my lord ?
' To allow you counsel, if there were
• in this objection io relation to Pn-
auts viloesaes, I would be gtad to
I tlttt would own this objecuon :
teliii I iM no coloar in it : the statute
irfkfCidaeed tbat ^ou qnote, and then we
H «t, vhitber tbera be any things like it
4 M tftiole, Pnj will you read those
vailifcri jnra t^ ore in thai statute to that
IrmL t un not iO expert to know the words
Idbiad ilkr ; and therefore I think it is le-
ildbald Lave connseK
IX It ii ftupiio«<^ you have had crtun-
Htialt tupfiflfe your counsel that have ad-
^Wto make this objection, have instruct*
i^ t« ileraibiHits in Uie statute it is.
hmi ^y lord, 1 desire my counsel may
troftdidtudheardto it.
LC J. 1 It'll yoOf that by law M'e can-
■I hm ooonid to any such matter lliat has
^fiMr^if olMection in law in it? though Ibr
^ Mn, I w»«h we could, because 1 wonM
mhr^ counsel can say to make
^tb ion, that Papists are not
tfml My lord, I wish you would hear
i9««Mlnit.
t»Ci. Lmk ye, sir John Friend, you have
^■■idhn this statute may he turned to> and
y^ A^ In have theiii read, and they
^ ^ ife read from the be^nniug^ to the
.A^ 1 4mM the stjMnlcs of the 25th of
(lbt]Hnl« the 3*! ues the Ist
KSUib nf K. UieSd^may
^ Wkal diaptcr is thai of the dOth
tIw tli« ac^ootid ?
fttally It is not put down in my
, A Then look out the chapter, while
■ftqgf tka iilhiT^ Lyjok ye, g:eut|eiijeii
r jonr, «r John Frejhd does desire the
Kfoir t^ of Edward 5, may he reml,
k m Ihe sUltitc alMjiu treason*, and the
-t.L. i, t.» t^ iniitctcdY and it shall
' Jirken to ii.
This* iH made in the
I Ihv thiril ** A do-
Untl he judged trea-
inious huve bei*n
^<4 tri^aaout shall
at i^L"
^Jfml, 1 h«^ the favour I may
1 10 be retid.
art,
ium; it will
II, 1 am lid-
• »i» vv\ our h ua tn^a-
TittBurrecUon : and iu-
Tiling men to come from beyond sea is no
treason, unless a foreign prince be invited to
corae with bis own subjects ; for Euj^lish,
Scotch, and Irish are not enemies, hut leUels^
and to be dealt with otherwdse ; therefore 1
leave it to your lordships, for I am no lawyer,
only 1 am advised to insist upon these things.
Then the Statute of the 2r.th of Edward %
about treasons^ was read thougbout, only about
the middle the priaooer made some interrup-
tion,
Freind, 1 believe this statute ts not the sta-
tute 1 go upon ; that which 1 mainly insist
u[iou, is the statute of the third of king; Jaxnet
the tirst, cap. 4,
J list. Hchcby, This is the same statute yoa
arc indicted upon, tha iH'eat statute for trea-
sons ; and as to your objection last mentioned,
what is treason and what is not, he is not yet
come to that part,
Freind, Well then, let him go on witJi it.
(It was read to the end.)
L. C, X Now it has been read, is this tbtt
statute you would have ?
Frcind, There must nei»ds he a mistake bm.
to the chapter, it i^ set down the 25th of £dw«>
S. but there is no chapter.
L. C. J. Yes, this must be the statute, ii re-
lates to treasons, and it has those words in it,
that what you'read out of your papers relates to.
Well, that wt may go on in order of time,
what statute of king James is it that you men*
tion ?
Frcind, It is the Sdof^king James 1, cap. B^
it is upon account of tendering t!ie oaths ap-
poiuti^d to be taken bv the statute, and (reading
out of a paper) to tell the court that they ought
to have the oaths tendered theuK
L. C* J. That is the buhiness of another
time ; read the statute.
CL of Arr, *' An Act for the discovering and
repressing Popish llecusap ts . ^^ >Vh at part is it P
Freind. Truly, my lord, I cannot tdl.
L* (^ J. It is a long statute, but if he will
have it read, it must be read all.
Freind. My lord, I would not give the court
any trouble, hut it is about having the oaths
tendered to them.
CL of Arr, I beliere this is the para^ph,
^^ And for the better triul how his Majesty's
subjects stand a^Tectcd in point of their loyalty
and due obeihence," &c.
A great part of the Statute was read, relating
to that matter.
L, C, J, What else would you have read,
sir John Friend ?
Frrind, 1 only gather from thence^ ttiat do
Roman Catholic In capable of sweariug agiinsi
a Protestant, L»ecau!ie the piipe and the priests
can abawlvt? them from their oaths,
X. C. J. Well, IV hut have you uiore to sayf
Frkitd. My lord, t ojily « peak this as to Bo-
roan Catholics, tliey do not regard an oath
against a Protestant, because they have their
priests that can &b«olva theoo, and there fore
1
47
iviLLrAM HI
1 . 1 i.
.//.
...I,
anj t'<:a^^ 1 h<pfie vour if#ni»hi'> i«u: iii:.'^% it.
M vQu are ■: ▼ couo<«'=-t ; lor \*ia are aa>«ixuel
^r me. a<» «*';i aa itie kii:^.
£. C. J. Ye», >C9, [ woold Mp jou ia anj
tbia^ I cnuH.
J si^/^- M* fcrd. I itvik r>u : I «:«*>% y-<:
to fk«!^t nae. lor I am as inc'iocb a^ :h-r c'-.-.y.
onhora. i*hAL<oevcr th«4 ri.«^i i.avf» S4r>.rr. :
These are ha?'i tiiLa^<» 'La: jre iii-i uv>ti a
fTcnileaiaa. ar.«i bo um:i u •sifr ^: :l.-» rit^. tb^'v
itaaj ftwom by two PapHis, tsLo vriil swear
jL 6'. J. I^^k je. air Jobii Fri^:::*). have yoa
aoj viitn^vc^ tf> proifuc«r, i-iai tbeM: two men
faa.'et:«y •iupU«^ure or mAi.i^xsAizst jjj, 1^:11
tbev sbriCiM aceorte yru tiLi^!;. .'
trtind. My lor*!, 1 a f. ♦'"•ry I hi»e not iry
wit:!««fies: 1 have Deen «i ke^-^i u », :^^t I ha'l
not Lrne tor people l- crmc to lUfr : K baai d>x
my cAuaw-i to c-jin»? :o n-..: "t? . ••■■ S:i:iL liay.
thai, I til ink it wa^ Friidv ei-i ■ r YrA»y i^-
tMliinby: I h^ii rh^ui coc t. ': FrL-i^y iij't i*?
jrfUrriorHB: 1 wa.« koi v> €?•-.? rb*'. d>V.- v.*-:-
perrui-rH tu cvr.*: a: ine: •• ; Ti/ursfliy i J x-
«n oritf-r, iiu* r*!? r? wa* k iii!?t:iNfc ;a :»r; order,
aiifl I H«sifr: i f> a"*-*: R-' ■••Jrtrr ord^r, but 1 eouid
no*, wt ary if^iy (o t;- ^airiLer orler lor rae. ti>
hate irv trie:; .4 ti co rini eo^ufre !Ot>> zhin^.
or *'ise I iiLouJ'i i^aie I'/uikI out £dou^ ot' w'ic.
Att. G^.n. I a-1! sare he Lai! an onic-r t'.r
coumel. at th'^ «a[ne t;oie that oocice was '^ren
Ihoi or tii^ txidl.
7- C. /. Wh.-n was that?
Aif. (it :. On Tii^V ;V, !rv lord.
/.. C. /. *Vh4t sav V /u tr. I't. >lr. BaWrr?
^Ir. Bik^ . My *h'-.<, I .i:.l alt<-i..l »i.- John
Freiml im Tue^Iay la>t, m jitc inm r.' ti-.;: *it'
Hh fial as thi^ <iiy ; ard I 4t the 9.i:ue tin^c
toUt liirn il li^- ^M<;l*i iiamt.' b.s ^'mn* 1 10 tr.c, 1
w^iild |T'#..iire an oHer lor ilirm '" come 1.1
bir:i. The ut-il rnvnin-,: he .»;ts j.lexse*! t*
mnieirt mc sir Ba.-tho'oniew Sh«#wer ; I to*.»k
the iilvrty t-i t^\. biin. thai he Itui^ w) c«»a-
cernwl ar tl»e H'Misfr ot L»/nN, an«l at the com-
mittee affint pur!i;iin9!.tar> b:i'*iD">'4, sorn;:
otinr ]^r^f>ps ttiat ba>i tumeil hint of their
cot2ns«'.. iiii".*;:l»*nnli:i^ iir.ki* were |irociired
t«ir !jm?: Tij ,■ » iM liip:;- -s i!jeir csjUp.v L jtl b\
tha! Mi'-'-iii . t'.it \ V. .1 .T <{ • .-.i"*:!.!! i) .•! iiim. aiiii
l^rtat i!r'r ". « .i-. i''*»'ii 1. • !!ie ri.-i'^iiivra ; and
theretorf: l' • ^!/- J li -n tii C'lij-i'Irnt it, n'.iu tu
•eiir]to^:r [' jhIi. ome-* ^.i^jwer, ?:tul aay wlit^r
coini'fl ili't •« iia'i a ti:.ri I t^t. a. pi ku'itv ttirir
|>l»^i:«iirr<«. v.>,i\\*A.r iUe\ wnui'l atn-u I hnii ;
ami if \h: uijii!>t ^nil ni»r wonl. I i»>i;i!il procure
an oril<-r tor liiiii. Hut m-.l iif arj:.: troui him,
1 went «"i Urin«'vi:!\ ii> b:irj a^^ii.. acl he !
he hfiit to \Ir. NortlKi , but lif uouUi imt
K to him till be hail j^puke witu ^ir Hartho-
Hkiovttfr, but he wuaM send me word
I w|ht, yet he did not. Bui the next day
M Mr. BaddKh to ne to the diiko of
.f ZJ** >rr-.. .-* tf.i: ae w Uli! h,iTc .*.'
ijf' -1 ii..»--i. ' !^.t.:*-»ua:r-\ I prin:
'i-ir :ue .t, i *•; i*aj ike ^eot wim .r,
•.>;3 i .- P.i .-T-1 -^ ; 3Ir. U ciue;
Cr-*.-. t. .r ■ ...- -t iheixi. ^lk. r.:i
•*f»l---. I irr -••» :>*.w*iew'.iich- acN
u»l. aivi Mr Lii:r ri^b »err to b-
: . . Mr. b-.-.ei.-.i ii*; ibe ••r.'.'
r-'j€ I a.-ry i ;■> !iiri». 1 cat,P"t h^'|» 0:
ii:
. C^-^i WAS LtM *.r\lKZ t'<
Mr. Baker. U wa.s upOGTburvlaj
I Fr-i i. M_\ i'HiJ. may i s^^^k? *
/- t.'. J. ^ '-'».}>», wint}OU will,
F -i : My ir-i. the reasiic wh
kPy WtiRias^^ »j- th s : ihtrv wi
m^n. oo^r n)l«-;el t i.-h. iieuietumi
L !• as. I .^ '.'■ ;.-.T..«.k to :fn. ar*! 1
Jij'ii ■. .:'i i :ur. e iLorc^. 'h** J-.'ja
me IV ;..» !. ridvea^i -Dnltr to ::
.■-li atTe*: \L\ -fci :;r*»»-« ; l*i!t th«:\ ■
1.. ir,y ■:.« ...! ii:.--r^i.r'^. t> ;t liie-. i
r.i: ii\e<isr ^rr.'-a . ;n !*. and » a i
; ni« I.. ^42..; .t-y . ;" r^,^ aa.si?tAr:ce ; 1
«iw wu .i a 'cs jn t, ■■■••* wa> iipoo r
J.' . O -. .U : vr Mr. Cx-iii. :?:«
^"'jt. •"L-v^.: r'.rr :?. b? was !H;CJrfd
' Ci'^a ot Trea-'L^.
L t. J. Ii yju h.i:l w »iitei] iny
i\a I Li.i •: •; b»'en s»^ t i.'y j. • L».-.-tni\
pecte: I'j iie. you t^Ii^h:! : !;jve*iL..«vt»
ifi.il earn*' i».'; ti» ri.r. i ..iT.
Just- t:,.-r.i^'.. . ii-.t i»iy l-n| ;.ut
iii y .11 J.i*r :""•■«. c.'M \- 1 >hew a;>\ r
lhe>i»- jiersoas sa •ui'j iiife ait\ ii;ii
Ff-'fi ♦. >Iy '. r-L I wi- c «t ? ■ 'i:
ycr a-* to kii--v I'itse 1:1; ^^ : 4:.
tii;n:r. thi: a l.k: ; iisit'* : i.;*.. s.\n nii
ih.iij. t'.TU.'w. ::»!.. ii^,..r.i iiw*.' r»»il
null;.-! ti.» iii'i.^tr. Mi'-'litf ti i\ art I
iii>i .K.>i>r n«».
II "-^iy. N'T h;i*e voiir ;-. lii.ex.
lb it they aiv !»"::i.i:i Calbvl;'."s. bu!
lLt:\ a.«: rfi>;i:c»i«4r).
A. C". y. \\ cll. 1 raiiDLft It'll M : a:
would lidve Uir ■ i. ;|' ilit \ l,.'..» i^^ii
Ha*» you a»'._> m.-n. i.i sjC. s.r Joii:i
FuinJ. N ». mj lonl. I ieavo ii u
\i»ii, niiH tliejiir_\ '••co:iS4iiiTcl'it.
Sif. Li. :. Mj\ It |iL'a.so yniu- ;.-,ri
\i»u ijiMliini.i • t ihr j.iry.'l am of
iJ»i«» caM: r'i»r tue k.n^, uj^aid^t mi- J -.I
the ;.n9i<int:r at the bar ; and 11 c* uus
til sum up the e^idciue tnai iia> U
Sir Jo;in Fi'viiid, ilic» pii^-iuirai the i
but oui). that hi' li.i:ti h.ihorto had 1
inal. an { iiv Nu...i ii^«o i:j ;easoii t«»
ih.it Idi hi!ii ai.j. iiijury in i\\\ pa
sure b'.ih l.t», aii«! yuui ami :I | ^
lAtrJI reuiembtT, whcu persous of as
lily as he is or belter, had not the si
or liberty of defenw« in such ca^cs, a
tlenum 'has had : and though all 1
Jhff High Treason.
t fh^ tliiie was| ivitbin all our
i intiifCtticy wws no ssfety for a
^ moA leflifiir his Hberty ; and wtien
imm taken awa^, und ure uivaii9fl,
t^Srt iiiuiIiid'^. Th^ tJTiie «'ns,
|H«ileitif»^ ...r., , .,. ,..,.> iK- . ^.irrh of
qfwikklj litiHcff
Hrr a vt .1, L . iseit is
* y, tfip time was, when
kill when Pojiery (for
if|»f*n the wifne!i»fe») njts
hoth (14 and it ; and if
tfi« Uaxani of liis litV. ind at
, bJMl nnt re«cupil U5» Iherf is
i (ml ihut all Ihdt we feared At
[d hsirR b«4 n nmde i^ood upon
* ii uinchfdy thioif lo
J sort cif people
f*f\' \y > n what w<» ttjea
rontinimtly endcftfouriiitJ!: to
> * • t( i'i an ttnofratfful
iire<l his life tln^n
' ir.re to defend
'ji oiir ene-
c a i^tarlv of
they ran to in r title itcir
Wis iJi-uc^lyS Kulijecis, atid
If, ivfiJ-n h« is present
not »c<*use Ihe pr'(j>onrr al
I ttitiugti it IK pliiita be knew
' €^U? I dH^re before God,
[ Iciiop n"ibir;^ of it.
if it wffe iinuMi^ equals
uoi^ritiffiil tbio^. whtn
' ■■:' T my deli-nce, ihtt
life*; i>r when be
I ti- , . .... ujy estate, 1 aUotild
I spiTiltDi^ bit. '
* ||u- nrkr^ntfr at tl»e bar is not
J of» anil wUal yon
rvidenee nf» tnen
I rr*tite to bim : hut if what
_ iidfnee i^ic*in!(t Itim is true,
r«i th'' bar in one of those |>er*
%TCke all bc^ can to mak<> this
•^ bcvn tbe plate of rrtrt-'at for
to (!\ In fram pe^fifoutitw in
i M^y to m^k^ it »s nn-
tJiat fif^m wliioh fhey came.
—r iipTiin*! *hin» ii,
■ en it in «^vid>?nce,
>t ifi LeadenhaH*
prisoner, and
- r t<» consider
xrick the late
_ afid i at la«i, tliat
iMioui'l h ' dy hi to
' iHe J io bor-
eblcioaft . liiKiOhorsef
iii»i| ;; nnd that he
k« ittiAt ' '.td wiib
ite him
to meet
A.D. 1696.
[50
to go upon this errand, was Mr. Cliamock, a
person lately executp^l for the treasons of which
be was attamted. Mr. Chamook was diffident
whether this was the f ffeet of sober cousidera-
tioo, and thf^refore wnntd not undertake to
carry this message unlit there had been ano-
i!it:r oi*eiijig of the same persons 5 to see
whethf.r iiit^j continued in the name mind.
Another mcrtingf accmthngly was appointi^d,
and agreed upon, and thai was at Mrs, Moaut-
joy's tavern at St. Jiimcs'ii, and there, he says,
there were almost all the p<!rson« that were iti
Leaden halt -street and at that itkeeiing the
question beii»gr asked, whether tbfy were of iho
same opinion, that Mr. CharnocU siumld
Ifo to France to the late kinr^ upon lltat
me^^apfe, that I told you of before? they did
u!l Hirree lo abide by the old rfsohition ; that '
h^ should go, and make as sjniedy a return as .
he could, and bringr hack the lute ftiiig^'s anitwer.
Captain Porter tells you, that Mr. Charuock
did sfo to France, and "comcis and brin^ wonf '
l»ack, ibat the French kiogr could n<»t nt that^
time Bpare that foree that wjis then desired ;
dad sii it was delayed at that time, becaube tba'
Fnench king was uot at leisure then to employ* I
bis men in this service; but it was likely tor]
b»?e taken p^nce, but very latily, if the pron«
deoce of God had nnt prcTenleil it.
Oeutlifineti, our next witness is Captah
Blair, and be tells you, That about two yean
atro, sir John FreintI, the nvis«uer at the bar,H
niieweil him a commission that he had received*
from the late kiojj James, to raise a regimenlf j
of horse, of whieh he was to be eolonef ; thq
thiH was *i^ned James R^^x at the top, and
cijuniersigned by my lord jlelfiird, ami it wa» I
in p:<pQr. And that* there wpre a ^reat many]
c-'onyultatiotis between sir John Freind, himself,*
a Of I others, about the raising of this regfi merit,
aod jirovidinpf officers for it. He tells you he !
was to liave been lieutenant colonel, and wa* J
to procure as many o0icers ar»d troupers as hi
€Ould ; and he Icils you, he did procure several I
officers ; and he names ihem ; one Fisher wai f
lo be eldest captain, oneVernatti, ando0eHall|]
aniJ one Hertham, and that Bcrthnm was to bN^I
lionteiiant to Bliiir in hU own troop,
Geiitlemrn, a gi'cnt deal of tie eridefio9|
which captain Blair U^ given, is indeed out i "
sir Jubn Freind's own mouth, and that ia 1
strOiig' an evideuco as possibly can he iriveti{1
and he does f*.r tlut ptirjiose tell you, that ht j
said one Evun^ was to be a captum of hora«L|
and one colonel Slater was g^rown so loiM'h iii]
sir John Freind*8 favour, that he rif alk d cap*l
tain Itlair, in the opinion of sir Jidm Freinaf
and fiir John Freind f»>r that reason would biivt
two Ijeuteuoht colonel**, whereof 81 or er was to
bf» one. Captain Blair say*;, he took that
ariiiis, that any one besides liimself should be
in thiit post, and rercnted tt to t ir John Freind ;
atid thf'retbre sir John Freiud found out ano.
tlit'r ottice for Slater; :ind that wu^ to be a
captain of % trioft of horse, that khouM consist
of lion-Hv^ earing pnryons, and wluclt were to
b« an independent troop.
£
0?xr.i£3n?L £.i ^"U jm ^uc ic nil jk iLzar r*iua J^i'v-i^i mi iinr mt'ir
:l:.i ; -^!:»- nr-r inc -jt»^ ii-» a "UH mdkt uu iii»c Fsri'ia-a miiisr'iHiii n ir :
-:.^ .1' ii-.. *^. I -n riti rtiiut^u. v-iici le uw ler •!" ueo. iau r^ n je » r i. r ;
..-»i\ l.iU i:« KiS ^'iii. HiiC BT ^UlB Ml~' . Iiri I:i ILm Vic .1 0K *•.:
.' -.. •! '..it ii.:i. ii;^^ iiLi« j«t::iiinana. wk » ltd Uk ThuuD ii-si •^^■' «J- ■:*.
I ii.iiit-:- :.4..»^.:: u ii'rw. uu •!•( Ukc ir hik "nif 2r=£ ide*. i^ii. :s^'- itt isii-
y^' ...11*. ::.^ le vb» .. M k s:ii;uii ii&sv^e. i*i ^-t^l. ml uu am't t ;a sr •
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r ■■.-_•* -i-.a nr : • --_iiii i^- -ti sut:* am ik «-5-: filBi iiieaHn:. . 't- 1:
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M B^^9 nt 111 IXtt "vs*-^ n « ;:t^.^-
Iri^w'TfctH 4«M .. ;v)>« • .U «i.4 is.
ir oayntry^ and to your-
\ gnilty aceonliii^ty.
turn made,
1Wimip«ft o'' -^
Mivbia Mid I
^fvMttof tbr
Mr. C^mner. Ifj^wr JonlsUiji pleases, »jmre
«r t v^knl oa iJie Mtrie sitle, iMy loni, I do
•ttmoMtf jQOr lortl6lu|Miut of nn Hfiprehcn-
MB ilut ilittns tit ADV ibiij^ nccf^^ury la be
■il* ibe cudrt iti tfii?* matier^ or torVhe n^ !
(MbfeHii <»f tii4.* Jiiry, but, if imssibi^t, that we
M^tDttriticr the prisoner at tbe bar, tbnt tie
ImIiI mmU^rd me«iuref in t\m pr«»«(eoiitiou,
■Mliliini, hot tU4t be b jvroved cfiulty of
iiMBt of Mhtcb be stands &ccus4:d/iind
M wtSkw iherr tt no u ei^bt ai all ia tbe dc-
fi discredit one of
If, froili some dis* ,
lo buyfc i^iUKsefl be-
Uere |»roibtr.ed, in
e. And the first
. iipOQ Btuir'tt (irftt [
"1 t48 to I bat titne,
to uo more than lUin ;
ite^piiii lUair would nt»t ijoniess, when be
■■pBfed Itj n fellow- prisoner, tbat be uaa
i^^lfti^fO to horrid a de*ign. What iveigbt
tarifm «arli a& objection, truly I cannot'
m,km will k«ve it %a any uiaii^s judjarni^nt to [
«M^, ihttlat] ; be i!^ Iresbly taken '
Ifiancfc til (V [ < y not immediately
«■*• ba guilt In * % t TV mi<ly tbat meeta Uiin,
vyfl* fervoQ* tftiit would not bare liked bim
1^ «sktft*« atirh a eonfeasiun, but perhaps <
^^M faA»c dcslK^yed hifn iu prison for so
YW nWr dbieofiTBe wm upon Friday » tbe <
^»»4i», I ikiiik^ before captiui Blair went to
•M^f-V*!!, trt ah enaniinjiiou ; and then he
^kBi«<il into Btutr'ft cbaml«er» when i
[ ill mfon tbe bed, accost&Uim nith
fijf m bis ban<U and with gfoud ad> I
Acne tjuiei tbat bi^ idiontd take i
wbai he aboidd say at llickbV
t llie lik« : tind tiien ciiptain Blair« it
iSA exprec'c Mime relurtaucy in tbe ,
r«aaj^tt|[ Mbnut, as if it were ai^'ain^t
kwdtnatiou. If tii;it were true, !
n BUir ilenit^ it pf»kitiv^;ly U[K)n
l^tl «ras no more than, 1 am willing
fe fof tbe ttrKiuif r, t-npiain Bbir did
I l«r«v whi cait.e into iMinrt ; ^
f 1 xr iii uAttiral, since
br*fn tii% trkiid und inliuiate,
|WMiii^ 10 ib-p^He tbut a^j4in^t bim,
I l&«ly ta pritve fatal Ui hitn*
a'f in nn-'tbiT part of bts defence,
itK ;h ; ttie (4%i4len(*e brouf^bt
I Ibi . H *ijliita»scfc «f L' ri*puttrd
ll^abcMM'*, ;tiiii tbat the prisoner is a
iFMimaiit nf ibr cltureii of Eof/bind.
t-lt triM » ^'^ n Im* ritlionjUy
|pii V \A this, tlmt
Bfii*#^ « .*......; .vlitin tliey en-
• Maek and ex^tTuble tU-fu^n,
^tffjjt^od PapiMa ; but 1 am ^ure it
t ifrt«i^ thai Inr (krisouer ifi so doiu^
I faftd PnHdtanL ^
ht olijectA to I heir evidence tliia |
A, D, 1696* [54
lik'^vise, Ihalt if tbey be p*j*ist<, they may be
absolved by the pope, or their pricsM, tlhiiigli
tbey nboutd linear fiihely. I^oasibly tbnt tnajf I
be so, for ang-ht I know ; I confes^^, I mn not I
%ery ^p\i ait^uaintrd with tbe prinripU-s
thai rVli(^on t but ihi!¥ 1 dure say, that every j
one, who has h€ard \i'h»t ha«« been swiirn by j
tbeni, ivill think it ftn great a disserrice to tb« ]
popiii^h i^use and interest, th»t it will be ou#i
of the lost tilings their priests will ever ab*
solve them of,
Uly lord, there is another matter the \m*
soner has thought fit to in^iisl upon ; Ke hag
broog^ht two or three elergvoifn to dtfitse^ J
that whenever he diseonrseil ^ ith them (it |
seems at all times) he was talkitiir about fiein^
iu a plot, and ^ery readily told m> resjolution
not to be in any. It seems it still snaui up« j
|>eniiost ; hia professions were made very ]
cjiuscleiislv : for they all say nothinLr jutro*
dnced therii ; but of 'bin own' mere mnliou he ]
WU8 alwsvs declaring he wa^ not llien in a plot,
nor ever' would he. I hove heard, thut on© j
way, weak men ami chtldrt-n often dit»eover .
their knowleilp^e of a secrei iiilrn»fied io thpm, i
is, by a repeated and uunccetiHury dcclartng'i j
that they know nothinj^ of the matter.
My lord, in tbe next pbce fur \n*i defence, <
he itiEt offered a point ol law ; Imt I be r«*uri so j
well tjalisfied him in that, that I titiuk ho ,
waved it. He alledg-ed^ that a Imre conspti-aey <
to levy war is not treason ; and tht' court did j
him nght in deelurtng (as tJod forbid but they
should) that it h not treason : but 1 dtsi*e lh# ^
g-entlemen of the jury would consider ilitii tho
prisoner at the bar is not accused barely of^J
CO n<t piracy to levy war, but yon are told to <
what end that war was to be- feiied, to join tho i
late kind upon his descent into this kinplouf '
witli a French power, ia order lo drii^e hit «
iDuJesty out of the kin;»di>m, and lo deposo !
him Irora the crotvn ; which is a killing bim
in the eye of tlie law : and that is b i&(ti- trea-
son» by whatever mcuns they in tended to- 1
effect It; wt»ciher by war, or a slab| or any
other manner, it is indifftTent
In the n>'\t pLice, my lord, I would nofe
take nohce fd' another pari of his defence,
which had bcuii l^^tter let tilnne, wherein ho |
adnti(*» iluit he was prejient at the two ineeliny^
he is act used to have been at by Porter ; but
he only dtHei-s in one point, tint there was no* <
ibluu; ttilkt^l then but u^rnerat and indifferent
di>*courbe. I'lie witnesses ha%e swoni what
the di«}CourHe wns, and you will wetfi;h the one
ai^ainstt the othH"; his nlfirmntiou «'t a ihiojj
nnhkely in defence of tiiin»»elf, aini vvlinl is de- <
posed oi>on outli by the king's witnesses to the 1
coiitniry. ^ I
My lord, there is one thinif more I wnuhl j
lake notice of, and Lh^t is ih*^ evultnee o| >|r.
Bertham^ which we di> ii«»t produee nsiiaihieet 1
ewitlencc yuanist the prisoner :tt ihe Imr, hot af j
a eoolirmulion of wh»t was swum by Blair.
Aoil kt does shew tluU the uKitti'r Hworn hy \
Hialr, was not of late devised out of nia«
lice, or otlierwbe, to deairoy the prisoiier ;
I
I
I
I
I
65] 8 WILLIAM IIL
for 1 bat Blair acquainted Bertham frith, and
diiscaurHeU tiira atiout Ihe priticitMil matters of
faci, that are now sworo, at Wast l»o years
ttgtj; diid lK^»des his evidence and tbe evi-
d«fiice ol Bittir concur in tbi^ particular, that
lie was i(i lie Keuteitant in Blair's troop.
My lord, such & coocurreucc of eTidcoce
and other cirouinstauoes iu this maltsr^ t^rpatly
increr*se the wet^fht of the pro<if a^rist the
pi ihoiier, especially when there la notliinf^ tiia-
li-jiiil ull«*tl^ed by him in bis defence, and
therefore 1 shall trouble )our lordship do fur*
Iber.
ii^C*J. Holt. Look ye» geolJemen of the
jury. «jr ,loba Freinrl, the pri^ouer at the bar,
i» iiidtct^^d iiir hi^li tre;ison. The trcastiti thai
IS in«*rjttnDed in the indictment i» ciHispirinn;^,
c»tti;Ki«8in|^ and irn^pning- the death nnd de-
atinciiun uf ihe kin;^. To prore the conspiracy
and desi^u of ihe kind's dt^ath, there are two
principal overt-acN thit are ni^iioty insisted
Upon, The one n the eonsnltin^^ iiud airreeing
vith d'vrrs others to send Mr. Charntick into
Fiitiice to kio;; J^mes, to desire him to per-
suade the Frej»ch kin^ to sond over forces here
to assist them; who were to furnish other
forces for Iheraisni^' of a war within tbis kiu^-
doni, in order to drj#oae tbe ktng^ : and ecvord-
ingly i\Ir, Chai uu*:k was s>^r»t upon that de^igii.
The other overt-uct is the pri$on*?r'ji bavioAf a
coinntiN»ion from the tale kin||, and prt>parm|r
and direelini^ men l*>be levretl, and U> be rea«ly
to he in a reyimeni, of whnb «tr John Frcrncl
was by that commission to iie coUmel ; and this
was aiway« to assist in the restitution of kln^
James, and in order thereunto in the deposing
and exfujlsioii of king William.
These, yinitit:nien» ( tell yoa» ^rt the two
overt -aci?i that are priori piilly insisted npon r
and lo prove sir John Freind' guilty of these
ihere are two witnesses that have been pro-
duceil; the one it) explain Porter, whospeiJia
to the tir^t, the other is captain Blair, «vho
speaks to Ihe second.
Capi'iin Porter tellR you, Thai, the latter
end of May, or the bejfinninq- of Jime last, he
and sir John Fix^ind, nnd othens that he men-
tioned, were at the Kint^^s-liead tarern in
Leadenhnli'^lreet, and there they enteretl into
fi disi^dui'se abont the relomint^ of the late
kin;^^ James ; and they did con«iid^r anriooi*'
iheiuMilves w hich was the most effectual way,
and what were the miftct probable means m
have htm rastored : and tbereu|>on it was agreed
among them, that they woubl send a messen-
ger into France to him, to dewire him that he
would solicit the Frcocli kinc to furnish him
with jOjtKX) men, lo Iw sent into Eni^land,
8,000 foot, l,ODO hoise, iiud 1,000 draLjmins ;
and ihey did agree, that when these forces
were sent, consisting of this number of men,
then Ihev ^vould bu rendy to meet and join
ilicin uith 2,01/0 horse : every one of them was
to furmi*h his quota: lo which sir John Freind
did es^ptessly aj^ree. Tiie mes!i«!ni;er tliat
tliey agreed to »«nd was mib them in com-
p;huyi aud iteard tbe cooitill^ ivliicii was Mr.
Trial 0f Sir John Freind,
Charnock, who was lately tried and smce
cute»l .
This being at that tim<? determiuefl,
Cbarnock intended to go upon theeitxntwn
that dt^igu, and made ready for bis |oi
but hefoie he went, he bad u desire to
witii the company again, and Itare a f
djscoun^e upon this luatter, losee whether
did persevife in the re&olutioo tliey
taken. There was another meeiiog
week or a ibrtnighl after, which was
Muuutjoy'fi, a tavern in 8t. James'
wiiere tiiet sir John Freind, capudo
and divers others of the company t\
htlbre at the King's- head. And
entered into a delmie of the matter again
quesiion there wai, Hbetber Mr. C"
should be sent into France, as it was t
agn^d ? And there it was agntu iletej
he sboulil go ; to which beugrved ; ao4
tarn Porter says, that be dtd go about
three days alter.
31 r. P'i rtec tells yon farther. That about
time th it Mr. Charnock CHmelNtck, Mr '^
was in prison, and be did oi^t see Inm Uf
^rst return, bnt iif 4 rvinrds he met and
with him, and ask<^ hou whHt nus the effi
of bis negotiation ? And ftlr« Charndck 1
bioi, that lie bad done:oi he was dir*el«d; 1
he had been wtth kiu^ James, aod li« 1
spoke to the FnAocli kiiuj ; hut U%** iiusw«rr
turned was this. That the French kmi; bud
casion for liis force?* that year to lie oihfrwai
employed, imfl therr:fc»re he could tiot aHi
i siich a number of men thut year; and I
j Portfr asked him wbeiher he btui
I the rest of the gentlemen, ami urH|UAmiMt tlw
I liierewith r And he said lie had. lhi*»t«t
substance of Mr. Porter's evidi uce ; where!
you may perceive what tbe meetings *»ere ^
what resotulions were there taking, and wf
waaithe issue and effect of them.
The next witne*iK is rapl^iin Blair; and I
evidence giHJs to the other part, that is, to
John Freiud's having a conmnssion trom I
late king James, uiiil engairing him and
lo be in his regiment, vi liereof sir J ohn waa
de colonel, and the providing of otHcers* Jy
' for that the evidence siUndf^ ms t
Captain Bt^iriellMye, ih«l about two orthi
Jr'ejsrs ago, be was with sir Joht« Freind at I
odi^ings in 8nri*ey -street, and there be il
Sirnduce a commisKiun tbut be had from ku
Fames to be colonel of n regiment of bora
be was to raise it himself, and w;ls to apj>oi
Htid provide what officer he thi»UL;ht lit. I
says, he read tbeciminiitision, and it was sigl
ed at the top James Hex, and countersigned |
tbe bottom ilellbrt ; this he is posiiif e in ;
lurtber, that sir Jofm Freind did pmnnse
he should be lieutenant colonel ot this regitii
and aUo tlint cootain Blair viould get as ci
men as he could ; and that there wore
officers that were appoinieil in that ri
and particularly one Fisher was brought
!;ir John Freind by captain Blair, to be
first oaptatu^ aiul one colonel Slater, wiio.i
IhnBiiiotlier
for High Treason.
I b imroitr with sir John Freind, wss, ta
er Ueuieoant- colonel ; fori t^id
mmAt I liafe » luiml to bini to be
■nl-CiiUine), and though you are m
Irt is no i natter if we ha%e two in this
t; at wliicli Blair look ?ery great of-
md expresaad as much io sir John
I; wliereu|)Oti sir Johu Freind iM Uim^
1 Dot be 9iH hut said he would make
provitioa for Mr. 8later ; that he
I be It ca{itiiia of im independent tniopt
boutd be composed of noo -swearing pai-
, and tb«t frhall satisfy him.
And sir Jotiii Frfiiid 4id intrust caplain
lair Kith the {vrov.thng of men, and managing
f lbein« And cav'tuiu Bbir tells'you, he was
iA|^f«ai de^l fd cUiirge, and bid out direrse
imt» cure»« theui, and keep Ihein together ;
li imiimifr inotiey (o procped in that aOair,
ICMOM Io lir John Fi find» and tuade great
iliAi ii{' ivBUied money to carry nu
^in^ the men to kwp Io*
<j |>ress**d wr .John Fi'^ind
tolMMrii turn %viih mme money; says lir
Ml, There is lUO/. due Io me, beeau>^' i kid
b«B loot lo tun he? the escape of colonel
Fiji^otk lias receif cil it, and hail
i to pity It me, but I cannot yet ^et it,
11 bave Wl' «»ut of that iOOi. it you
unlit. WeU, buthow ia that 20L to be
m^f It acems there was one HamKoa or
tkmam^ prmt^ who had some inter^t to
. and he was to htJp hun to it ;
tUt* 20L was aetuatly paid the
of June or ibe beginning ot Jvily
ttO/. be swedirs he did receive npou
bv the direction of s^ir irdiu
•a employed af you have been
BJair had occasion for more
t was Home time after I^liehat4niAJ
wuh lo be emjilityed as the t-umier
nI hf was verv tiupurtunate to ohtiuii it
r Jono Freind: at Uutj^ih he did obtain it,
> you, and the manner how. He pro-
iltfttW under sir Jolin Freind'sown haiid^
Hjimiit Io be MO ati^wei' to a tetter thut
, Blair bad «»eui ui turn betore, he thiuku
IJ^bebta own hand, lor he in accjuainttd with
!■ baud- writing. B<it that is nat all to
intf it hi% band I lor the eoiuents of the letter
it IMnarkable, which are about the payiueul
iwrnomy U* BKttr : The ktler bears dale on a
racdU^ mcirumgfi aud is directed to captain
Unr; and a porter hroug^ht it, as he tlnnks^
I bai buuse; and ihetaby it waa ai»p<itoled
bailiiax abould meet on Thursday next a! Jo-
■lbia*a coffee- bouse about the hoor «d tnelf e.
M a0eonliii|fly captain Btair came U\ Ju-
ItfdHa*^ eutfee^bou^e, where be aecoidiistrly
Mbaiitliair ioba Freind, aad there waa Har-
iMVlbe priest^ audPigi^ott, and (here he does
latiiv^ a ftiin t»f monuy upon the same uccouni :
bllMi iKiw ibe proi^t of tiii^ leitar doei^ not
k barely u|m»q the knowledge of the band,
cOQbaiiS of It ; and the subsequent
tiae aud place ateatiooed in
A.D. 1690.
[58
ibe letter, is a great evidence that it was tir
JoJin Freind'a band writing', and more monej
is proved to be actually paid in I he presence
of sir John Fretnd, which h the most ma-
terial part of the evidence. And you are told
further, that as sir John Freind and captain
Blair were g^^ing together in a coach, from
Jotiaf ban's coflfec- house to 8l. MartiLi's-te-
grand, there was a discourse betwet-n them :
and sir John Freind said, For his part he would
not stir till auch lime as tlie Toulon fleet waa
come about, and joined with the Brest fleet.
That he did think he waa in dan^^er of being
apprehended wlieo it came about, and therefore
captiiiu Blair was tosculk tdl then, a&he himself
lold him he would do^ but yet be should get
what men he could. Aud this is a great ar-
gument of Uh he'inft concerned in the iniended
invAiiion, and that hi si making prL'paration for
hijs reuim' 01 bad relsvlioii lo the French tuva-
sion which was ex|H>cted.
It seemp, two ye;irs ai(o, there being- a great
intimacy between Blair and m* John Freind
as appears by all the evidence. Blair waa ac*
quaiint&il with this desij^n. For you are fold
of the letter that was writ by him to king
JameSf which he shewed lo captaiu Blair, >md
it wan ccmceming bis reg'icneut; he say», ihnt
sir John Freind owned he writ ibal letter him-
scll'« that Bhir did read the letter, and finding
it sfi well penned, he said that he thou^^ht Fer-
guson had a hand in it, at which, air John
I Freind w as angry ; but tllair says, the letter
was coijcenilng the* re|fiment of which sir Jobu
Frt-Jiid w&n colonel.
Tlinn, tjemlemcfi, you liave Bertbam called
to prove^ that Bluir did tell him, that he was
lo be hi."* lieutenant colonel, which was long
beltire there were any thoughts of any disco-
very of Ibis iutendeil invasion, and hetore the
dit^overy 'd' the plot of assassiiitttion, which
&ir John Freind <tid own he had some know-
ledge of, hot he disliked it» aud said it would
ruin king Jameses aflbirs. 8o that, gentlemen,
1 think thiii h the mim and substance of the
evidence that baa been given upon this occa<
sion against nir John Freind, to iiiddce you to
|jelii_'V€' him U» be gudiy of tkils crime witb
which lie now stands charge d.
But uow ^ou are to consifler what sir John
Friend aays on hehaif of hunscif In the
tirsi place, be makes an obje<Liion against ihe
cvedit of all these witneHsen, that ihcy are not
to be believed, bi?cause, says be^ Uiey are known
or reputed to he lloman t'atbolics and Papists,
and their consciences and their oaths are large,
eiipeciiilly wbeo they think they can do an in-
jury to any Protestant ; and therefore they
arc pot to be allowed a^ witnesses, at least
their credit Ls not sufficient to induce a jury
to believe them. At first indeed, he urged
there was a statute and u law that did disable
them from being w itnesses i but J must tell
you there is no such slalttle, nar indeed is tbeir
being PApiats any dimiuution at all to tbe Cf«-
dit c7 tbeir testimony : (For Papists are legal
witaeMeSi aad IbougU there wee «tti4^t« W>aa U>
59] 8 WILUAM lU.
pvniih tbcm for thtir wn-cookftmiij m the ,
roorrii of EaglaBd, and for other their IVipah
pnctios ; ycc 1 kaov of w> law that readcn
F^ ¥o« are I6 cocsider Pm^om are ChrirtiaBB,
r hj the noae oraa^rehrti that IVo-
K«io; and aa for that supfoait>M. that
ihov look opoa Prptiitana aa Heretics, and
yadhffwuina &r aaj oaifas that the j
L them ; you are to coMier, as It
hm Terr weA'ehserreii by the Hag's
cottDJol, that ^ey are Defer lilce*io okaia aaf
dhyeiiiiitinn or parcSoo. if they iboiJd Amvear :
«ht«uel«es to Meat the dedlps of the B9pah
faity ; aad tlMTctore it b a very iaeoasii&erabie
•hfcvtiea, a»«i in lav case haih'no «e'^t.
But liiea ue doei isscat open is, that ca{)taiD
BSasr &» so: u be teiMf^ ; aa*! there are two
ohtetUMi^ he gtokes against him. Fkrst, that
he j^ deoy that he knew aay ihioir of the ploc
For Biair'beia^ npca thia*
friaaaer «> the Cue-hovae, aai aAerwanlsv
^paa a liisuwuse of oook news m the flriac-
whoeiD it was menfawieU that captab
hid cfium.ll all. «»i ataie a Mi di>-
aaJ thereupon he 4waU ot. he was
t of the piM. awl knew toidw; of iL
Yob. feaarwea, or to esaoder the weight of
^hai uOyecco^ Fim. sa^vmr he had nai so.
ii toiiCtH be. he vaa bm wiLac <» be «^s not
obhtred to owm ic. and vooU w< cimaesa ii u
that dtocukito thoKe DersBOS. Ik «as boc
hia iaceresc aaii Tnalersce to be too opea ; asJ
•hezefrjcf ii 'i'sesairc fxiifv. 6ct ^lecause a baq
«oa.«£ QfK STTLsc tjc-frs t*^ bs cJOAfSKea. bat
deaiKii ajs> £:o«ie<i^ qix p^*:: vjmo -jHfre vw !io
orm&'.a f*:-r •.•n r> ow^ it. s^itf 3ow li^; *wexr^
it pcRU'Vtf.ji. :-<r«ftH>r he iixou.a swear Tii»*i\r.
Cir toe «Li<:ioL::p:a .-r CiZiirse/. aa*i iji te»-
Bxai>«iy. cjtf ajcn u* oiiiix -jei-idrw*: :> ^«u.
that 3< on a<K &1V &^ K3ew 9'^ j^v :iif Hc c:'
the 3i':c. a*ic ;.'i Ccn liiv eoa«:er^ t. jc ajiuw-
fe mii-2 «r J.. .-a r .-ein*! j* u-jifX. i* »»c:^c
heM%' 1 j*^ ui t::^* •ft:si;£neo as8a>t>uM&*'j. set
of a aeii;ri w-.^^ »Mve >i 'topuiM '^tf a:q£. joti
MRurs kiA^f Jauies.
Ften » ai L3tf -jcier ancasr :ii3C wjo o^^
Siac i« •'n.Jd u» 'ijocaua Bsair^ ciukiiiwr. aoti
mrk 3.ir:!-f t i.;* >nac a* Se a warh?** jc
H.ini:< s-ixi ue i".n ton*, lai said. 1 x^i God
lirrff:? - -m ; uii j« ny* w v^. lil*:!! prmmc
nut z ^T-fci api^-c 3i» csBiciHaL-v. iizd le
■am ' «i K ji v^ry JTvv crjOMe a^oi£C ic,
aoit i^ici -9 jQiTCj. L>ic ]u« vjyiin Biair
OAonasaL ^isiii^ esLinixt^i i?mc lii.-« cocft. >bws
tirs '- soMiioe'y. nui za.>r- m «Hr «.m am lay
WM.v': ma^ ij zijz t w .* n^ 't bis ova>
■r.cace H<f iay^ ixac .4«i^«avy ^ j< n to am
-•- ]}iiiL. Jai J< ■«■ w io-ftre
>:i:::^ li baev bi^toanx K«e
le i^ite nriMiMao to ne
if iwean; toiKto*
vuh; ami Hr.
7ns/ //Sir JcJfai Jrend;
Beside*, geotlenBea, yoa aretoi
probabiLty of that which Mr. Courtney a
When m aiaa is to be m witneaa the next
npcto a bill of indjcfent bdbre a prand.
that he should be so itoiiscieeC* as to lej
bad J he was goin^ to swear against hia
^cie^l^e. b stnc^ aad very iiaafowiw
Yo« are thciefoie to rniiiirtiFr of this ^
matter, what evidence ca^icziB Blair has g
aad the iapait of ii, aad the wci^ asi
dtoility of that evidence which is pvea 9§
Then air John Freind
aaatier : Says he, I am a
nat GkelT that I tbntama
an 9V7->^if !u «ur'j<'
af ir.nd a.« iBinCi^
fas ml
lor tbnt he hoa called e%ht
TontherhBre'
ftefBeatly taumatd with him.
he was ever piipaihly i
they have been fn^iBitfti ia'h&i com
sinee the Revc'miBB, sBd they never kar^
ataar tiaaeheulbuUBd Bfon the ^ooeimi
■ay. 1 thiak one mid. thai once he did ro
a man libr taOuac — liimiily at the pi
meat ; that he »ed CMSCutf y to ^o to c^
t\Mr or lire yean ago ^thoogh there is i
coont Of that anee • Aad partienJaitv
ii sne Mr. Laipam that was hm rhiplim
hetefla yeo bewaoia biaboiHe: aodlfat
rend the* cvoimoa- prayer in the tsmily
the Rrroiu&oo. atai prayei tor the kiae- to
!iice ^oeen. aaJ nr Joda Frcuad w^f eiftm
seac as the pnycrk. aad ponicTikLriy whi
prayed tjr tse {rmeiit kaac. aa-l the
(^i:«<Ki : bet ce sajs he ^uxnaisit' hx» be^ ]
th^fn.v S7e i«ars».'aAi b-to jcen iioae confo
wi;:> 2ini HM.
Tcere 2f aobUier w'.tiesa toils yoo. he
betnx ^ >.r J-*Qn Fcvisd'y ctiiiig>*a« iL-versB
m-3it7*ji ih* 3eii<vc4W 3e a FtniceaciBa ol
chc-v^i vf Eii^asa. asti ham aad a diie
CMjicvru.u^ u« Trvseoc x^veraowat : am
siT Jjit3 fc'mod «Lti. iiA.li liiiM^ra be coal
a.<e 3e MiOd^ iu«i :3c kov cuoiiirai to thi
v^rninefu. y^ be * is -e^ t*«*l '.o hve ^
aacer :c ; ia<i w<*4 ii jcc tuiruce .a aay bb
oc pri*c pV be ijtjc onccifaM a m ^ \he
«iM«iia JHl Site iB i!M 'HhiCtj*.
Tbj« » ne turn *aa MObCUKv rf the
deace la buch ^niies : aon voo. ;fvaik
jrv ir» cvaaMiier to* • i\zn£ 'ti txs port «
defeiice tLt?. votftaer is je a 4u&*:eut as
to L-ie ev.ueo.-tf scivm j|^imsi« i.iU, aat
wai(rSc «n:iia^ ai jtifr-aoi-anof wniU the
3KtfM» Sir wi« JL:*?^ 3a*;; $«'Mn ' F<K a«£b
be TO a ftV^esfciiic ^«fc :c » Ti-oin be h
i^nnL: o^tibc a> tr^ ^j«mm<a& : jnd rtiec
wvu;d auc Kike ;3e 4«U2o : aoii ci^Mi^ bi
preMrac » the coujomo ?ra%«r.^ w^a the
jo«i iiiarvo- were pra^tAi air. y<t wbetto
90iD*4 a tiawo iirat«r» to niry aac-e
^fVmran! a <nraB 3nm« . wno see nuc «cr^
adevaeil to the prmoac*^o«e
ba a lars
>1
for High Tii
JL D. 1696*
^if j<ii nti)«r liny ITS for the present ^o-
\ pMWM Ar t-rt : \uh nmnrU iic:' lluit fscru^ile^
tttt^af that too;
^0 wkmh i; tt Pro-
MWrifti (ie in
• linkii re he
tmm If ttal Ltnd »botitii ditcrmUt these Yvit-
»MMsM fiifi' iMUfii bp hti8 bct-n j$o much
r«BMJ In ft Ptot. y<m ttrtr to CfJUHitler ; atid
CWfHV '' -nil uAturc of the ovi-
iiMli \ ih« other, it must lie
lM#jMr «M[MrT|iM .11111(1.
Ha the? ti Aiifiher thing that he <hd in-
fti ipB, Ufd that tti maittir iif law. Tht^
MMi^ tif IMli ¥J, 3, was read, which is
^paimiatf %hm\ trc£i«cms ; und that does
■ liTRstfiecieM of ireitfiOii, and declares
M W tms4»ti. One treason is the
ami ioiaginint^ tlte de&^b of the
il thr leryinjf of war : Now,
iW«f it no war aclonlly levied ; and a
K-y or tlf&jgn to Wvy war does not
lilt la»» aijainst trenson. No^v
mmi I**!! you, if there be only a
wsr, it is not treo^n : bcil
^lirf«i»f»irory he either to kill the
ihinu or iitifjriftou him, or put
upon him, and the way
^aff^fCtiDg of these, is by levy*
^^t tficT^ the coii*?oltation, and the
, , ^ Ir? J a **ar for that purpose, ia
Ifl^lniidct, ihouuh no war be levied : For
■^QBultufnn Nud cou!<piracy is an o?ert-
tapmit^ t\^ lompiii^ing^ the death of tlie
^*»W4«ih«< firm treH-suo meittiiiuod in
^mmnl tiic S5ih of Ed, 3. For the
J^^'AsttaUiic are ; • That if any man
f^,^^f^ *^^ imagine the death of the
fy-' . «w» bmuii<' H UMU ilesijfUR the death,
^^^^ *■ drjtructioii of the kinff, and to
J"^fu» •§fr«o and consults to levy war^
not be high 'treason, if a war
liyWvbd, 1*1 u very str&tige doctrine,
- ^ haa aiwiiys Iteeti iield to he
TWnnwiy be a wwr levied without any
Lti.tr'* ofrson^ or endan^ritig
U'vicil is high-trea-
;; f} levy war, with-
rson* Aji for exain-
J I hie themselves, and
o to unine bw, which
and hope thereby to
Icvyiuff a war *and
>^ and d(*«ii|^ning it is
iM>rii iiiij eiideavfjor tti great
*lli«QK iHlk focce lo pull down all in*
l» tXpel atrmngers, to pull down
|r*^****i !■ Inrytiigvf wnr, and treason:
l^t purpgtHDjS aod de^iq^iiinrr to raise
It imttt Utr tiseb » ptirpoisc, tk not trem-
St^tm feffttrr Edition. As to th is, wne
isCIVMir ^rt>ih\i t rihd olln t, if:^ jJiis
ruurn III
numbera with fi>rce to inake^oine reforraation of
their own heads, without pursuing the methods
of til* law, that is a levying: of war, and trea-
son, but the purposing and designing it is not ao.
But if there be, oi* I told yoti, » purpose and
dei«i!{n (o (leittroy the kioj^, and to depose hiui
from his throne, or to restrain hitn, or hava
ixny power over him, which is proposied or de-
signed lo be effected by war tliat is to be levied,
sneh a coD»pirar\ and eonRuhatioir to levy
war, for the bringing this to pa^, is an overt-
act of high -treason. So that, fTPotleQien, a<
to ihai objection, that he makes in point of
law, it is of no force, if there be evidence suf-
(icietitto convince you, that he did conspire to
levy war for such an end.*
Gentlemen, the evidence you hsvo heard
what it is, you may consider the weight of it,
iind the eireumstances that do attend it ; and
likewise the answers that have been given by
the prisoner to invalidate that evidence, and to
prove the improbahi!itj of what they have tes-
tified against him. You have heard, I say,
the evidence on the one side^ and on the other ;
If you are not satisfied, that what the witnesset
have sworn is true, that sir John Freind did
engage in such a detii^n for such a purpose,
then you are to acquit him ; but on the other
side, if you believe that sir Joint Freiud is
guilty of what the witnesses have deposed
against him, then you are to find him Guilty.
Juryman^ My hinl, we desire we may have
that letter with ns that was produced here.
L C, J, No, 00, you cannot have it by law*
Juryrrtan, Alay it not be \ci\ with the Ibre-
inan, my lord ?
L. C. J. No I btit you may look ytmn it in
court before you go away, if you wilL
Then the Lctier was handed to the Jury,
and one of them banded it to the prisoner.
L. C^ J. ^by do you do so? Yon should
not give the prisoner the latter*
Jurytnan, It was done to see whether it was
ht« hand ; and we desire, if there be any Inidy
here that knows his hand writing, or that
saw him write it, inav he prtiduced.
L. C, J, Why ? iJiil not be own the letter
to the witness atteruants? It was &wom to you
he did ; and that he met according to the ap-
pointment in ttie letter, and thai money was
paid.
Then the Jury withdrew to conBidei of their
I
* As to this matter^ see East*i: t^leas of the
Crown, chap. «, sect. 9, and the Stat. :i6 G. 3,
c, 7, i. 36, The doctrine of ro untrue tive Trea-
son is much agitated in numerous cases in thi«
Work. 8ee, in particular, the Case of lord
Russell, vol. 9, p. 577, and the discussions to
which it gave rise, voL 9, p. 605^ et teq. i the
Case of lord George Gordon, k.D, 1780, and
those of Hardy and liorne Tooke, a. Dr 1704.
See» also, Mr, Luders^s Co odd c rations on thf
Law of High TrMson ^ the articU of Levying
War*
swnjUAMm.
Mr.CUrk. Here {Mud m id a ike T9A
ymtrfef4ttt?'-~Jufy, Yes,
CLifArr. WIm» OmQ Mj fcr jMi ?
Jarfjf, ihir fmrtrnm.
a. t^Arr. ¥k iolm Fmid, Md m A j
hMi, (wlndb Im my Look apoB llw piv
•ODcr ; bow «iy ye, w Im Ctaihjr of ilw kifli-
tMMon wb«roof be ttoadf biftrttd, or flol
ChifHy f— Fot^mmh. Guilty, wy lord.
CL if Art. Wbol foo£ or aMttd
«r tciMflM!ffit« hul be 01 Ibr tiae of the bigfe-
irtawo comoistted, or al aov tisM noef
IbrMMn. None, tooor kaoirlcdge.
X. C X Jaikir, look to bhn, bo it I
0vil^ of bi(|[fa-tretflM*
CCofArr, Tbeo bearken to your venKcf
m the oourl bae reeorded h. Yoo aay thai «r
Ci.tfArr. Crycr^i
Cfjprr. Oyex, oycx* eyes'! Aft bmoi
noM tbat bof e ai^ dnajf BHiir 10 do, )
idTerariacr, balde* ler ibe city of Lei
awlGool-detiveryofNcwiiatp. bnlim Ji
dtj of Lnmim md ceaaty of M iddlcoes,
for tbie tiaie, aod ^re tbc
fCfCB o^cbck ; aad God Mve tbeKin^.
TbcD tbe prvoaer was carried back to
gale, aad «rai breugfat tbe aeit day to t^
to oiirr what be bad to eay tor ttay of
; aad afleiaaida leoeived eeatei
aaatraUor.
385. Tbe Trial of Sir William Pabktns, knt at the Old-Ba
for High Treason: 8 William IIL a.d. 1696.*
Then tbe Jory that were retoroed in th
nel were all called orer, aod the appem
of thoae who aaswered to the call we
corded.
Aboat ten of the clock tbe Judges, (ti
tbe Lord Chief Jnetice Holt, the Lord
Justice Treby, and Mr. Justice Rokeby,
into the court.
Tuaday, March 24, 1696.
ThM day the Trial of Sir WUltam IHtfkypa,
knt. came on at the Sessions- House,- Old*
Bailey, fnr II iaii -Treason.
CL of the Ar. Cryer, make Proclamation.
Crygr, O ves, O yes, O ytM. All manner
•f porsoni that hare any thing more to du at
tilils general sessions of the peace, sess^ns of
Oyer and I'erminer, holden for the City of
London ; and Gaol -delirery of Newgate holden
Ibr the City of liondon and county of Middle-
■ex, and were adjourned orer to this day, draw
near, aod gire your attendance, tor now they
will preeeed to tbe Pleas of the Crown for the
eetM oHy and county : and God sa?e tbe
King.
C7. fifAr. Middlesex. Cryer, make pro-
datnation.
Crver. O yes, You good men of the county
of Middlesex, summou<Hl to appear here this
day, to try between our sorereign Lord the
kkig, and tbe prisoner that shall be at the bar,
tnswor to your names as you shall be called,
^try man at the fint call, upon pain and peril
shallfbll tberetipon.
^ ■ ' ■' ■ ' ■
* See Kaat's Pleas of the Crown, chap. 9,
■eot. 8, 9, and tbe autborities there cited. 8i*e
toOi in this Collectioii, tlie cases of sir Henry
fane, vol. 6, p. 1 10» of Messenger and otiiers,
t«lO» p. aro { of Wbitobread and othera, vol. 7,
1^. till of bummmm and otbai»»A. p. ITIO,
Mdof l>oiooii,a.D« UiC.
CL cfAr. Set ab William Phrkrns
bar. r Which was done.) Sir Wittiam
kyns, hold up thy hand.
Parkynt. My lord, if you please, I h
beg tbe favour of one word hefore I a
raigned. My wife cominsr to see me
distress, sent up a trunk of lioen for oi
and the sheriflTs of London hare seized
do detain it. It has linen in it, and all I
oessary things, and all things havo bee
from me, since I was appre4ieuded, but ^
there; I have nothing to siihsitt upon bu
is there ; for no money can I get from anj
nobody will pay us afarthiiig.
Mr. Sheriff iBuckingham. My lord, w
sent for to Mr. Secretory Trumball's
and when we came there, there was f
that had been seized, as belonging to s
liam Parkyns ; and when we came th
was opened, and there was in it some he
linen, end some plate, and Mr. Sei
Trumball waa ideased, afler having se
the trunk, to seal it up, and deliver it
brother and me, to be xopt ; and this is
know of it.
JiifT High TriUMftu
Wbere wts ibis trunk
W« fouM if iu the secre-
' It mmm ilelivfivfl to UiS tliere,
^e « rerr«^ fof it to \mit^ it duwti
I rm^led ^ir i y^ cfid not \kt\£Ai it.
lx>ok ye, Mr WiKtam Purkyns,
wmm urisrtl, I fiii|ip<Hft?i in order to
. Vcs, I Mieve (t was ; but I hope
Ktliiverie«t back now they have fWuiitf
'I li«Ye uQtUing eljw to iub'
%% tb^re.
r may plate tliereT What is
Tlicsre fs aorne clia|vrr and ,
pH atid some piccw of
bnndrvfl otim'^s of [sWlc^ for
» bAd it from the Secretary's ^
f iKd not Md^ it,
mlgei cofititlted tmoog them-
Tte atifcHl 10 bare hi« plate ta sell,
Bk iKat he may have bread.
iill yrmr lanhbip |ilett8e to direct
IHrisritback?
tHk^^otme care or other shall be
k My lorlf t bave nothin|^ to sitb«ist
mm I cfto niJ^ke something of wlinl is
ppv m wile and fourcbildreo, and no-
i IfpOD.
[ yiwir wife make application for
ar^'s. It cannot now bu done
fit I not Miiiki; complaint of it
1 bei'n Utken in it.
1 c Has a petiiiun ;
; a K\i»^e. pris'iner, anil thry
I Iff a* a pi4itioii ; but fny wife
any thinK of it to me till af-
llbiH^ talk'd nf an order of coun*
had for the ibnifTs i$4ri/in|^ it ;
be ui euoitirr! into it, there waa
hi, butoaly to aaareb and exa-
rdl, tome order shall be taken
fi^noi. My h^nlf we tiaTe given a
»1baftiQf«c»ry for it.
ba %un»x hare wherewithnl to
ly btm bread while he \% in
, lord, I »w?€ Mr Bnr-
sr John Frriiid'« fcoli-
uld buuiidy move your lordiiitip
Ir kii|mrc*l tfito, Imhv hn cnine J»y
fallbt|ttry vr Forii»e*iu»i
I a«i a« it H C11 tiie j»ri-
Mnorl
. hi** I Ibink then can ba no
)i ■ * * ' •' ': it wotdd be
ilia > 'itineiL
U* in. [\Vlu<^h
' r.* \ I he jidtinel
IJrJ.-.-.- --.^.i:*
I tiail tlirte fcraral co-
nie«tent me hj sir John Freind'sfnemU, to the
Hon* tavi'in alMjoi ihree or four o'clock, and
I dt^livered one of ibeni to Kir John Freind ;
but he had one before I deliyeretl mioe.
L. C. J. Who sent thera to you, or brought
I hem to you ?
Bnrki^k. I had them brought to me by u
porter,
Mr. Bakcr^ You know yon might have had
it from the pro|frer othcer, for asking'.
Burl, I had iliem brought me from S5p
John Freiud's friends.
L, C. J. Can you tell who had it from th#'
aherifT.*
BtirL My lord; I know uot: I had threo'
ctvpies sent me in a quarter of an hour's time ;
whence they came, I know not * the sheriff \
know8 ine, and e^^ery body else.
Sh. Buck. I do know you, and would havar
you be fair in your praciire.
Bukcj\ The inquiry ia made, because m*
false copy is put ujion him ; you might hav#
had a true copy it you had apphed yourself J
right.
BurL I sent to Mr. Farriogdon f»>r it
L. C\ J. The sheriff dc'livered it the se-
conitaryi who Uthe proper officer.
Just. Hokebf/. Sir John Freind said he had
it from him yesterday »
BurL But lie had one before ; bow he
came by it, I can't tell ; nor whence those
came that were brought me in.
Just, Rokebtf. If you will not take care t»
go to the rijzhV place, it is nobody's fault bui
your own, it you suffer by it.
BtirL I \\as with my lady, and delivered
a petition for \\m trunk.
L. C X But it seems it was under th«
cunifzance of the secretary, and direciion was
vfivt?n 10 go thither : some care or other rau^t
bt? taken in it, and shall \ but go on now to ar-
ruigu the prisoner.
CL of Art. Hold up thy Imud. (Which be
did.) Thou standest indicted in Middlesex by
the name of sir Wihiom pjrk^^ns, late of the
I>arish of Hi. Paid C oven t Garden, in the
county of 1\ lid dtejsex, kt. For that. Whereas
an open, nod fHilonouMy pnblic and most sbur[i
and cruel m nr, for a long tunc h»th bet^n, nndyet
is, Sy Eieaund by land, Itjid, carried on, and pro-
secuted by Le^is the Ficnch ting, against th4
most senrne, must tltustrtous, aotl most excel*
lent pruioe, our sovereign lord U'ilhain the 3dg
by the grace of God, «if Eagland, Scollnnd,
trance, and lrc^laml« king, defender of lh<l* i
f^dth, 'Sec. During all t^hich titne, the said*]
Ijcwis tti^ French king and his suhjecls wer«,
and yet are efsi'mies of oi*f said lord the kinff^ ]
that now i;*, and his subject*, Y^n ihe said sir
William i*iirkyn3, a •lubjt'Ci nf our said sove-
n ! ' TJie king thsit now is of this kingdom
< ' well ktiowiug the premises, not,
1*1...,,; luri fear «J Uod in your heart, nor'
\«'* igbiusr the iluty of v^nr alh'ginnre, hoi
bMiig mot*«d and K»<luce<f by the iuKtigation of-
\hr tlevil, •• a taN traitor against the aa)4
67J
6 WILLIAM m.
Trial of Sir WJHam Parfynt,
P
iDOsi ferene, uiost clement, and most cxoenent
prince, our said soverei^ lord William the Sd,
ttow Wio^ of En^rland, &c. your supreme, true,
Datural, ri((htful, lawful, and undoubted sove-
reign lonl ; the cordial love, and true and due
obedience, fidelity and allegiance, v^bich every
■ubject iif our Mid lord the kin<c that now is,
towaniii him our said lord the kin^, should
bear, and of right ought to bear, nithdrawin^,
and utterly to extiuj^uisb, intending and con-
triving, and with all your strength purposing,
designing and endeavouring the goremment of
this Kingdom of EoKfland, imder him otnr said
lonl the king that n^w i<t, of right, duly, hap-
pihr and very well estiildished, altogether to
subvert, change, a 11 '1 alter; as also the same
oar sovereign lord the kitig ta death and final
destruction to put and bring ; and his faithful
auhjects, and tlie freemen of this kingdom of
England, into intolerable and most miserable
slavery, to tlie aforesnid French king, to sub-
due ami bring; the first day of July, in the
7th vear ot the rei^n of our said sorereign lord
the king that now is, und divers other days and
tiroes, as ueil before as after, at (he parish of
Sl 1^u2 Co\ent-Gardon aforesaid, in the
county atmesaid, i'alsely, maliciously, de-
vilisluy and traitorously did compass, imagine,
contrive, purpoije, design and intend our said
aovcreign lord the king that now is, then your
supreme, true, natural, rightful, and lawful
soTereign lord, of and from the regal state,
title, honour, power, crown, eommand, and
fl^ovenimcnt of this kingdom of £nghind, to
depose, cast down, and utterly to deprive;
apd the same our sovereign lord the king, to
kill, slay, and murder ; and tlie aforesaid Lewis
the French kincf, by his armies, soldiers,
legions, and subjects, this kingdom of Eng-
land to invade, fight with, conquer, and sub-
due, to move, stir up, procure and aid ; and a
miserable sluufj^hter among the faithful sub-
jects of our baid lord the king, throughout all
this whole kingdom of England, to liiake and
cause; and that ^ou the said sir William
Tarkyns, to the aforesaid enemies of our said
lonl the king that now is, then and there, dur-
ing the war aforesaid, traitorously were ad-
hering and aiding ; and the same most abo-
minable, wicked and devilish treasons, and
traiterous com passings, contrivances, inten-
tions, and pur)Kme8 of'yours aforesaid, to fulfil,
perfect and bring to effect ; and in prosecution,
performance, and execution of the traiterous
adhesion aforesaid, ^ou the said sir William
Parky ns, as such a iaise traitor, during the war
aforesaid, to wit, the same 1st day of June, in
the year abovesaid, at the parish aforesaid, in
the county aforesaid, and divers othar days
and times, as well Ittfore as afler, there and
elsewhere in tin* same count}', falsely, ma-
liciously, advisedly, secretly, and traiteroufily,
and with force and arms, witli one llobert
Chamock, (late of High-Treason, in contriving
and conspiring the death of our said sovereign
Isrd the king tliat now is, duly con? icted and
fttaiatcd} and with divpM othtr fiise Imitors,
to the jurors unknown did meet, propose, tra
consult, consent, and agree, to jirocurBf frn
the aforesaid Licwis the French king, of his sal
jects, forces, and soldiers, then andyetenemi
of our said lord the king that now is, great bh
hers of soldiers and armed men, this kingda
of England to invade ami fight with, and tolsr
procure and prepare great numbers of ami
men and troops, and legions against our m
soFereign lord the king that now is, to rise i
and be formed ; and with those enemies stai
upon such f heir invasion and entrance into tl
kingdom of England, to join and unite ; n
belhon and war against him our said soveici|
lord the king, within this kingdom of Englaa
to make, levy, and trage ; and the same oi
sovereign k)ril the king so as aforesaid to 4
pose, and him to kill and murder. And fli
ther, with the said false traitors, the same ii
day of July, in the year almvesaid, at the poril
aforesaid, in tlie county aforesaid, traitorsoil
you did consult, consent, and agree to wm
the aforesaid Robert Chamock as a bm
senger from you the said sir Wm. Parkyi
and the same other traitors unknown, as fl
as, and into the kingdom of France, in vm
beyond the seas, to James the 3d, late n
of England, to pnipose to him, and deal
of him to obtain of the aforesaid French Unj
the soldiers and armetl men aforesaid, lor tl
invasion aforesaid to be made ; and intelligaM
and notice of such their trait«>rons intentiM
and adhesions, and all the premises to thoM
late king James, ami the said other encmil
and their adherents, to give and exhibit ; tl
them to inform of the said things, partiealsii
and circumstances thereunto relating ; as ak
intelligence from them of the late intended a
vasion, and other thingfs and circumstaiM
concerning the premises to receive, and tha
to you the said sir William Parkyns, and tl
said ether traitors in this kingdom of Engfaui
to signify, report and declare, in assistsM
animation, and aid of the said enenuea of oi
said soTereign lord the king that now is, in tl
wtLT aforesaid : and to stir up and procure tha
enemies the more readily and boldly this kioj
dom of England to invade, the treasons m
traitorous contrivances, compassings, imugis
tions and purposes of you the said sir Willn
Parkyns aforesaid to perfect and fulfil, and i
the premises the sooner to execute, nnana|
and perform, and the invasion aforesaid to m
der and make the more easv, you the said i
William Parkyns afterwards, to wit, the IQ
day of February, in the year abovesaid, at II
parish aforesaid, in the county aforesaid, ai
divers other days and tiroes, as well beA
as afler, I'thcre and elsewhere in the soi
county, falsely, maliciously , advisedly, secret!
traitorouslv and with force and arms, with I
aforesaid Kobcrt Charnock, and very mai
other false traitors to the jurors unknowDi 4
meet, propose, treat, consult, consent ai
agree, him our aaid sovereign lord the kinjp tl
now is, by lying in wait and deceit, to aawH
nate, kill and mttrder; and that eieorahi
High Trm$fm*
iHmiMe n^itssi nation and
Ufaf Ibe mmatwf to ejiceute ami (lerpetrate,
^iitmmpis ^ wtU ti»e same day anil year,
^ivtt^tfiiftHMly y«u ilul trfal, propose and
■■■ll ifftit) tlMJ«« trnititii^t af the wiys,
an<4 n^Mkns, nml ihe time antJ place
*\r s, iitid l»ovv our said
1 Kit hy iyii*!? in wait,
I l^mmfr (it^^lit **^ S nUtii ; nnd (tid
9mim. ixivr st>it n^ ' i ic i^me tmiton,
Ikl WTi (wkrucnieu or ittt i<»:ibouts of thu»e
taan^ Mil wtliera by iIk'HI at»d ycni the 6aid
irffii^iai PaH&yn* tti Ih; liiiifd, pioctired and
I |yt*^fEVl*^ carlnrtrH arid ptstoH with i^rim-
1ir Mill leadt'U-bulli'U cbai^^ed, and i^'ith
ill rap<irr« and 4i(her weapons armed,
ii W ta w^it and hv in amhufili our sajd
[M lii» klu^ it) litt coach i'einf^ when he
'\go 3Air«Kif], lo attack ; and iUiiX <i certniu
ttttCHMpetifit nituil^er ofthii^ men so armed,
llaiMtel iipoo the gu^nb id' our ^id k>rd the
lii|lWp miMl there atten>l»tit>: hiin, and hein^
«A hiSr mmI fthftiild orer>iM»wer aud fight
li#i«Bf wblkt tttbf'rs ot' the same men »o
tmaihm iKir 9<yd lord tl»e king fihindd kilt,
^if»Mrf Mittfvi«r ; and that you the staid sir
VV^ntt Pif%5rik«, then and there did take
^m ymt to fnxiride five hoiies for thos4>
AM ^bigli aboulfl to kdl and imirdar i»ur
■ii WitKi^ii i'*^'' •'^^'Uiiig; andalaa that
jBitW a*iil »: Farkyni, your tre«-
mm^ mimH ytj i as intentioitt, desifnia
I aiiorewaid ti»eiefute, peqwtrate,
wit| the
^^afinh afore-
t camaty aforesaid, divera burses^ aud
W^ mmtf antta^ f^uns^ carbines, rapiers and
vaviiik id itiihet weapons^ ammunition and
^mShnkmff%^ anil inihtary in Mlrnn>cuts, falsely,
tmtmadf •tcrrUy^ aadirauerously did^obtam,
kMf^mthgf^Bml prtjcure ; and to he bought, oh-
iMa^^MllCKsdtUid prncnrcil did cause, and id
fmrm^nAf bad *iiddetain^J, witli thut inten-
•MlkflttuiMMl iimiit Ihedetestnhlf: obominuble
4m $i mm wmi lord ttie king*, and the invasiou
tiknmiA^ at «lbrtsaid» lo use*, employ and be-
^m ; lod ala* joor treasoiii and utl your trai-
Hfoao ialtaiiiiiii, purpoiea, and contriirajiaca
timemid In ««#e«ltef perpetnte* fulfil and fully
knf^ <i!»cl» jroti th^aaid sir VVilltam iW-
'i, to wit, the day and year Idnt
,ai ibe pariah afuresaid, in the county
iy, mahciouNly, ailvigedly,
Irmilorou'ily, divera soldifTv ami
Mid rcAciy to be arned, albr the
f Bbatuinabte and eicecrable aasaa-
[« oml murder nf our said i»o ve-
to aa afoic»aid shouhl he
ad coffitnittedi to ri»« and
•aid reltelUon vi^ithiu thi^;
i of £figtuid In make and Mai;e, attd
ivrai of our aaid lunl the km^^,
t Uraofr^^ra, auhjprta »ttul ^ioldinn*
tmiti l«rwiii ibe Frcmh k\u*^, li«>m;jr about
to oiTaile ibia kua|f«lom of Kn^iand, at and
mtaflMii iad ttitnuct tuu> tbii king-
iBiOMMnittoiaci ait>re%3UJ ti»eiecuie, per
Mi md Itfiiie to efl'ect, 9t\erwards, to ^
^ aai Mor t*it ttbovc^aid, nt the parinl
^yiyii ttic ooitnly aibre&aid, divera bur'
dom then expecte*! to be ahortly made, them-
aelves^^ tojifether with you the s^iid sir William
Faikyi]9^ lo |om und unite, iiud ii»i4> traopn and
lti;mns toturm^ ytin dirl W^Vt li»t, and retittn,
and did procure to be levi#*tl, fiBted and retiuued ;
and those Mitdiens and men for the freaKuns^
inttntitMis and purposes aJoffsaid, then and
there, and nfterw;nd8 m readiness yon had,
ai^ainsi (he duty of your allegiance, and ag^ainst
the pe^ace of our Ktud }iOvert*tRTj lard the king
that now is, His crown and di'jMity ; as also
auuiuiit (he form of tlit' statute in this caae
made ami provided.
How mytiui thou, filr William Parkyns, Art
thou Guilty of thiH hi{jrU trcafton whereof thou
standesi indietcit, or Nt>t <yuilty ?
Purkt/)i$, Nut Guilty.
CI af Jr. Culprit, how wilr thou be Iryed f
I'arkjfus, ByGotlaud my country.
CI. ofAr, God send tl<ee good dtliverance.
ParktfJki. My lord, If your lordship pleaaei
to fkvouV ma with h word or two.
L, C. J, Aj'e, whnt bay ymi, sir?
Parkym, My lord, I have been kept in hard
priaim ever evince I was committed, nobody haa
heea suffered to come to me till Friday' last,
then my coun^^el cami* to me; ami lieinj^
charged with many fucts as I sec in this indict-
ment, it will be necessary to hav^ divurt* wit>
Beascs to clear myjielf of these par(icu1ar»;
tbev arc dispersed up and down, and I ham
haci no ^me to look after thcmi, and therefore I
beg your brdahip to put off my trial till ano-
ther day,
L. C* J. When had you fit^t notice of your
trial?
Parkym, The first notice of my trial was oQ
Wednetday lu<;t, in the aflenioon.
L. C. J, That is a sufficient time of notice j
fure you mi^ht have provided your witncs&ca,
and prepared for it by this time.
Parky m. Bui, my lord, beiui^ kept so close
prisioner, I had no opportunity fur it ; for it
waa not possible for mc (o ^etany body to come
to me till Friday noon, not so much as my
coimsel, atal tht^u there woi but ttro daysi
8alurduy aud Monday, (^^unday is n«i diky lor
any business) and it is impirsskble for me to be
ready in the manner t1»at 1 uo'^ht to be. It is
a perfect distresa and harden p up'm me^ to be
put so soon upon ray trial without loy witiiai»f»eSt
and what should enable xhk lo make my defeuce ;
therefore 1 humbly iutrcat ^our lords»hipto put
it off till another day.
L, C.J, What witnesB do you want, air
William P
Parkym. I have divers vt ttncsse«, my lord,
that can give an account where I was from
time to time ; but they \\re many of thorn out
of (own, and I have E^nt about every way, hut
caimut ^ct them tog-ether in to short a time.
L. C J, When had he notice of bis trial?
Mr. Baker. On Wednei^day I told him, that
he muiit ex|»ect to be tried thrs day, and withal,
thai it he would name me any counsel that ho
would have come to hinii heiibottld baf o ap
order oejLt morDiDg for tb«lB.
I
I
I
I
nj S WILLIAM IIL
L. C. X You were told^ it seemti on W««l-
dav thai y oti might ha?e what couDseJ yan
wouliL
Mr. Baker. Aod be had an onJer upon
Thiirtiduy morning for his counseL
Park^m, I could ncit have it without anjili-
cation to the court al Whitdmit, and coidd \\^\e
nobody to corite (o me till Thursday^ and it was
Fridiiy hefore I ctudd g^etmy counsel to uie.
L i2, J. You rnti^ht have sent ti»r your wit
lie8&e« on Thursday, and employed someUKly
about that matter thfn.
Parky as. The solicitor that t employed waa
eraidoy'ed otherways, and 1 could not' employ
any hcwty el^^e,
jL, C.'J, Vts; yon mi^^ht have eoi ployed
anv otkier about tbatl>uiiiiiie^.
*Farkynt. I had uobofly lo send, f wns kept
close, and noliody periuilted to come to me.
L, C* X Your Solicitor you desired had
leave to come lo you.
Mr. Buktr. Vou know that Ihoae you sent
for, you had an onJer for.
Parky Hi, ! could uot get him till ThUisdny
to me, 1 hiuJ no messeii^er> to nend till then
Mr, Baker. 1 gave ihe keeper direction, lo
let him have persons come to him to send on
any errand,
L. C X The keeper had ortlers, it sremSt to
let any messenger come lo \ou ; and he woul I
have bdped you to tomebudy to send of this
errand, to be sure.
Keeper, I always did it, as soon as I know
Ibev have notice of their triaU
Puriiyns, But the keeper is not always in
ilie way ; and besides, when I hud notice ^i?en
me of my trials tt wa^ execution day, and be
was not at hc»me that day.
L.C.J He nnines 'no witnesses, only be
sa^g he has divers ^vitnetifes, neither is there
any onlh made of any witnessts ; pray bow
lonif is it since you were comiiitijed ?
Parkynu 1 was committed this day fort-
it igliL
L. C. X Your commitment charged you
Willi high'treaMim, and therefnre you kiiew
what you ^lood accused of; were you not com -
milted for bigb-lrea>ion *
• Parkvhi. Yt/s, my lord, 1 behere I was.
&*/. Gen, {H\v John Ilriwles) Jly lord, he
litd a ¥ery fair time to pr«|jiire for Ills <lefence,
for he saw hU name in the pioclamation a c;ood
while before be was taken, and there it is de-
clareil what he stands charged with.
X. C, X You un^rht htt^e harl a copy of
your commitment, you had a right to lii^e it,
, and therdiy you inight have seen what you
were accused of
Keeper, We ncTcr do deny it, if it be de-
aaanded.
X. C, X You cannot deny it; you know
what penalty you are umler if you do.
ParkyttM* Nobody was permitted to come lo
JUC. J, You might have asked for n copy,
or any body else ; lor you hud notice of your
Irial Bu long ogo as Wednesday last.
Trtol ^Sir William Parh/nSf
Mr, Baker. 1 gave him notice of his trial
Wednesday, and tlien told bim he ctitiM ^
for it agsinst Uiis day ; he said he would
deaviiur to petition for a longer time ; 1 1
hiiQ it would be in vain, tor be niosi prepare
his trial to day, and could have no
Uiue.
X. ax Sir William, truly we do nal
any reason lo put off the trial u{ion these j
geijtions.
Parkyns. My lord, it is very bani ; ihi
humbi} beg I may bare the favour, that 1
have counsel a I low ad me ; 1 b&v« no
indktmenta.
3. C, X We cannot allow counaeb
Patkytis. My lortl, if I have no ooi
do not utiiletstand these matters, nor
advantage may be proper for nae to take to
cases.
L, C X You are not ignorant, sir Willk
that counsel ha$>heen alwiiys refused whea
&irtt\ in such cases.
Parkyns, My lord, there b a new u
parliameDi that is lately made^ which
counsel.
X. C, J. But tliot does not commence ]
sir Wdliam.
Parkyns. Mv lord, it wants hut one day.
X. ۥ J. Thiit is AS much as if it wa
murh longer time : for wf are to pr«»crfd
ciirtling to what the law is, and not
will be.
Parkyns. But it is declarative of the cam^
law, l>ecause it say a it was always just a^
st>n»ihle.
X C. X We cannot alter the law
ma kern do it.
Par kyns. Will your lordship be pi
let it be rea«l?
L C. J. Ay, if 3 Oil have a mind lo it» Hi
be re^id.
Parkyns, Yes, if your lordship pleasea*
L C, X itea*l it. ,
CL (if Art , (Reads ) " An Act for .
ling fd Trials in Cases of Treason, and
prision ol treason.'* (7 Will, arid M< Cap. d
All the first pamgrapb of the new Act
read.
L. C. X Look ye, sir William Parkynit,
law has not taken any etfecl as yet; but
]»w stands as ii did before the makmg of
act.
Parkyns. But, my lord, the law says il
just ai>d rtosonable that ii should he so»
X C. X We go accordmg lo the law m
find It is.
Parkym And, my lord, what is just and
sonable to-morrow, sure is just and reason
to ilay ; and your lordship may indulge
this case, eKpi-cially when you see how slrei
notice 1 have bad, and what a little time
bien iilloweil me, that 1 am not able to
any dele nee.
L. €. X We cannot make a hiw, we tuusl
accorrling to the law; that oiusibeuur
and dircclion.
J
Jwr High Treoitm.
Ym^ OT lord, hot what is just and
mmrmkmMi th« law is groandeil
TIm pariiaiiMmt has thoaf^t fit to
ft iftWy which is to comineDce from
''this month : it is not a taw till the
that the parliament bath appointed
ra law.
Biit, my lord, if my notice had
enient notice, 1 had been within the
i by the act of parliament ; and no
lot the advantage of that act from
rd, nor suffer for such want but my-
it a |>articular hardship upon me.
We cannot alter the bw, ws are
sr oaths to proceed according to the
at present.
Pray, my lord, let it be put off till
then.
Yoa shew no reason for it ; you
messes that you want ; nor hare we
at we ought to have in such a case.
. 1 will do both if your lonlsbip will
lit.
rhere ought to bean oath certainly ;
ik you have had fair and convenient
/on have had as much notice as sir
had, who was tried yesterday.
. As 1 am informed, he was charged
t facts about the town, but 1 am
tfa many particular things nx>re than
The act of parliament says nothing
' trial ; that still ciintinues as it was
d you have had very convenient
) oo, Mr. Hardesty, to swear the
\ Sir William Parkyns, you the
the bar. Those men that you shall
and personally appear, are to pass
r sovereign lord the king and jou
f your life and death ; S' therefore
allenge them, or any of them, yon
k unto them as they come to the
■worn, and before they be sworn,
. 1 bojpe your lordship will be of
me then.
8o we will ; we will do you all the
lo. Look ye, you know you may
S5 without cause, and as many as
th cause, but no more than 35 with-
\ 8ir Goddard Ndthorp.
r. 1 except affainst him.
^ Leonard Hancock, esq.
. I except against him, he is the
ant.
^ William Withers, esq.
u I challenge him.
r. Samod Powell, esq.
I. 1 challenge him.
r. William Norlhey, esq.
'• Well, 1 don't except against him.
dr. Hold Mr. Northey a book.
IS doBe.) Look upon the prisoner.
weft ftod tnily try, and true deliver-
I lord the king
' A. n. 1696. [74
and the prisoner at the bar, whom you shall
have in charge, according to your e? idepce $ .
So help you God.
C/. of Jr. Thomas Tench.
Farkym. I challenge him.
a. ofAr. John Wolf.
Farkyns, I challenge him.
CL cfAr, Jame^ Bodington.
Farkym, I challenge him.
CL ^Ar. John Smith.
Farkym. I challenge him.
Cl.ffAr. Edward Gould.
Farkyns. 1 have no exception against him.
(He was sworn.)
CI, ofAr, John Raymond.
Farkym, I challenge him.
CLqfAr, Daniel Thomas.
Farkym. I have no exception against him.
(He was sworn.)
Cl.qf'Ar. Isaac Honey wood.
Farkym. I challenge him.
CI. ofAr. William Underwood.
Farkym. 1 challenge him.
CL ofAr. Arthur Bay ley.
Farkym. 1 challenge him.
CL ofAr. Nehemiah Ertning.
Farlcym. I challenge him.
O. of Ar. Johi) Webber.
Farkym. 1 rha lenge him.
CL ti Ar. John Canf.
Farkym. I have no exception to him. ^
Att. Gen. We challenge him for the kia|^.
C/.o/i^r. Thomas Glover.
Farkym. I challenge him.
CLofAr. Henry VVhilchcott ^
Farkyns. 1 have no objection against him.
(He wasswoYn.)
CL ofAr. Timothy Tbombury.
Farkym. I challenge him.
CL ofAr, Dormer Sheppard.
Farkyns. I challenge hhn.
CL OfAr. John Temple.
Farkym. I challenge him.
CL ofAr. Nathaniel Gold.
Farkym. I have no exception a^inst him.
Mr Gold. My lord, 1 am no freebokiei' in
this county.
Mr. Baker. Nor have you no copyhold, Si^ir ?
Mr. GM. Yes, Sir, I have.
Att. Gen. However, let him beset by.
CLofAr. Robert Breedon.
Farkym I challenge him.
CL d'Ar. Thomas Taylor.
Farkym. 1 challenge him, he is the king's
servant.
CL ofAr. Joseph Blifcsett
Farkynt. I challenge him.
CL ofAr. John Billier.
Farkym. I challenge him.
CLofAr. Francis Chapman.
Farkym. 1 chalteDgc him.
CL of Ar. John Cleeve.
Farkym. 1 challenge him.
CL OfAr. Robert Barapton.
Furkim. I have no exception to him. (He
was sworn.)
CLqfAr. WiUiamAtlM.
»*]
BWUJJAMia
TfUl qfSir Waiiam PaHlynt^
Parhfm. I diaUene« him.
CLcfAr. TbomMSntton.
Farkyns, I ha?e no txcqitioii to him. (He
was svrom.)
CL ofAr. Thomai £dlin|r.
Pcirlcyns. I have no ezc^oa against hiou
(He was sworn.)
CL rfAr. Robert SandtoKm.
Farkini, I ha?e no exception against him.
(He was sworn.)
ClofAr. Ralph Blarsb.
PsrAyiM. 1 ha?e no exception against him.
(He was sworn.)
CL efAr. Richard Bealing
Furhffu, Pray, Mr. Hardesty, how many
have I challeDged.
Mr. Harde$ty, I wiU tell yon presently,
Sin — ^You have challenged twenty-five.
FarhffU, Bnt there are two that I gave
reason for : Do yon put them iu among them ?
that is, Mr. Hancock and Mr. Taylor as the
lung's servants.
CL cfAr, Yon may speak to my lord about
it ; but if tbat^ aUowed, then there are hut
twenty -three.
Par /^fu. Well, Sir, go on then.
CL(f Ar. Richard Bealing.
Farkwn. I challenge him.
CL ofAr, William Partridge.
Farfcyns, I challenge him.
CL ^Ar. NichoUs Roberts,
Farkyni, 1 challenge him.
CL ofAr. Peter uviffne.
Farkyns. I challenfi;e him.
CL of At. Joseph Whiston.
Farkynu I have no objection to him. (Ho
was sworn.)
CL of Ar. Andrew Cook.
Farkyns, I challenge him.
CL in Ar. Samuel Hooper.
Farkym. I challenge him.
CL of Ar. Thomas Heames.
Farkyns, 1 have no exception to him. (He
was sworn.) •
L. C. J. Sir William Parkyns, you have
eihallenged two, and have assigned the cause
of your challenge, that is, Hancock and an-
other, and the reason of your challenge is, be-
cause they are the king's servants. 1 am to
acquaint you, that is no cause of challenge |
hut however, the kine's counsel do not intend
to insist upon it, if there are enough besides.
They are willing to ^ on with the paonel ;
«iid I speak this, because I would not have it
S» for a precedent, nor have it understood that
e cause you assign is a good cause : Bnt
however they will not stand with you^ if there
he enough to serve.
Farkyns. My lord, I submit to it j the jury
is full, 1 think.
CL ofAr. No, there are but eleven sworn yet
Farkyns. But how far have I gone in my
challensee P
CL if Ar. There are fonr which you may
challenge more.
JW/gfiM. There are two allowed me, though
HbaMtajpreoadcnl: AwtlieraloiirftiUf
CLqfAr. Yes, yon mav ohaHei
more, and no more. Edward Thomp
Farkyns. 1 challenge him.
CLiffAr. NicboUs Rufford.
Farkyns. I have no exception of hit
was sworn.]
CL iif At. Cryer, oonntez. William ]
Crytr. One, &c. (and so the rest
twelve.)
CL ofAr. Nicholas Rufibrd.
Crytr. Twelve good men and In
together, and hear your evidenoe.
CL ifAr, Cryer, make proclamatioi
Cryer. Oyez, if any one can infS
lords the king's justices, the king's
the king's attorney-general, or this
now to be taken, of the High-Treason
the prisoner at the bar staMs indicted,
come forth, and they shall be heard ;
the prisoner stands at the bar upon his
ance ; and all others that are bound b;
nizonce to give evidence against the
at the bar, let them come forth, and g
evidence, or else they forfeit their recoe
— ^And dl jury-men of Middlesex u
appeared, and are not sworn, may de]
court.
The names of the twelve sworn- wen
William Northev, Edward Gold, Dani
mas, Henry Wbitchcott, Robert B
Themss Sutton, Thomas Edlinsr, Rob
derson, Ralph Marsh, John Whiston,
Heames, and Nicholas Ruiford.
CLofAr. Sir William Parkyns, holi
hand. [Which he did.] You that are
look upon the prisoner, and hearken
cause : He stands indicted by the imn
William Parkyns, late of the parish of
Covent^Garden, in the county of Mi
knight, that whereas (prout in the Ind
mutatis mutandis^) and against the fore
statute made and pn>vid^. Ut>on thic
nipiu he hath been arraigned, and tl
hath pleaded Not Guilty, and for his ti
put himself upon God and his counti*}
country you are; your charge is to
whether he be guilty of the high
whereof he stands indicted, or Not Gi
you find that he is Guilty, you are t(
what goods and chattels, lands, tenem
had at the time of the high-treason oon
or at any time since: If you find I
Guilty, you are to inquire whether he
it ; if you find that he fled for it, yoi
inquire of his goods and chattels, as if
found him guilty ; if you find him Not
nor that he did fly for it, you are to sa^
no more ; and hear your evidence.
Mr. Mouniag^e. May itplease.your 1
and you gentlemen of the jury
Farkyns. My lord, your lordship was
to say, you would be my counsel. 1
norant in matters of indictments, I beg
be any fault in it, von will let me know
L. C. J. Truly 1 have observed no
it ; I do not know of any.
Mr. Momnttg^ GcntlamaBp Ihia
tfigh Twim
I ti hcmrj &n accysatioti as
Sf^v man, Ibr tt not only
tef vit\\\ a tr^iterons design
\ ihr t!i»> n ijjurnt, Boti raisitjc^ war
tlom ; which was
:' kiti^^^s enemies,
^Atorei|;u iuvMf(if>ni im\ likewise
f^ifaiuin ibc Ur<t of the king,
bff«ii taken away by a
s forth, that
r at the bar,
vrin Ciiarnock, and
: there it was coDsuJtet]
I lou hi procure French
*iiv king^dotti, and then
V Mr.
•thehar
nR^isa tmeneng^r into trance, onto
)kMf Jatnfs, loac«)uairit hira with thifi
and to desifc him to hnrrow nf
Ida^ as many tni^ips aji tie coutd
Haaiiea descent upon this kinifdom ;
Xllt)k««aii»e time were to fur ilitiite the
I as many men as tltey could
linatidti ; and tlie number of
iD(if3D, who were to be firo-
" Ktii ; of whiHi the prisoner
itul fire, who were to he in
land set ujion the king as he
ch, upon his rettirn from
ere lo assault and attack the
\ were liurbarottsly to atisfl^
kin^ in \\is coach : And
I the primmer with under-
pitri' and pro? idc fife horse? and
^ 10 lie umtdayed in thi^ bloody
id lilMJ With gatlrerifiy" log-etber
I of anns and ammunition that
wl in tilt- inffur recti on. To this
pn»otier liufi pleaded Not
b^ not gurliy* i'wl torbid he
Hicted \ But if he br i^tnlty, and
kct, tli« nation experXs thnt you
to the kin|^ and kingdom, and
TI*o. Trevor). May it please
anil \*ni Genih'iijeii of the
sii WiUimn Par-
i#»' ^^> treason, for com -
tni^ty, .iiid adhering'
end the ortfrt^actt
to prore this treason are,
had «#^f»ral meetluga and
• ilmtii a mes-
Jaroe*),
> king.
le king'
ihat he
\\ p€r-
3 royiil
i'>ned in
.,^ ... treaitfta
fkm efideooe to prore these
l« mA nUidi m% sIiaII product, will
be in this manner : it will appear that the pri^
sooer at (he bar, sir William Parkyns, has nad
a commission from king James to raise a regri-
ment of horse ; ai)4 about May last, he with
BCf eraJ others had^ meeting at the Old King^»
Head, in Leadenh all -street, where were pre*
sent my lord of Ailesbury, my lord Montgo-
mery, sir William Parky ns, sir John Freind,
air John Fenwiok, Mr. Charnock, Mr. Porter,
and one Mr. Cook ; and Goodman came in to
them after dinner. And at that meeting it was
consulted and concerted among them, bow they
should bring back the late king James, and de-
pose his present majesty ; and in order to that,
they did resoire to send Mr Charnock ai a
messenger to the late king James, to deiir»
him lo obtain from the French king 10,000
racQ to invade this kingdom, 8,000 foot, 1,000
horse, 1,000 dragoons; and to encourage the
late king to this, tliey did assure him by thtt
same messenger, that they would meet him
with S.OOO horstt upon his landing ; and ihey
did all undertake and agree that they would
do it ; and Mr» Charnock undertook to gti of
this message.
Gentlemen, about a week aAer this meet<-
ing, Mr, Charnock not being wifliog to gd
upon til is errand vithout a good aiisurance that
tliey intended to perfarm what tbey had re-
sohed upon, they therefore had another meet-
ing of most of tlie same persons that were ai
the former, and particularly the prisoner at tha
bar was one j and that was at Mrs. Mountjoy X
a tavern in St< J umes\<}- street. And at that
meeting they did aH agree, as formerly, aud
continued in their former resolution, to send
Mr. Charnock to assure the late king, that they
would meet him, according as they had pro-
mised, if he would give them notice where h«^
was to land, and he should not fail of their as«
sistance. And at these meetint^s thpy did take
notice, thftt tlien was the most pi-opei time for
such an invasion : for the king was gone ta
Flanders, mogt of the forces were drawn thi*
ther, ^ii\ the people were dissatisfiecl, and so it
would be the fittest opportunity to accomplish
their desi«^n. Aad they desireJ Mr. Charnock
to make haste to carry this message, and ta
intreat king James that he w^uld be sp* edy and
expert it iou^ in his couiing, that they might not
lose this seELSon.
Gentle men , after these m ceti ngs , M r, Ch ar-
nock did within a few days go over into Francei
and did deliver his message to the late king-
James ^ who took it very kindly, but said that
the French king could not spare so many foreea
that )/ear, hiving other work ti» employ tbeiQ
about: u|>on which, within a month^s tune, or
lesK, be came back again, and brought an tc-
coiint of his mefisage to those gentlemen wfa^
sent him. This was in May or June last, and
so the ftirther prosecution of the design ceased
at tiiat time.
But, gentleuien, the last winter it was re-
vivcfl ogaiu, and attempted, and carried on
very near to the obtaining a fatal success. And
yon wUI bear, thai the pri«OBar it tlie Wr» m
79J
8 WILLIAM III.
Trini ffSir WiUiam ParHyns^
jWjUtara Pjirkyriii, bfts had ton ((reat a hand,
i#nd been a \ery great inKlntrneut in bnth the
iMfts of thij» wicked con!«pir«ioy and treason ;
|tiiiton)| in the iniasion^ wljk'b he with ollifrs
fieiil the toeti^enger over to*^ocure; hui al^i
[ill the otKiT part, the bltick^t iiart^ eren the
filiation (d the king's |»#»r*oij.
Abitut Jajiuar^ \nm sir Get^r^e Barcley, a
lieuttnaiit of thi^ GuanJs to king Jaineti id
Prann«« w^^ atMi over into Eii^IauiI to en^a|j;e
OMH t" )uin in the conHpiracy and assas^i-
iMIon; and fW hiH tis^istaot^ th<^re were sent
f^nermtth him, and Uffore and aftor him, smue
20 troufi^rM uf tike tale kin^r^s, »hat were his
g^ujrd^ iti FiAiice* And «ir Oeunrtf Barcley,
to tnioi»ni;je the persoiifi that were to join, and
whom ht* haci broug'bt over with biu't, pre-
tended an aufhnrity to justify it, that is* n com-
ii]f')<<i4»n ffiiui the tale kingf Jiimes ; and he com-
nnnicateis iliis dt^ign U\ Mr. CUarnurkt 3V]r.
Ipurt*??, and several others, and nnwin^jst the
Pfe^t to the iiriRoner at the* Imr, sir Wilham Par-
tvnsi, hn^inu^ a great ciMtfidrnce in hinu and
ltd ari|naint him he had «uch a commission^
ird heiihewed it hino, and iltat commission i^as
1 kvy v<ar a^-atnat the k 10*^*8 pennon; wliich
liliey tm)k to lie a HutBcient authority tor itiem
» assassinate the king^V person.
Gentlemen, in order to the arcompHsliing-
fthis horrid eonspiracv, there were several
Deetin^ and euitKultatitms had, at whic h the
' }iri!»ifner at the bar was presi nt, and very ac*
tire Sometimes they met at captain Porl«r'ii
lodo'inijfSi at another time at the Na^'s-Ht^itd in
Covent-Garden^ at another time at the S*m in
the Strand, and amuher time ut tl;e GJiibe m
Hat tun* Garden, in order to accomphsli this
deiii^D : and at the«e meetings you will hear
they did propose several waya and methods for
the execution of it ; and several persons, par-
ticuliHy one of them Unit have sufTeiTd (he
puoishirieiil of die luw for this, were app«»Hilefl
to go and view the i]f round, wtn^re the km^f^i*
persnu mig-ht m*nit conveniently he as>^aulied.
Mr. itiiiLf, that was execuieii fur it, was one,
captain Piirti'r was aouiln r, und mie Knight-
ley was the thinl ; nnd these did tfo to avv the
ground. And the duy before they went there
was a meetiner» at w Ikich was prenen^ tlie pri-
Honer at the bar, and others, wbereni it was
concluded upon, (hat they nhimld 1^0; and titey
Hent iiecordni^rly to %t^ thi^moit convenient
place for it. They went (o Brentford, uud
mftei wards to the other siile of the v*oier to
Hicbmond, and surveyed nil the i^round; and
the place they pitched nnon us the moitt proper
for their pnrpiise, ^1 ns, wlien his tna jeirty hhoidd
return frnn» bunting, to do it in the lane betwixt
Bfenlf«»rd and Tuinham-Greeu. And arconJ-
iuuly, when they relurneij m theeveuint;, ihi^v
ranie hy upjioinmient to the ^alace wliere tlie
reiit of (he iiCcompUce« were to meet, at the
Nau*S'Head t»vero in Sl JannV*, anil g-ave an
account of Ititir proceeding ; and at tliut nu^t-
infj likewise was sir Wilhaui Pttikyn»4, thepii-
loner at itie bar, Mr. Chumock, and &<rve>ial
and i\li'. Kinif's es|iedition, they did
the thinfif should be done in that place,
(hat it shrndd be done in this manner.
Sir George Bajrcley with about difht or
in his party, who were to be cbctsen out
the other p&iiitst were to aasault the
coach, and cndeatour to kill the kiui^i
the rest that were inlheoo}»cb with bim,
the others in two parties were to atti
^nardji ; and the nnmber in all vrasto bei
40. This wa?. fully affieed rtf>on
And, jfcnileinen, ihe Jir^t time that thty
solved to put t his traitoriius desist in exe *"
was (he 15th of February, which vraa a
ihv, the usual day that the kini? w
eo a-hunling on ;' hut it bappeneil
provideuci:, that ihe king did not go
duy.
They had contrived further, to i
thintr5iure,thEit there should he two
whom they eal ltd orderly men, wliol^.
idaci d fit keiiRmArt«jn, to t/ire notice vvhet]
kin^ WL'ot ahroiu) ; nod Chambers waa 1
and Ouraocc that was a Fleminif was aa
and Durance whs likewise en»ploye4
the inns about Turoham-Gieen and P
for the h*d;4injr of their men, who we
placed two or ihrte.in an inn, that the
nut tie oliserved,
Genlleri[>en, the first day appointed ftiri
acf^omplitihirrii^ this cit^Lgn, whii'li wa^i the ij
of February, being over, and tlie} dif&appoia
yet they ihd aJ'ierwards reaolve to go oni
execute it. And the nest Saturday, \% bu "
the 'i2d of Pehruary, <vas pitched n|H
time of e\'tH!u(ion ; and accordingly c
the 21^t of February, the d.iy befort?, I
a ineetiog at the JNaifV-head in
GanloD ; and there was prcs^ent sir
Barclay^ capl. Portor, and several otlietn,!
ajnongst the re**! (lie [»risontT at the bar
there : they had nt tir.st some discoursa an
them that they utre in doubt, hcc^tuse ofl
first disappointnvent, wlieiber there had
been Kome discofcry, hut that dootit
over; for il was said, it couM not I
then they shnulil not Jiave Iw-en there t^
That seemed probslde, nnd the dia
nieut was imputed to sotne u« (;ident ;
gave them new asi^urance to go on, and 1
were reii^olvetl to do it in the nan^e itisni
OS they had formerly resolved, on the uext 1
which was Saturday,
Geollemen, at that rneethig Mr, Porter
quaiuted (hem, that he ha«l tlie mi^fortun
hiive Rome of ln.<i horsesi falku sick or
and he acquainted the prisoner v»ith it;
sir U illiam P^irkyns wa& careful to sop
with other horses, and (old him« he cou
note from one Lewis, who I think is
the horse to my iord Feversham, to gel
hor^ies; and accor<lin<r|y he dtd send a QOte|
three horses to >lr. Lewis.
U|>on the 29(1 of t^ehruary in the roor
w hieh waa the time lur the execution of
bloody CO n s pi mcy, they had met together, 1
I aud upon the report of captain I'orter rasolved to go on widi it^ aud put it in
/Jrr ftigfi Treason,
r had Eiotice from Chamb^rSt
twfrnij Ihtit dav, and
ivm &U, tlitukliig
ordered n\\ thitiiifs
crward$^ about oue
e«v9, that the kin^
Uuitrds w«tre all come
icir hoi-ies l>ein^ all of a
i were sent back to
itn to be in a ip^eat
Jtt the thing hud
This* ifentJe-
acLtmiit how it will appear
r« at to the eottsfYiriic y ot as-
kin^i aod f^t' t etiiig^^
tvliout it ; :•! ise pn
vir WtllififU ka\H\t\St WAS
there wilt be a little more
if kl be oeccssiry, to confirm this
, Aud to uUtew titi Tturi lUat the
ir hait iu thi^ ie^ this
cy ; for it ^ ^r, that
EtnAl a cotnruU'Kiim trorii the late
Irai.ve a re^i intent of horse, and
Tiijfr imo Fraiic«> to in?ite the
rith lO^OOO French ; so he had
aliou at arifiJi to be rendv fot'
About Michaelmas loKt the
nt a pari'^t of gt»ods, as he
v^re put iotii ettjien, I thiirk
j^bt small boxeSf put into
and tent down by his order
Dill oiie H ay wood. 1 1 se(?mt»
in«rrie«J Mi\ Chamoek's
f k writ A lelUr to him, and
wotjld give ail' William Far^
djfe s-omp. (roods there^ which
jrst not trust thnn
r.shire» because his
[Ibere iu li>ok alier ihem ;
I that letter Mr. Hay wood
: tbe goods should be earned
' were so, and there ibey were
I and kept till thin barliarous
Hvereti; then you will tiod,
bar lent his own scrvaDt
ijf w^fkmt the diacovery, and
t JnwiMsdiatcly ' ■ " ^ -^ ^ ' ^ is E 11 *
W m llw g^room, ii alter his
I fo diMrii to Wmi t^.. ^^.liic lo one
»Imi canicd llie gooda, and desire
lo reniore tho^e gooAn,
II « them privately f and
hide them. And ac>
be came there, which
id acquainted Evans
liad ordered him, and
bt with a cart to IVlr.
it was late, and they
lillllieDext mominif, thej
s^d titey could stay no lontfer
rtmive tlic gcKids iiti mediately, and
{y IAmtv prer< csnried from thence that
pir mfliMD Ftekym'a own house in
iirit ; m»4 tbcre tbev were buried in
i* Hm* m^ uua mme of this
fwttaiday I
ist\
A, D. 1696-
great valae were put into the grotinJ to pre*
sertethcra. But after this di^cot'ery. sir Wil* •
liam Parky ns beingf accused, and his nume put
in the proclamatioo, and search bem^ ordered
to l)e made at his house, thej*e tfofwls thssi hiy
hid at Haywood's, and upon tlie removal thence
were thus btineil in the g^mund, came to be
discovered, and the cases were brokca open,
and then they did appeur to be tr^'^^'* of an ex-
traordinary nature indeed, for you will dndthey
were horse arms for troopers; thcfc were twa
nrjd luirty carbines, live and twenty ciises o£
pistols, and aboni forty oitd swonls witl>oQt
ilih* upon them t but thenilti* lay loose hy ihem;
so thai this will make it apparent, without dis-
pute, how tkr the prisoner at the Imr hiiii en**
Ij^n^ed in this conspirBcy, and wlmt prepara-
tions he had made for the execution of it.
Cteotlemen, it itiJI appear ^arlhci ag^iinstthe
prisoner at tlie bar, ihi^t he Imtli had a Lon-*
siderahle number of horses, that hiivc freiiueut-*
ly been brou^^ht up from hi<f hoo<e in Hert-^|
lords hire, to the George- inn iu Hoi born.
But before ivecome to that, I woiiiil acquaint^
you withf another particular port of our evi-
dence, that is precedent in point of time,t
ALK)ut Christmas last^ tbe pitsoner did acqiiainir
one f!»w€et, who is an officer in the Excifl©,
(and 1 am very Morry that we should havo
;iny such ofBcers that should be thought tit tc»
be intrusted with secrets of this nature) sir
WilUam Parkyns acqaainte«1 this Sweet, au(|<
f^re him anac^couutthat he liad loii;^ had
au ajisurance that king James would land ; but
now ho had it under his own hand, that bar
would land very speedily, and ih^t be had
made preparations ibr that (turpose to meet
him. That ^reat things were expeijicd iiont
him ; that hU own troop was rt<ar|y, and ifi-
ci»nsisted chleAy of old soldioi-s ; ami that se^ I
vcral persoas who had been ofBcer^ woidd be '
volunteers under him. He said he intended t<» I
go into Ijeicesiershire, and there he was t4i
meet several gentlemen from the North, and',
from the West, to consider and settle a cor*
resjiondence how to meet the lute kingf upon ,
his laiidintj;- ; and acoordlng-ly str William P^ir* i
kyri?i did g-o ; and you will hare an account '
that he came to Leicester on Friday night* i
one Scudamore went along" with him'; lhert*'|
be staid all Saturday » and a qfood part of Sun-
day. Inhere came isereral persons to bim j
while be was at Leicester^ parlictilaHy oik J
captain Yarborough; the soo of sir Thoma»j
yarboroui^h, and a parson, whossiii they came J
as fiir as froui York to meet sir WilUarn Par*
kyns at Leicester ; and theje was ^rtat resoti
tluther at that time, as you will hear tVottj tin
witnesses. Sir William Parkyns came
a<^ain from Leicester to Brick hit) that ni^h,^
and retiiracd to his own house on Mondaj
ni|^ht ; and a^ler his return, he acquainted 1
Sweet, t4»at he had been his journey to Lei« I
rt^Kier ; that he met with several gentlemeal
therefrom the North, and other places, anill
had settled a correspotideocy, and had foantj
them all tulty eiigii|^d, «Qd w«ll mdiaed , all'l
88]
8 WILLIAM m.
Trial »f Sir WiBiam Parh/iu,
[fl
weot well, and thert was no dan^ of any
miicarriage at all ; and thia waa about January
lait, that thia expedition was made by the pn-
And now, gentlemen, as to that
about the horaes, which were ao frequently
brought up this last winter from his house in
Hertfordshire, to the George-inn in Holbom,
there is one very unfortunate circnmstance
that attenda this matter ; that is, that these
horses were brought to town just the several
nighta before the King was to be assassmated ;
fur upon Thursday the ISth of February, he
being in town, sent diredMna to his groom to
bring up three of his horses on Friday, which
waa the 14tb in the afternoon, and all these
horaea were fumished with pistols and fnr-
nkora for troo|)ers ; according to those direc-
tiena his servant brought up the three horses,
and be came and acquainted bis master that
ih&w were brought up according to his order ;
sur WilKam Parkvns waa then at hia lodgings,
which were in the same house where Blr.
Charaoek did lodge; when hia man had told
bias the horses were come, he pretended at first
Ihat be had some thonghts of ffoing out of
ISfwa that evening, but that he bad changed
^ bia asiDd, and would go in the morning ; and
' be would have the horses ready against the
Bexl ■MNning, which was Saturday the 15th,
the first day upon which the assassination was
intended to be put in execution.
The next morning when his man came to
bim again, he had changed his mind, and he
would not g<) out of town in the morning, but
be would igii in the afternoon : and it will ap-
Vetrthat he did not go out of town that day, nor
the next day, nor till Monday ; and then the
desikfu had mi&ca fried by the king's not going
abroad a Saturday, and the horyes were car-
ried back; and when he went out of town
upon Monday, one Holmes went along with
bim, and he went with him to his house in
Hertfonishire ; and there he sthid until Friday
after, which was the day before the next time
that was appointed for the execution of the
JMsassination. And upon the Friday they came
up again, and then there were more horses,
four or five, that were brought up that day ;
and all of them with pistols, and jack- boots,
and other furniture and accoutrements fi»r
troopers ; and thesie came to the Ge<>rge-inn,
where sir WilliHtn Farkyiis (^ve his man,
Eubank, ptirticiilar orders to be very early the
next morning at Keusin;r(uit ; that was the
S9d, and he was to go, as he told him, to one
Brown, tliHt he said w>ik eoncemefl in iheking*s
kitehen, an«l hve«l two doors otf the gate that
turns itp to the kin(X*s house ; and he ivas to
t**ll hi'u he was sir W.iliam Parkyns^s servant,
but ilmt he cume from a man that loilged at a
confei'tioner's housr over ugaiust Gray's inn ;
in which place, by tiie description of ihe person,
yiiu will liiid ffir'Ge.triff' Uarcloy l-Mlged.
Till* man went aerontiui^ly ai eight o'clock
in I he muniing to KfiiMugton, and inquired
•ut this Brown, and met with him, and udd
him he was sir William Parkyna's servant, bt
came from the gentleman that lodged at tl
confectioner's in Holborn. Brown said he bi
nothing to say to him, but bid bim gire hu
his almanack, and he writ in it, that he woo!
be in town in two hours himself and wait npi
him ; and bid bim carry that to the roan tw
lodged at the confectioner's : And this Bnm
by the circumstances of the whole roust on
bably he one of the orderly men who lod^
at Kensington, to give notice when the bM
and the guards went out,
Sir William Parky na's servant came back 1
the confectioner's house, and there he vm
with a man that went by the name of Rnnn
he will tell you be was a Scotch man, fir 1
spoke broacl Scotch, and he will give yoe
particular description of the man, o^ whiehi
believe it will annear'tbat it was air GeM|
Barclay. Sir nilliam Pirkyna*s senrant, m
ter be had delivered his message td tb
Rogera, came back to hia master, andtoM bii
he had done hb errand according as he wi
ordered ; and air William Parkjrna aaked bi
what RcH^ers said, and be tohi him thai lie b
bim tell hia master, if he wouki come to bim, I
would he ready at home for him. This Wi
upon Saturday morning the S9d of Febrosij
About eleven-a*ck>ck that day air Willm
Parkyns, and this Lewis that we s«4w t
before, came to the Geor^*Inn ; and Uierei
William Parkyna asked his servant whether I
had received any more than two saddles^ I
there were two aaddles sent in thither, aooni
ing to an order that had been given, to ftvnb
two other horses that stood there at the Gceig
Inn, and which air William Parkyns toU I
groom bekNiged to two friends of his, snd b
hint he sore to take care of them, sod te m
them well fed, and ordered two saddles Is 1
boui<bt for them. Lewis said he did tbbi
they had more Chan two ; hut yon will see b
the evidence tbat this same Lewis had pv
vided thirty saddles for sir William ParicyM
but there seemed to be a controversy betwbl
them at that time how many had really bsi
sent in, and Lewis affirmed there waa twso^
four ; but sir William Parkyns said, 1 fart
had but twenty -two of the thirty yet, fbr
have but two brought in here, and I ]
before. This you will hear fully proved ; ■
I think it is impossible for any booj to holiT
but that all this preparation of aaiUlleo, |nsM
boots, and other things, must convince rf
boily of tlie prisoner's being so far engaged
thisdesign, tnat he can never answer it wills
lilfiving you a very good account what t
preparation was for.
Gentlemen, a great part of thia will
proved to you by one that acted in it, ss ^ ■
vaut to sir William Parkyna, that is, as tf» ^
coming up of the horses, jack- boots, ptalM
and other arms at that time ; and that wi
on the last Saturday it was disappointed, all ^
horses, mit only tho^ air Williani Psrtd
brought, but the other two, went nwsyfi
great hurry and ooofuiieo, and
jvf High Treasctu
rj of tliHO more ; otifl that will be
Lliv sertan[i» in tbc very tnti.
ISteiUoo^n^ I h- [ ened lo you the
wma»madMlAtCiilii > v; ^ewtUcatlour
wiaim^Mt muff mmki: a out very undeniably
urftiApEi^fftrmMr, atir) thr^refurc I will not give
OfLFm
i . ler. (Wlio was sworn.)
M/ rnrr, ^HL*v vwll^ou ifive the court and
11b /^ an i&frcoiiitt of the meeting;' at the
Ki^j^Bead iti LemileuhAll- strict; and who
atui wbiit rvsututiuns and aj^ree*
cam 45 to f
'fr<-. About the Utter end of Mny
ij^ bcpicvokif^ of June, there were two
p li«il« til* one was at tiie Ein^ V Hend
, the other waA at Mrs,
Dear tiriuhu FeuwickV At the
I there was tii^ loni of Ail es bury,
gi iti HflOigoaiery, air John Freind, Hir
mSkm P^tf tt^ the prisoner at the bar, ijir
iM PflBwk£^ capl. Cbarnock, Mr. Cook,
Mr. 0aodinan came in after
tberr we c»n«ulted which was the
hmmy §Siw hdo^ Jameses comtDfr in ; and we
timing lo seud a tDessenger to him, to
Ui hem o^vTf ami to desire him to interpose
li* ths Fmacb kioff for tbe ^ettio^ lO.mo
mm ii» cttBtf <w^ viab y^t 8,000 foot, 1 ,uoo
l^aad 1,000 drvgoooa. It was then con si ^
4Mi«i« ibiittM oeaenii and all the com-
, ptff afvtvO Mr. Cbaroock was tiie properest
IVA ISaj« Mr. Cbarnock, if you send me,
' pl Irfl Hit what «rrmod i shall ^i upon : We
« ttiMJii tHrn affree, that he should ai^ure
ti^i* if be would ooina ortrr at such a time,
^w«|i|«MCt him with a body of 2,000 horse.
kt.UoL Did tJharoock uudertake to go
^mp« Yia»i be did| and^to profiOBe this
B^tt kiiB, ihat he minflit projjose it to the
J fiat the gettujt^ of the raeo.
^ G«a. lSd<>re you go away, 1 desire
iii if |«« one tbtajTi (iid sir \VLlham Par-
ner si the bar, agree to the
»*-*l'«r<cr. Y*^a. be did.
Had you aoy other meetinf^ about
, and wbeti was it, and who was
Mj lord, captaiii Ctiarnock said at
ool go of a foolish me$.<iage
y ^fmtpm m% aU agreed to be at the head
^Ulliaisa tA mef*! king Sumf^ at iiis land*
H ^tytry Qo^aiinuld hrin^f his*ttuom.
^^^^ Wbeo wa»* th«' Htcond uieeting,
^ H«» »ii it, and w bo was there, and what
j^*^ " nt^ was at Mrs.
*^T nioi'k fln^ircd ui«
Uk*-ii, In line tie Mrenl awtiv, lo
*4r kept iu our first retiihiuou ?
••^iacTiw to what WM resolved upon at
'iM kt «4id b^ would go in two or three
CQiDpany a me lo it then ?
y 4idt 8ir, ^ that met at
SoL Gen* Pray Dame ihcm orer again vb©
they were ?
Porter. Sir Wdtiam Parkyns was Actually
there, and my lord of Aijesbury, and, sir Jobtt
Freind, and captain Charnock, Mr. Cook, atid
myself; 1 cannot teU whether my lord Mont-
gomery was there, or Mr. Goodman.
Att. Gen. Pray when did you see captatn
Charuock, or speak with him, after iliat?
Porter, It was when f was in priJion about
the riot, and he told me he had heen ilii^re ; but
there would be nothing done m that nmtter at
present for king James said, the, French king
could not tlicn spare so many men, though hd
thanked us lor our kind o6ff r : and he said he
had been with my lord of Ailesbury, sir Wil-
liam Parky OS, and the several other people of
quality, which he did not name^ end had car*
ried them the particular messages that he had
in command from the king to carry to them.
Att. Gen, Now, pray tell us, what yon
know about the desit^-n of assassinating tlie
king, and what hand the prisoner at the bar ws8
to hare in it ?
Porter, About some weeks before I keaH of
the assasaination, 1 came to lodge io the
bouse iu Norfolk -street, where capt. Charnock
lodged ; and where sir William Parkynslodgetf
when he came to town. Most comitioidy we
used to go in the evening to the tavern, or
drink a botde of wine at our own lodgings;
and one morning I asktnl Mr. Charnock, if I
should see him at night ? He said he was en-
gaged tu private company for that night, and
he could not go with me to the tavern, For^
says he, there are some gentlemen that are
lately come from France, and there is sume-
Ihing lu be done for the king*s service. If
there be so, says 1^ p^^J 1^1 ^^ be conecTnei) :
Says he, ihey are tut newly come, aud they
wiFl s«e UMbrtfly else hut meat present. A
little at^er I fefl sick of a fit of the gout, and
Mr. Charnock came to Tisil roe, and wc tell
into discourse, and 1 asked him alvout those
gentlemen that were come from France, what
they came about P He told me it was sir G.
iiarclty that came fr«»m France, and several
other officers with him» and that he had a
commission front the late king Jaiuc!^ lo levy
war againsit Ihe person ot king William^ or the
prince of Orange, as I thifik it was named La
the commission.
L, C. J. Who told you thi^ ?
Portfr, It wa-«* capl. Charnock r ho desired
|o know how many men 1 could bring. I do*
sired a little time to consider ; but I sititl there
would be a great many wuuld Join if the kin|^
landetL whom I did not think lit to Iruutt with «
thing of this nature befurp-hand. Some few
days al^er, capt. Charnock <tame into my
chamber, and brought sir Gin»rgf BarcJey, and
major Holmes that said he Mai» c^mie from
France ; and there we had lutle more but a
general iliscnurse : But a litlte aft^r tiiat I got
well of the gout, and we liail several uie«-tinga
at several places ; at the Glob**. tavern lU
HatioQ-gardtD, at the Nag '••head iaCuveiil-
w:i
8 WILLIAM IIL
Trial of Sir tVHOm Parh/tts^
Garden, and at the Sun in the Strand, tHiare
sir Wiiliam Parkyns was always present.
And there we did consult of the best ways to
assassinate the king, as he eame from Kicb-
■umd after hunting. Sir George Barcle^
said, he had receivra 800/. from king Jaines's
secretary towards the huy4og of horses, and
fbhiishing both horses and men for the expe-
dition ; and it was considered of how msny
aaen it ^oald be necessary to bring. The
Dumber agreed upon was aMut forty, of which
sir Geors:e Barcley was to provide twenty ; I
promised to bring seven or eight, sir WilKam
Parkyns engagH to bring five, whereof three
should be mounted with his own men, and
ihe other two my naen were to mount upon.^
Alt. Gen. Do you know the names of those
people that he was to mount ?
Farter, I never had the names myself.
Att. Gen. Well, what was done after these
eoDsultations?
. Porter, I asked captain Chamock one time ;
if I might not see the commission that king
James had given : He said he had never, seen
It himself, out sir William Parkyns had. 1
asked sir William Parkyns, one evening as we
were smoking a pipe by the fire-side, whether
he had seen the commission ? He said, he had ;
and that because kin^ James would not trust
any of his ministers, it was written and signed
with the king's own hand.
Mt. Gen, Pray did he tell you what it was
for?
Parier, He said it was for raising and levy-
ing war upon the person of the king, but 1 do
Bot know whether he called him king Wil:iam,
or the |*rince of Orange ; but 1 suppose it was
the prince of Orange.
Ait, Gen. Pray then give us an account of
yoor going to view the ground, where it was
■oost convenient to do the business.
Porter. There were several propositions
about the place where it was to be done ; one
vaa to be on the other side of (he water by
ambuscade in Richmond Park, the other was
to be on this side of the water after the king
was landed. Sir G. Barcjey was tor that that
was upon the other side of the water; 'I*
thought that it would take up too much time to
go over thither, that it was better to be done on
this side ; but because there was difference of
opinions, it was resolved upon that somebody
should be appointed to view the ground ; and I
SMS appointcSd for one, Mr. Koightley for an-
other, and Mr. King would needs go with us
lor a third ; and we three did go. We lay
all night at Knightsbridge, and the next day
went and viewed the grounds on both sides the
river ; and came back that evening to the
Nag's- bead according to appointment, where
eras sir William Parkyns the prisoner, and sir
George Barcley, and Mr. Chamock, and we
gave an account that we had viewed both
^cea : And upon our report it was resolved,
Ihat it should be done on this side of the water,
fa the lane betweoi Bivotford aadTunibMB-
Ait, Gen. Are you sure sir William P)
the prisoner at the bar, was there, at tha
ingatthe Nag's bead ^— Porter. Yes,
Att. Gen. Did be sgree to the resoh
Porter. It was in general agreed to
that were there.
Att. Gen, Pt^Yt captain Porter, tb<
us an account or the oays that were fi
the execution of this design f
Porter. There waa Saturday the 15
Saturday the 99d, because Saturday %
day the king used to go a- hunting and si
Att. Gen, Were there any men a
sington, to give you notice wbea the kit
abroad?
Porter. There were two men that
lodging at Kensington, the one was one
hers, wno belonged to captain Chamock,
other was a Fleming, one Durance, wt
over with sir O. Barcley, and be wei
day, and thrast himsdf among the gu
bnog intelligence.
Sol. Gen. What was the reason thi
was not executed?
Porter. The first day. Durance
notice in the morning that the guan
gone abroad ; and afterwards then
notice, that the king wouU not go abr
day ; for which reason we adjourned i
next Saturday.
Att. Gen. What waa the method yo
take in the execution ?
Porter. The method agreed upon vi
There was one Rookwood that can
France upon this expedition, he was
mand one party, and .captain Charn>
myself was to <M>mmand another |
attack the guards ; and sir G. Barclei
have four men out of each party to at
coach while we attacked the guards.
Att. Gen. Well, you say the first <
was disappointed by the king's not
When was the next meeting ?
Porter. The next meeting was upon
the dsy before the 22d. I was sick
week, snd I do not know whether 1 h
all the week, or no ; but upon Friday tl
and it waa at the Sun*Tavem in the
There was none but sir 6. Barcley,
Chamock, sir William Parkyns, and ]
Att. Gen. What discourse was the
Porter. Sir George Barcley came
said, he was afraid 3ie thing was disc
J told him 1 fancied not, for if it bad, w
not have been in that boose at tb
Then, says he, let us go on, and try
day. Sir William Parkyns was Bake
horses were come to town : He said tli
come to town that night. Said I, I ha
misfortune with my horses, two of t
fallen lame, and won't be fit for
Saya he, if I had known that, I cot
brought more horses out of the oounti
ssys he, I will send to Mr. Lewis, ^
gentleman of the botae to my lord Fei
and I believe be can help us to more
be will be with me to-morrow momic
High Treaion*
I m noltf ftoo Mm for two more. Id the
: I Milt ui hitii^ antl he stui we a note
I ta riMtont nty men : And he sent
|r* Le^i* could hel|i me to two or
that they were nil ihree sadctleil,
lacotKitredwith ttostlersanil pistoh,
' two bad only i^^ildlea. 1 did not
PftfkyDft on Saturday, the t^d,
m mtme of my friend », who were to
; wtih ftte ti|>i>a this enterurize ; and we
H oolicv tliat the guank were j^fonc
, Mil thai the king would g'o, at which
tcry fflftd : But when we had notice
^ «itf not go, we were afraid the
aavered, and I went out of town,
' Sd iMt mem way of them aflerwards till
> t^krti.
iu* Cn^ J*^y* cftptain Porter, have you
\imi mnj lUm^ from sir WjlUam Parky ns of
liilanog 9. eocninisfiion fmm ktnsr James ?
fwft^, I hav« heard captniti Cliamock ask
ttf^tein Parkyns, why he did not go alony^
iiA«ai this* expedition f He said, he did not
ft liaK« he could not gt>.
JtL Cm. Whs he not to be one in the num-
Ivttal was Ui act in the a8SA««i nation ?
fmier, S€\ ; he said he liad other businesa
tili,be liati a regiment to look after.
L C* X Horn inany horses bad yoa from
f'migw^ I bad never a one, only sir Wil-
Imi l^^rltytn «* nt nie wont, if 1 wanted I
H^kave tliree, for I had told him I would
^ theiit, tin 1 heard whether the
|Mt iliroaNl ; and then I had notice that
*^\ntt% go,
J' - mI you 8 note for them?
J for these three horses ; but
Cbia«i^^ ,mjtj tie had a note for two horses,
ffr*^ Old he fay he hud a note from toe ?
hti^. Ko^ ] don^t say so, sirVVjIJiam ;
talsaniiatiil me, he bad a note whither to
rWi«n.
^C. X Will you ask him any ijueaiiona,
I llrWiittB f— far/ryju. No, my lord.
hrfmm. My lonl» I desire he may be
iiii» WteJtcr at any of those meetinjfs
^■i «w any ili<cour«ie of the aaatasinatioQ
li«a tir Wilbans Parky na ?
Lex What May you to that, captain
Ym| he waaat all the meetings
afinn^
nv lord, I deaire to know^
. Purkyus die^ccHiraed of it
■ ' ■ ihout it?
^fr y what be did
i||aitjmiBr, niny he aj^retnl to it, and waa
^ ^ SfebcirMES for it, and »Bid it was ue>
Ir rff't-^- ' t-r it would brinif the
>r* ^li he could not per-
a, „ U:,uiMflf, hecaufie he had
he waa Uv look after hi^t re-
^ Gra. If air WilUam Parkyna wilt ask
•<*• hvtfr no «me«tinnn, we will go on to
^^oi 911000, wbich i« CQ* Abrajiatu Sweel,
whom Mr, Attorney iDeotioned. [He waa
brought in and Hworn.]
Alt. Gen. Mr. 8wect, will you give tht
court and jury an account, what sir Williani
Parky ns said to you atwut king James's
landing?
Alt. Gen. Pray, will you give an account
what discourse you had with tir William
Parky us, the prisoner at the bar, aliout king
James's returning and landing witli French
forces ?
Sweet, 8ir William Parkyn* did tell me,
that he did expect king Jauiek*s landing ; and
he«aid his own troop was composed of old
soldiers*
Alt. Gen. How long hare you known nir
William Parkins?
Sweet, This three years.
Ah, Gen. Pray leU the time when tlits dis-
course was. About what time was it ?
Smett. This was since Christmas, about
Christmas last.
Ait. Gen. Where was it that you had this
dj^c^iurse ?
Sueet. It was about his own hoose.
It' C. J. What diiconrae ?
Sweet, We were talking about king James's
comin<r.
L. C. J. Who told you that king James was
coming ?—-5«:eef. Sir Wilhani Puikyns.
Att, Gen, Wiial did he suy ?
Sorer He said he had bnught a great many
saddles, thirty sadilJes ; and that hiD own troop
was composeil of all old soldiers,
AtL Gen. Did he tell you of any assurance
that he had n\ king James's landing ?
Sueet. Yes ; he ^aid he had the kiog'd
word for it ?
Alt. Gen. Was there any discourse bet M-eeii
you about any journey that sir Wilham was
to take ?
Sweet, Yet ; he did tell me he was to go
into Leicestershire, and was to meet sereral
gentlemen in I#eicestershire ; and he did go,
and after he came back again, he «aid he had
met his friends, and all was well, and that the
west was as much inclined t^ king Jameses
interest us the north, and that a Lord*s brother
was concerned,
Att, Gen. What other discourse had you
about this matter ?
Sii?eei, Nothing eis^t as to particukrs , that
I can remember.
Ait. Gen* What orders bad you to come
up to town in February, and when, and
from w hom ?
Sweet. Sir William Parkyns sent forme,
and he sent me a letter about the 11th of Fe-
bruary that I should come to him the neict
day ; and I diil come the next day.
Att. Gen, Whither did you come? Where
did you find him ?
Sweet, At his lodgings in Norfolk-street, at
the house where Mr. Chaniock lodged ; and
after I had spoken with sir William Parky us
about the letter which he had sent me to come
up, he told fixe, that ibe busineas that he bad
91] 8 WILUAM UI.
designed for me, he did not think fit I should
do, because of ray family.
AU. Gen. Pr.iy, what directions had you
fipom him, what you were to do when you
went into the country ?
Sweet, When 1 went into the country, be
ordered me to go to his house, and send up
three of the strongest horses.
Att. Gen, When was this, do you say ?
^weet. It was in February.
Alt. Gen. What time in February ?
Sweet. The elefenth or twelAh, which was
Wednesday ; and at my going awav, he told
me if i had not a letter from him the Friday
following, I should, come to town affain. 1
did come to town agfain, and then he asked me,
if I had made provision for my family ? I told
him, no ; then he asked me, why 1 came up
to town? He told me I might go into the
country again on the morrow morning.
JLC.f What did he tell you f
Sweet. He said 1 might go back again into
the oountrv. I came upon the Saturday
morning to nim.
Att. Gen. Pray, what day was that Sa-
turday ?
Sweet. I belief e it was the 13th or 14th of
Februaiy.
Att. Gen. You say, Wednesday was tlie
twelfth ?
Sweet. Yes, I believe Wednesday was the
12th, and I came to town the Friday afW that
13th, that was the 14th, and on the Saturday
I went home again.
Att. Gen. You say vou cams to him on the
Saturday morning, what passed between you
then?
Sweet. I went the next morning to sir Wil-
liam Parkvus's lo4lgings, but he was gone out,
and had fet't word, that 1 must come again
about eleven of the clock : I did go about that
time, and he was nut come in, and there I met
Mr. Chamliers, and one Mr. Lee, whom i had
eeen there the niulit before.
Att. Gen. And what discourse had yon then
with them ?
Sweet. We had little discourse, for I bad
only seen them the night before ; but I think
Chambers toitt me he had been at Kensington,
and I desireil to know what news there ; and
he told me William kept as close as a fox ; and
he shewed me his wounds, and said those
wounds wautetl revenge.
Att. Gen. Where did he say he receifed
those wouuds ? — Sueet. At the^oyne.
Sol. Gen. Pray, Mr. Sweet, did he tell you
for what use his troop was ?
Sweet. He did not tell me positively ; but
I understood it to be to join king James when
he landed.
Sol. Gen. Pray, Sir, where did you dine
that Suiurday P
Sweet. With sir William Parkyns, and Mr.
Charnock, and Chambers, and one or two
more that 1 did not know.
Att. Gen. Will y ou aik him any quettioDe,
aic WiUiam P
Trial qfSir WiUiam ParJcym,
[H
Farkym. Did I tell you, Mr. Sweet, that I
had a troop of horse ?
Sweet. I will tell you your own words, and
no other : You said, vour own troop was ooa-
poeed of old soldiers r
jL. C. J. Pray let me ask yon one question |
How many horses were you to bid the mante
bring up to town ?^ Sweet. Three, my lord.
Att. Gen. And were they not his strongHt
horses ? — Sweet. Yes, my lord, the^ were.
Att. Gen. Did he say any tbmg to jea
about volunteers ?
Sweet. Yes ; he said there were some fn»
tlemen that were captains and old officers thil
would be volunteers under him.
Farkjfnt, Pray, where were those
spoken f
Sweet, Either in your house or in the {
I cannot tell directly which, but Btnm
about your house it was.
Purkym. Where is that house P
Sweet. In Hertfordshire.
Farkynt. Then I am in your lordiiiip^
judgment, whether words spoken ia Hei^
fordshire can be an evidence ot a treason edai
here in Middlesex f
L. C. J. Sir William Parkyns, if there he ■
design to kill the king, and there are aevml
overt acts to prove that design, and one ie ii
one county, and another is in another ooaefefi
the party may be indicted in either of tM
couuLies, snd evidence may be given of httk
those overt-acts, though in several conntriik
It is true you being indicted in MiUdltiH
makes it necessary that some evidence ihnnH
be given of some things done in Middlceev,m
there is ; as your meeting at Mrs. Mountioy%
and at the Nag's- head in Coventgarden^ eai
the Sun in the Strand, where were seveml ew<
suits, which are overt-acts of the same treeseo ;
and if treason be committed in several counlia^
the party may be indicted in any one, and Ihi
evidence may be given of tactH done in all. *
Farkum. Then, Mr. Sweet, you do not ny
that 1 had raised a troop, or would raise i
troop.
Smut. I told you your own words, thU
your troop was made up of old soldiers.
L. C. J. But yet I must tell you furth«,
sir William Parkyns, if i remember ritffat
there is evidence given of ft discimrse you 1wi
in NoHolk-stret't, where you loiiged, and thai
is in Middlesex.
Farkym. My lord, I did not obaerre ibel
he said any thing of me about Norldk-streeft.
Att. Gen. Yes ; that is what he says : Yol
told him you bad thought of a buauuese fei
liim, but you would not engage him in it, b»
cause of bis family.
Farkynt. Pray, Mr. Sweet, did I tell yee
any thiug what yon were to do ?
Sweet. No, Sir, you did not
Farkyn*. I hope the Jury will take
* Seethe fourth Resolution in air Hemfy
Vane's Case, and the Note to it, vol. 6, p.
183, of thil CoUectinQ,
\Jbr High Treoion^
lUfin aoy thiug that lie
), I bat iras no pfreal matter,
iini any more que^tioos, Sir ?
m9r next wilneat is James
ho vnm »wom,)
Do vott knuw sir William Par-
llo
I
he IN luy matiter,
<»rr»anl w«s you to liim f
gruoiu to him.
%imfi have yini be^n Lis
Krjt [! t^i^elvemonlU yet.
o an accouQi what
i jeiceslcrshirc* with him.
us vfhiit YOU know of
^ Yei, mr (anl, we t?ent from our
pt lo Stony*Stratf<iril» and there we
WIrti lime wa* thisf ?
rmnnot tell tlie day of the month,
IVbatday ofUie week waa it f
it waa on a Thursday .
Aod ivhere did you go from
fm €ua^ the next daj lo LeU
^MMlm ii^nt with him ?
^iDbe ca|*tato Scudaiuore*
ML Hciw long did you tarry at Lei*
WWn we came the oext day to
wm staid (hrre till Huoday morninf*'.
What company catue to your
\ hm WMA at Leicester ?
I am a atran^erf 1 know none
fyer there before.
I yciu remember whether there
ttgli there?
fli«re waj one that said his name
Wlienee did he come ?
k. He Mid be came out of York-
lm« Whn came with him ?
I^TIii>re wai a gentleman in black
^■piid he was a milliliter.
^Kl>id yoti obierre auy others that
Kcr to your master ?
t^ It wa« market day, and i had
^^ look aAer ; there were a yreat
^B^nit up niiii tUmii stairs; but
H^ V or no, I cttooot tell.
HT come baek ag^uin ?
||f \\ r MAID iiii're tilt Sunday muni-
ilMB W€ €»m« a way.
To what jdace did you go that
• ti9WD called BrickhiU, and
J wm caowr home.
FliiQ cwne back with him ?
• ti«i caf»taiii 8cud«uore, who
f liillMr did yoq gt> the next day f
Eubank. We came to Bushy about 8 o'clocll
on Monday ui^ht. t
Aii> Gfn. VV'ell afler this, did you bring up
any horses to the Georrre-inn to your master,
and when ? — Eubank, Yes, three horses.
Att. Gen, Ay» when ?
Eubank, I emmot u-ll the day.
jiU. Gen, What day of the week was ft ?
Euhnnk. IJjfon a Friday,
Ait. Gen, What month was it in?
Euhank, ludeedf 1 cannot say that.
Alt. Gen. Do you remember Valentine'i
day '^^ Eubank. "Ves; it was upon that day,
Att. Gen. That is the 14th of February, a
remarkable day, and wa^tben of a Friday,* the
day betbre the* assassination was to have been
executed. Whither did yon bring them ?
Eubank* To the George -inn.
A£t, Gen, How were they furnished? Were
there pistols upon them ?
Eubttnk. No ; the pistols were in town, and
the horses were sent after my masier.
Att. Gen, Where were the pistols left?
Eubank, indeed, I don*t know.
Att. Gen, Pray, when you came to town^
did ^rou 1^0 to your master, and acquaint htm
with kf^Eubnnk, Yes, Sir, I did.
Ait, Gen, Pray, what did he then say to
yon P
Eubank, He said be thought he should go
home that night.
Att. Gen* Did he chanispehts mind ?
Eubank. Yes^ tor he did not go till Monday.
Att, Gen, Did he tell you he sbuuht go a
Saturday ?
Eubank, Yes ; be saki he thought he should.
Att. Gen, Did you come to Ixim to know
bis mind, and wbat^jdrthUe say ?
Eubank. He safd in the morning, he would
go in the afteeooon ; but fie did not.
Att. Gen, Afterwards* when did be go ?
Eubank. Lfpoo Monday,
Att. Gen, Who went with hJra that Monday ?
Eubank, One Holmes, a fat, thick man.
Att, Gen, Well, pray when did you come tt
town Rgain ?
Eubank, Upon the Friday following.
Att, Gen. fiow many horses did you bring
up then ?
Eubank, On the Friday following we brought
up four; my master himself came up with
them,
Att, Gen, Whf» came with him ?
Eubank, Me, Holmes, and I, and another
servunt.
Att. Gen, How were the horses furnished ?
Eubank, Every horse hud pistols.
Att, Gen, W'iml did you bring
W^ere there any boots?
- Eubank, None but what we rid in.
Att. Gen. Where did you leave »ho«e horsei ?
Eubank. At the Geortri*-iim in Holbora.
Att, Gen. What directiun(» did your master
give you that ni^ht for going the next monung
upon an errand, an«l whither?
Eubank. 1 had no message from him ; bnt
there waa a note that I was to carry to Kcii-
beaide?
t
OVQOTM to
ofieeriD
OS] 8WILLIAMIIL
■Injltmi to «!• Bnwm; and I WW
ffo w the gentlmiftn that livet withiD a door or
two next the going i>^ ^he kiiif'i ({ite, I
Ibrfot bit nome ; bat tMo nmm where Brown
lod^ betofn|r«| to the coort,
the kitchen to the king ; either
or eook, or something ; and thii mu lay there.
Ait. Gen, Whal was voor mcMage to bin f
Eubank. I was to tell him, that I cane to
speak with one Brown, and that I came from
a gentleman that lay at the eonfectianer's in
Hoibom, over against Gray's inn. 1 know the
gentleman by fmee again, if i see him ?
Att. Gfn. Well, what did he say to yon ?
Eubank. He bid me ssl my horse at the
Ked Hon, and he would come to me presently ;
and i^he did. Says he, I have no bosimM
that I need toseod ; btH I will write in your
almanack, and yon may carry it back and
shew it him, that f will come to town betwixt
•ine and ten o'clock. I did go back and tell
that gentleman at the confcctkMier's.
Att. Gen. What kind of gentlenna was it?
Eubank. A Innty man, with a great nose,
and a Mack «iig ; be speaks broad Seotdi, and
be wan a swarthy cokmred man, and he ImmI a
wid^ month.
Ati. Gfn. What age was he of?
Eubank. A middle aged man.
Att. Gen. Pray, what did he say to yoo ?
Eubank. He asked me if I had seen the
gentleman ? I told him, yes. He asked me
whst the gentleman returned for answer? I
toM him, he had writ in my almanack, which I
hsd «h«*wn him, that he would be in town be-
tween nine and ien o'clock. He asked me
then where 1 was going ? I said, to my master.
Hujn he, tell your master that 1 will be in my
chamber ready for him.
Alt. (>rn. l>id yoo go to voor master, and
tell hini ^o?--- Eubank. Yes, I did.
At*. Gen. And what did he ssy to you ?
Eahank. He Rsid lit* designed to go home
ill the snertHMin, ami therct'itre bid me go to the
inn. and make resdy the horses, ami know
wbnt nan In pav lor iliemf and he would come
hx nnd livelhttlier.
Att (tr*i. nulliesOvrwanlscometotbeinn?
f>'-.i«iA. Yr4. Nir, about three or four
•'clock in thi' nOernwin.
S-^ Urn. IVriy, who came with sir William
rs!fcT»«* — Fhl'ttnK. One Ijewis.
A*'* f»V»f |1ii vtMi know him?
f'H^ti\ I lisve«ern hi lu before with my
nt3«ler
Att I'-: What i« he ?
f-'f"*-*. The J *uy lie i« my lord Ferer-
thsiit*« ^^vnlW>n»An
.4 ' : t • ' •« H hat iltil he nav lo vou about any
sml.iif-i •
l!'Ki>.r^^ fh^t i<k»*d me what laiidlcsi* and
hew \%*%if\ bail V«^M wnt in there * \ad I laid
b«l tw«v
.Iff. tV<« U hrti <«M Mr L«w«?
iMAkVi bitraww mv
IMMNI^.I*^ |i^ hlf
VMM iIamiM I« nrmiiv -iirar
TrialafSir William Parkins,
Att, Gem. Did be :
Pkrkyoa?
• £iiA«iA. Itwas Mr. Lewis that saki
twenty-ibur to the best of my rci
bea
a J ao, or sir W
^t. Gen. Where were they sent ?
iuAsji*. Indeed I koownot,!
any of them hot those two.
^^ Got. Who deUrered those two to
Ewbmmk. My iiiasier,sir William Pferk
Att. Gem. Who were those saddles for
Eubank. They wers for two gentlci
hones that were there.
Ait. Gem. Whose horMS were they ?
Eubank. They were not my master's
they Stood at that phK;e.
Att. Gen. Did yoor master erer spei
yoo about them, to hiok aOer them ?
Eub. He aaki, if at any time I was tb
shoukl sao that the hostier gare them
Att. Gem. Were they yoor master's \u
ornot?— &I*. Nottlmtlknowof.
Att. Gem. What tkne did yoo go o
town?
Eub. I went oat of town with them i
four o'elock m the afternoon.
Att. Gen. When did you hear from
master afkcr that?
Eub, Upon Monday I had a letter firom
Att. Gem. What was that letter ibr?
Eub. It was to go to my master'a boa
Warwickshire, to one Richard Erans tha
his serrant, to whom he sent a letter.
Att. Gen. What were the contenti ol
letter?
Eub. I did not see what they were, j
sealed.
Att. Gen. Did you carry that letti
Erans?— £a6. Yes, I did.
Att. Gen. What time did yoo come thi
Eub. IcametbereaTuesdsyatfburo'i
Att. Gen. What did Evans and yoo do
you had read the letter ?
Eub. We went to fetch some boies tht
master had ordered Erans to fetch boim
was about two miles, or more from booM
tradesman's.
Att. Gen. What was his name, was it
wood ?
Eub. Yes, f think it was something lik
name.
Att. Gen. Did yon eo with Erans to
the boxes from th«Dce ?
Eub. They had a man that dnwo the
to t'eicb them.
Att. Gen. Where they carried in a
then ? — Emb. Yes, they were,
Att. Gen. Wtre ytm these when the
were brousrht beck? '
Eub. Yes, I was at my nus«er*s hoosc
Att. Gem. What did t&ey do widi ihev
EfLb. They buried them in the i
A(t Gen. 'What, in thel
Eub. Yesk S«r.
Att. Gem. How ssan
£ad^ Five er tti, I lU^ I te
wvuithem. 9
An. Gem* Tau lieTp^ to bury iLem, ditJ yoQ
M N« ; boc I WIS there, J nw them
in. Cem. Did £tins teU yoa wlttt they
£ci. Bt«iit U>U] me 1 bey wer« choice goods.
Mi. Owm, £f am toJd you so, did lie ?
LC J. WIl&i timeof the day or ntgfii were
Tkfy *^nt a«r»y about faur o'clock i
LCX How far is it from «ir WtJiiam Par-
r tf> HaynroodV?
'Eak I tbtok atHitu tliree or four mUtSy J
t iHI Wvir far cuactty .
LCX Wlxskt tjfue ittrj they retom ?
&I* Alioul t^nor eleven o'clock at night.
ahfwmmm^ My luftlf t under eta ml he sayi
tafir^ tlirTfi inirn^fliitely; vfashefhvrey
N«, A -Mo bury them; but
pot upon them.
C*ai. Pray, EuUanki let mc aak you
lli« person that lay at Ihecontec-
I yen oMerre wbetliur he h«id a lame
£^. No, I did not take notice of any gucli
fd. Oem. Will air Waiiam Parkynsask him
■ffMaiioii.?
L C. J. Wlwt fay yoti, air William, will
jmmk him »nj que«tion^ f
PM^i, Voo aay one Holmes wettt out of
i^i vak BM? ; pray give au account what
BAMAst LB?
£iA. flM fat Mr. Hohnes, if il plaase vour
^^■i^lt Irras at ibe Golden Key m tfol-
iyhm. Ify lord, I olwerve this to dtatin-
f^ n, that 'H was iiol, as Mr. Attorney
i|a|al it, tnmjoT Holmes (hat is in the proclii-
li waa t*t\€ that used to beat my house
r ; be wo» m ray house all the siiromer.
sen, Vou dii! well to ask him that
Ui ■ ' . it.
.C J auk him any more quea^
■ f — Pt.* K\f I. Sn^ my lord.
Orn. Tli*Ti our uext witness is one
y 11 ipwrlV . ( W ho was sworn . )
Ah. Cra- Wbi»re do you li?e?
Hip *t io Warwickshire*
A*' lb whom ilo you live ?
% wyaelf* »ir,
in, OtM^ i>o you know of any goods thai
^cvfM Ifnoi'Mr. Haywood^b house to hir
^&am I'fcrkyaaV hoiMe ?
1 mmtm lirMB LilchfieU fair upon Asli-
by, wlicfe 1 liad been to carry goods
^WL Gck. Did not joo my yon lived of your-
^ I Mked y0ii liJbr^^wboyou lived with ?
%
rP— B
t
Ir. Haywood.
Ymi fttd TOO bad oo master.
. %. T¥i(t ii, wlMa M pleiieita«ii|iloy
|l *•* far bin^
me.
Alt. Gen, Pray tell what yon carrieil from
Haywood ^fi house, and who came for them ?
Mif There were, to the best of my remem-
bratice, either seven or eight boxes,
Jtt. Gen, W h o ca rue fo r I hem ?
Hip. There was one of sir William Parkyns'a
men, one Richard Evaos, that was hiii servant^
and one Whetstone, that was tenant to sir Wil*
iiam.
Att, Gen. Well, how did tliey come, and
what did they do?
Hip. They brought a ^^^gt>n and two
mares.
Au. Ctn, About what time was it?
Hip, It was about nine or ten o'clock at
night when Ihe^ weut away.
At. Gen. W/hui orders had you from your
master ?
Hip. It was near upon seven o^clock, when
the waggurt came, and toy master wished me
to go to borrow a mare of , at ; 1 did
so, and 1 brought the mare 1 bad borrowed
with me home.
Alt. Gen. What was that mare borrowed
for f — Hip. I know not.
Att. Gen, What use was she put to aAer*
wards ? What did \ou see more ?
Hip. Why, belore the team came (about a
quarter of Buhour before) to fetch these goods*,
my in aster told me, that sir William PniKyns^s
men were to come to fetch some betiding and
other g^oods, what they were he knew not |
ami he ordered lue, when ihey knocked at the
gate, to let them in ; and I ifjd ^o.
All. Gen. Well, friend, did they carry away
any goods, and what were they ;-*
Hip. They were in boxes at first* in Uirae
boxes ; and then sir Wilham Parkyns^s serrant
did knock off the outside lining, which was a
deal board, and he drew the nails, and took oat
of two boxes thi^e boxes a^piece, and twn out
of another: to tlie best of my remembittnce I
tliink there were eight, but I am not sure whe-
ther there were seven or eight.
Ati, Gen. Did they cairy them away that
night ?
Hip. Yes, fdr Wra. Parkyns'sman Htchart)
and the tennnt earned them to the wn^rmn, and
I hghted them down with a lauthom, according
to my master's order.
Ati, Gen, When, what day was this ?
Hip. It was Ash- Wednesday nt niyfht.
Ait. Gen. Then set up Mr. Haywood, (whs
was sworn before). Pray give my lord an ac-
count, when sir William Parky ns's goods wero
brought to your bouse, who brought them, and
what dii-ecllons were given akjut the careful
keeping uf them.
Huywitod. My lord, about Miclmehnat lasi,
sir Wj Ilia in Party ns'S man came tu me wiih a
knier frofo one IMr. Chumock, and tlie effect
of the leiter was, to desire the favour of me to
lodge some goods of sir William Parky ns at
my house f for he was taking his servaiits frfuu
his botise, and he was lotb to leave hts goo^ls
in an empty bouse, and he desirfd me to let
thorn he at my house, which I did,
U
I
m] 8 WILLIAM IlL
Jii,. Gen, How were they put tip ?
Hdj/umuL I think in three chests » pt'^^y
h\g chests, niiiled up aod tacked ; and there wa^
ft &<1 aud beildiDg, and a piece of tapestry or
i«o,
Att. Gen, Pray, did that letter come from
Mr Chartiock F^^Zfo^ztoo^. Yes; Evans, iir
Wilhain Parky ns^s maoj broojjhl it me.
Alt. Gen. Pray, &^ir, hnw are you relat(^d
to that Mr, Charnock ? What kin ishe lo you ?
Haywood. I marrieil hi^ sifter,
L, C, J. YoLi took the goadt into your coi*-
tody upon that letter from Charnock f
llajfw, Y^es, my lord» I did.
Ail, Gin, Pray, nillyou^ive anaccounif
whether y<^\\ were in town hefoie this disco-
very« and had any discoui'sp with Mr. Charnock
or sir William Parkyns ahout these ifOi»tls?
When did you se€ Mr, Cliarnock afterwards?
}lai/u\ I came up to Lcnidt^n the loth day,
and Twos iu London the t7th, IBtb, and 19th;
I think those three dnys* ; and L went to see
Mr. Charnock at hi^ lo^t^iti^a, hut i t%»s hardly
with him a nuarter of an hour ; I told him sir
William ParKynn had sent some goods to my
houstf, and l'de:»ired to know wlien he would
fetch them away, 8ays he» I caimoi say when
1 shall see him again. 8aiil f, J shall have
some business at i he Temple, and I will meet
yon at the Temple coffee- hotn*e. Say « he, I
will meet. Am hrinf^ sir WilUanj Parky ns
with you, if you cnu, said V. He came at)Qut
eight or nine oV^Iock otv Tuesday morning ;
says he, sir William Pai-kyns is at my lod;^-
ings, just a-i^oin^ out of town, and wolild de-
sire to ^ee you. 8o I tvent up, and ah WiUiam
Porkyns was ready to ^o out of town. I totd
biui [ hnd some goods of hi4 at m) kouf;e« anit
1 deaired to know how he wovifd dis[»os€ of
them i what he wouht do with thejn, lie
would tuke them away* he said, the tirat op-
portonitv, or to tliat effi^ct.
X, C/J, When w as this ? Wliut month f
Hayw. U was tn February last.
L/C. X What day?
Hoifw, I think it might be about the eigh-
teenth day.
L. C, J. It was you that deiir«d to have
them taken away, it seemSf was it not ?
Hayw, 1 asked him when he would take
them away, or what he wouhrdo witlt them.
L.C.J, And what answer did be make f
Hayw, He aaid lie would take them away
the first opportunity, as soon as be could dis-
pose of I hem, or to'that effect.
Ait* Gen. Now, wbr>n you came home, tell
us who came tor those goods, and when ?
Hnifw. I think it wasi upon a Hhrove- Tues-
day that I came home, and my wife naid sir
W^ilham Parky lis had sent tor liis goods, and
deijiied to have them away } hut that she had
made answer, 1 was not at lioine, but should be
at borne so-on, and then he might have them
away. The next <!ay I came home from
Litchfield fair, ahout live or six o^clock at
oigbt: It waa Ash Wednesday at night when
I came bome, and the luau came to me be-
Trial of Sir fVUliam Purkjpis^
[W
tween six and seven, and told me his
desired to have the gofiils away. I told
he mii^^ht have them w hen he would ;
he would have them away that night. ^
him it was an unseasonahte time : hut, tiyvi
the waggon is a- coming, and I desire f
would give me leave to take them away ; m\ '
I did : then he said he had but two honjc^
he dcsii'pd me to lend bim a horse ; w hm
did, and he took the goods, and went away
tbcov ; hilt for wliat he did at\erwards
them, I know nothing at all of it.
Sol. Gen. Then swear Mr. Wh^
[which was done,]
Ait. f7f»» Pray, Sir, do yuit giie aii
count when you went with Evana to Uj
wood's house, and what happened.
Wh€titoj[}€. His man came to me-^
AU. Gen. Whose man ?
Whcttionc, Sir \V)niAm Parkyns*!
desire me to go to Mr. Hay wood *s
Mime goods of sir William Parkyna, soi
dmg, and some odd thiui>9, which 1
said he, 1 will gr» the next way to tba
and 1 w ill meet you (jeforc you can get
and be did meet me half a mite off tbe
and toUl me I musit slay, and not come lo
bouse till it was niglii, till it was later.
L. C. /. ^V ho told vou bo ?
Whetiion€, Str William Parky tis'a man
me so ; so be went forwards to the gfate,
then came tiuek, and called me to come
tlien we went to the h^use, and loaded
waggon witti hoxes and beilding that wii
Aii, Ofn. How uiaay boxes were tf
Whtihione. I cannot telt wlietber thi
seven or ci^ht.
Att. Gen. Whither did you carry theiof
WheUfone, We carried them lo air WiHi
Parky n'i'i iioii<ie.
Alt, Gen, Whiit was done with them?
Wftfitlune. There they were put into
grmind by the Wiill snlc, where they
found.
Aii, G«n. Why, w as you present w hen
were found ?
Wftit stone. Yes, I saw th*>ro dug up,
Att. Gen. Then you can give ua a a
of them : Wliat were they ?
Whtisione* They were arms.
Aii. Gen, How many were there? Wl
quantity ?
Whemone, Truly, I cannot tell.
Mr.BoAer. Where is the constable, Tbi
Watts?— H'^flf^*. Here am L (Uewasswofl
Att, Gen, Are you the constable ?
Waiti, Yes» Sir, I am tbe con^atahle,
searched sir William Parkyns*s bouse,
upon aearchtug in the garden 1 Ibund
arms there.
Att. Gen. Pray whatqaantity of arma
you find there ?
Watt}i. Four dozen of sworda, thirty-1
carbines, tweoty-flve brace of pistols.
Att^ Gen. W'hat kind of swords were th
Wolii. They were bro»d « words, tw«»-€d|
aworda.
Jbflt High Trea^m.
Wefc there any hilts to the
ITaflt. N't; bill ther^ wna a box of hilts
ito I suppose iva^s pre|mred forllieiTi^
jl*l. Geo. Where did you find iheiii?
T^iU, In ji border under the wall by the
•ft. Did yoo see the boxes broke o^jen,
\^U, Yes, Sir, I took Ihem and broke
I o)ien my o^^n self.
KryfiKiiv* 'iVas Whetstone by, pray, Sir,
I they were broke open ?
f«tij. He virus not tliere by at the first,
E dttj^ tbem up; bui 1 brought iheiii
»D house, and there I broke tlieiu open,
^ we snw them.
, O^n, Will you a\k him any questions,
rWili^m? — Pitrkim. No, 8ir,
SoL Otn. Then c^ll Turton» Freemai),
PrHfry (Who were dl sworn.)
AiL G§n^ Pray «et up Mr. Fre«finan.
^Wlicii Witt done.)
da, Gtn. Where do you lire ?
X\ ibe George Ian iu Holbora.
ra». What are you ?
I am hostler there.
Gen, Prny do you g'ive an account
bonei ^erekept there of sir WilliaRi
fit^ Odd bi)w many*
IWiiMiv. He was a ^ue^i to the house all
^ Itot mumm^t sometimes more, sometimes
Mt Gm^ How was it last winter about
F^Arwf Usi, how many lior^es htid he then ?
~ an^ He bad sometimes three i*arae in,
\ four I the most that ever he had uas
Ail Ora. What time was that that he had
n. To my best memory, it was jast
belbre ihe disturbance, before the
ke out.
IM, Gen. Before the proclamation, you
an?
itmmn. Yes, before the proelamntion.
J I, Gtn, When was it P What day of the
kit?
aii. They came in on Friday night.
LJ. Hiftt. Ubat-j did five come iu then ?
Vcs, J thiuk 50.
. C. J. JfoU. Who was with Itirn ?
u. i only saw his ^roooi and auotlicr
, Oe^ Huw were they accrtulred ?
A ^41. Fi>or with holsters and small
on<*^ was a ltd mare with a porturan*
mm! in a hor!>e cloth wrapped up tiiert-
VIS one oriwo pair of jack buots and, 1 think,
a eallar is ooe ; 1 cannot letl whether there
•at one imdle or two.
Att* Gtn, When did they go away ?
^rttman. On Saturday in the alternoon.
An, Gtn. Did you obsf i ve any pers4>ns to
eMBe there ou Saturday morning f
§n€nan. There were two men that were
llMBVtthu ml out between two and three hours ^
A- D. 1096-
[102
they rid out between nine and ten, and thejr
came in again between twelve and one; where <
they had been 1 cannot tell ; but they had nd ,
preity hard for the urae they were out, for tUe
horses came in in a sweat.
Att* Gen. Bet ore this time that you now \
speak of, what houses came up ? Can you re-
member how many horses came up the week j
before ?
Fryman, The week before there were some, ]
but how many I cannot remember ; they ▼cry-
rarely stayed above a night.
Ati. Gen. What do you know of any other \
horses that were left there P
Freeman. There were three horses that were |
at onr house a week, that were very gwwl ,
horses ; but 1 do not know whose horses they I
were, nor the names of llie (gentlemen that!
c^wneil them. The gentlemen that bronghlj
ihetn in (raid for the horses, only the g^rooo
told me his master, sir William Parky ns, badj
ordered liim to see the horses fed. i nevef i
received a farthingf of sir William Farkyuir]
but alwuYSof the^rroom.
Att. Oen, Pray, did you obserre any parti>.
cular hor^e that was brought in there, a roan
horse ?
Freeman, Yes, there was oue hor
brought in.
AU. Gen. From whence did that horse
come ?
Freeman, As was told me, from Moutilag:ue
housi*.
Alt. Gen. I believe you mistake the place |
recotleci yourself a little.
Freeman. Somerset bouse, I mean j a port«pJ
brought it.
Jtt, Gen, Are you sure it was Homera
house? — Freeman. Ves, it was,
Att. Gen. Do you know one Lewis ?
Freeman. 1 do not know him ; perhaps th^l
tapster does.
L. C. J. Holt. How many horses came from
Somerset house ?
Freeman* Only the roan i^eldin^, and a
very fat man mounted him, and rid out with
sir William I*aikyus.
Farkt^m, Pray, 8ir, what sort of horse was
that buy ^Idiug that you say the fat man rid
upon ?
Freeman. I say he rid upon a little roan
gelding about fourteen hands high.
Farkjfnt. But the bay gelding, bow high
was that ?
Freeman, About fourteen hands high.
Purkyns. There's your mighty borae for
service I
Freeman. They were no great inzed bo
none oClhem.
Parkins. And have not yon known these
horses lo have been mine a great white?
Freeman. Ves, I have known tbeni to b«
yours a good while.
L. C. J, Hitft, What, was the roan geldinf ^
sir William Parkyns's?
Freeman. No, not the roan, but the others;
iliey were oo ftriBfe liorsei^i^^ nvt^ S.\^^
8WILLIAMIIL
^wtfljr Acre all hift muiii ; tiMrevMBO
■cwriuange bone bat Ibe roaa.
L. C. J. Hot. Win yoa adc bim aiy Mie
^■frtiong?— >PT*ym, Bfo, nrloffii.
&/. 0». Tbco icC op Mr. Tiiitoo. (WUeb
kmnr or bonn'that were rtaading al
TrM^Sir WSBam Parkynt^
An. Gem. Fmr will j^m fire as aeeaont
wbatyoo know or bones thai
tbe Cicorge Idd is Hotborm ?
IkrUm. I bare knowo sr WHfiaaa Ptfkjns
to bare oic4 tbe iao tbii fbar or fire yean,
ercr since tbe inn was boilt; and in last Pe-
bmarj be came to town witb tbrae hones tbe
finttime.
Alt. Gem. What daj of the month was that ;
Tmrtom. I cannot nj what day ofthe ODontb,
hot it was about the week bdbre bis bit
eominf there, which was joit before the dts-
coveryAftbeiilot.
Ati. Gem, Do yoa know what day of the
week it was?
Turtm. No, truly I do not, for I fceef no
aceaaat of hones goin^ in or out. The last
time of bis coming was witb aboot Ibar or five
hones to tbe bestof mv kaowlcdfe, aodtfaat
was aaoa the Friday before the Hot broke oat ;
aod then upon that Friday, sir William PSv-
fcyas gave order to bb groom to gat the *
ready against 8atarday morniiy.
Ait. Gem. Did he go om wiib bio
Saturday BBoming.
Tmriom. Ue&td not eo oat with afi the
hmati according as he nad
two genilemea rid oat with two of the
and staid out about two or three boon, and
caoM in again, as if they had rid pretty bard,
tbe hones being in a sweat; and rathe after-
BOOB thi-y all went &irly ootof town, and gave
not that they expected to be ia town on Son-
day or Nomlay following, bat they did not
mom ; hot thoa came dmra one Mr. Lewif , I
know not that that is his name, ool;
formerly bekmgod to my lord of '
knew him to be gentleman of the bone to my
lord Fercrdiam, but I did not know bis name.
Alt. Gem. Had yoo not aeen him there be-
fore : Wbattime did become?
Turtom^ I do oot know that 1 ever aaw
him there before ; be was on Saturday in oar
^ard.
L.C. J. Hoii. Yoo are asked when Lewis
came?
Turtom. Tbe first time I see him was on
Satorday, in tbe yard, asking fiw sir William
Farkrns.
L.'C. J. Holi. What time on Satordav was
that? ' I
Turtom. It might be three of tbe dock in tbe |
aAemorm, aboot ao boor or thereaboots befon J
sir WiHan Psikyns's horses weot away ; and |
asking for sir William Pkrkyns, and he not !
Wag there, he retnroed back again ; and after '
tlmy were gone, ha caaieagam,aad 1 toM him
; hot the groom had
to cwpDre if sir W^uEam nu
were cobdc to town ; I lold him n
so be caoK again upon Monday momi
twist eight aid nine of the dock, and asl
if I hem nothing of hia coming to toi
tald him DO, I did net bear of his coming
Att. Gem. The horses that came op <
day night, bow were ther accoutied ?
Tmrtrm. Two or tbree'of them had h<
I cannol say bat for pistols they had
firecasr.
Att. Gem. Had they no carbines?
Tmrtom. No ; hot ooly horse pistols.
Att. Gem. Did you oor obserre anj
anns, or other famjtnre ?
Tmriom, I did see a pair or two of
boou that they rid in,bat I did not sc
Att, Gem. Were there nay that were
op in a bone-doth ?
r«rfoa. Ko,I did aotaeeany, ther
not broogfat into the hove.
Mr. CSwpsr. Do you know what tn
hann were aaddled that day ?
Jkrtom. No,ldidBOt.
PaHbvas. Yoa obaerved, aod said ther
a«or piBmls,didMla
IWfsn. Yes; yoa
two or three pair whea yoa caioe
ParAyas. And as to tha jack-baats, ye
we rid m them.— 7Wfo«. I soppose aa
PaH^as. We abghled at Mr. John's
ly wheal
Oxfoid, I
mere small honm all of them ; pny wj
tell tbe coart what siaed horses they
was there ever a great borse among thea
Turtom. Nereraooe, 1 believe!,t&te»
above fouiteen bands and a half, aome
fourteen.
SoL Gem. Did you see the roao gdi
What size was that?
Turtom. A small pad, thatoi^tbe
thirteen and a half.
Att. Gen. Did yoo ever aae him
with so maoy boraes' before ?
Turton. i have seen more at the S
and Bockler, when 1 lived there ; and Im
to ino there.
Ait. Oct. Howmanv have yaa aaen
Swonl and Buckler? '
Turtom. I have seen four or fire at a
bui tliis is many yean aco, seven or
yean ago, wben'be'used to keep his coac
fbar bwses, and come up with several i
borKs with him.
Att. Gem. How long have you lived i
George inn? — Turtom. About two yean.
Att. Gen. Did you obeenrc any other]
that stoo<l there ?
Tirrloa. There were two that arcR
sisasbio bones laigcr than any of air
liam*sown.
Att. Gem. Whoaa weie ther ?
2W<o«. IcanaatteH.
AU. Gm, Did any body
fir High Tnoion.
. I iomH know who owned them;
I one that paid for their meat, and
away.
m. Who it that?
. TV«ly, Sir, I cannot tell ; 1 do not
0 he wai; I n«?er saw him in
!«. Has ar William Parkyns any
tion^toask him ? — Farkyns, No, Sir.
H. Then, my k>rd, we shall call no
lesMS, anksB he gives further oc-
e leaTa il^here till we hear what he
Sir William Parkyus, Mr. Attorney
ad Ae king's connsel have done;
v time to make yonr defence.
ff. My kird, I rely upon your lordship
itece ; for I am ignorant of these
ps ; 1 rely wholly upon your lord-
pre a true account of them to the
>pe yonr lordship is so just, thst you
i the evidence to the jury as it is, and
ise. Bot 1 do not observe, that as to
illation there is more than one wtt-
kkat is captain Porter: There is not
ire ! and as to that, I suppose yonr
ill declare to the jury, that I was not
in It; and captam l^orter declares, I
re no hand in it, only I was to fumiih
s, and accidentally I was at some
hmi he does not decWe that I was to
w HI particular.
.Yes, yes, you agreed upon the
Ike sereial resolutions of assassinat-
2, and said, that it was necessary
e him off.
I. Still, that is but one witness, I
Ikriy ; and the law says positively
1 ke two witnesses.
; Noi to every overt-act, there is no
s.
f. As to the assassination there is but
kerbothe; and so as to the regi-
&d not say that Ijvas to raises regi*
t that he was tow by a gentleman
I been desired to be in the matter, but
St, because I had engaged in another
aboat a regiment ; hot this was all
mv. .
\ Ves ; he said yon owned you had
U Besides, it b said you owned you
saddles, and your troop consisted of
a.
J. No, captain Porter never said so.
m. That was Sweet
. Yea tekl Porter, yon had a regi-
ik after.
«. Captain Porter is here, I desire he
A. D. 1696.
[!«
J. Yes, and yon told Sweet, that yonr
iated of old soldiers, and that you had
ifty saddles.
ML Aly troop, aye! But still there
ag era regiment ; nor did they say I
i a legiient, or a troop, or was to
MaeoC
TeaioMgM your troop coMftcd of
old soldiers. I did not say that you had said you
had raised or would raise, but it did consist of old
soldiers.
L. C. J. He says that which makes it plain,
that you were to have a troop, or had a troop,
consistiog of old soldiers, besides volunteers
that had been officers : and thaty ou had bought
a f^reat many s&ddles, thirty ssiddles ; and you
were to go mto Leicestershire ; abd accord-
ingly you did go, and upon your return, yon
did give an account that all was well, and the
west as well inclined to king James's interest as
the north.
Parkyns. That 1 went into Leicesterehire,
and met several gentlemen, and that they vrere
all well inclined ; I hope that is no evidence of
treason against me : every body ought to be
well inclined.
L. C. J. Aye ! but they were all well dis-
posed or inclined to king James's interest
Parkym. He did not say so ; if your lord-
ship pleases to call him again.
jL. C. J. Call him again. (Sweet was set
up agaiu.)
SoL Gen. What did sir William Parkyns tell
you of his journey into Leicestershire?
Sweet. He said he had lieen there, and had
met his friends, and all was well.
L. C. J. What did he say .^ Did he name
king James ?
Sweet. He did not name king James to me
at that time.
L. C. J. Wbarwasthe discourse about, that
they were all well inclined to f
Oweet. He always named it the king's
interest, and did not namo king James ; but I
understood it, and always took it to be ^mg
James he meant.
Mr. Mountague. What did he say of the
North and West f
Sweet. He said that the West was as well
inclined to the king's mterest as the North.
>' Att. Gen. Whatdkl he say before he went?
Sweet. He told me he was to go into Leicester-
shire to meet some of the King's friends.
Parkyns. Pray, recollect yourself, and con-
sider what you say .
Sweet. He said, some gentlemen rid as far to
him,4» he did to meet them.
Att. Gen. Was that the time he talked abont
the troop ?
Sweet. No, that was before this time. lean-
not remember the particular time ; it was at his
own house, and captain Scudamore was with
him.
Att. Gen. When was the discourse about
king James's landing ?
Sweet. He told me that he believed new tha*
king James would hmd, he said he had his owtt
word for it ; it was about Christmas.
Att. Gen, What did hesay about preparation
for itP
Sweet. He sakl his own troop was is consist
of aU old soldiers.
L. C. J. Dkl he tell you he had a troop ?
Sweet. I speak his own words; he said, Mj
troop coonsti of all old iddiCTa.
107 ) S WILLIAM m.
L. C. J. Was iV comisti*, or will <
though I think there may be no great matter of
difierenoe in this case P
Parkynt, Yes, hit lord, but there is a great
deal, sore ; for * willconsist' sheirs nothing yet
done, and all is but words.
L, C. J. Sweet, answer to sir William Par-
fcyns's question.
Sweet, I tell your lordship, I repeat his own
words, My troop consists or is composed of all
«ld soldiers.
Mr. Cowper. AVhat did he say of volunteers?
Sweet. lie said, there were some gentlemen
that woold go along with him asf olunteer8,that
had been old officers.
Mr. Cowper. Pray let me ask anotlier ques-
tion? when be discoursed of the present Kittg,
by what name did he use to speak of him ?
Sweet. He called him by the name of the
prince of Orange.
Parkym. Pray, recollect jrourself, Mr.
Sweet, and think of what you say : since he
was declared king, did I ever call him prince of
Orange; 1 am upon my life, and pray speak
nothing but the truth.
JL C. J. Consider, and answer the questioui
What did he use to call him ?
Sweet, Truly, my lord, I am not positive as
to that, 1 underwood it so. I never knew that
he allowed him to be king of England.
Parkym. Did you ever hear me call him
prince of Orange, since he was king ?
L.. C J. Look ye, Sir, how long have you
been acquainted with him ?
Sweet. About three years, my lord.
L. C. J. Well, that is long since his Majesty
was declared king ; have you ever heard sir
William Parkyns call this king prince of
Orange?
Sweet. 1 am not positive in that, butiunder-
■tood he did not allow him to be king.
Sol. Gen, You frequently discoursed with
hun about the government, it seems ; pray,
what did he une to call him ?
Sweet. I have heard him call him king Wil-
liam, and the little gentleman.
Parkyns. When ever did vou bear me call
him the Little-gentleman ? Mr. Sweet, pray,
when you are upon your oath consider well,
and recollect yourself; and do not answer rash-
ly and suddenly, but think of what you say.
r always expressed m3'self, when 1 had occa-
sion to speak of him, and called him king Wil-
liam, as other people nse to do, I never used
the words, little- gentleman, nor prince of
Orange neither.
L. C. J. Did you ever hear him call him
tMberwiae than king William f
(He paosed a while.)
L. C. J. Pray speak the trath and no more.
Sweet. I have heard him call him jtrince of
Orange.
L, C. J» <But you have heard him call him
kioji William too ?^Swut. Yea.
Hr. C&wper. But pray, when he spoke of
Ite Idtigf what king did >ou understand by it ?
Smmi. losedtouAderstaadkingJaiiiei.
Tfial of Sir JViUiam Park^u,
I
Pdrkym. What is that to me what he
derstood ?
L. C. J. But I would observe to yeu
tiling, when you came from Leioeitenl
vou talked how well disposed they were tc
king's interest ; he says, be understood
king to be king James, and you said the \
was as well disposed as the North ; pray, i
were you employed by king WiUiam ta
how the gentlemen stood affected to him ?
Farh^. No, nor by kmg Jaroea neitJM
L. C. J. Why then should you eon
yourself for the kmg's friends in tbe Wcsl
the North ?
Parkyiu. I never was in the West isa
life, and therefore cannot tell why 1 aboiii*
him any thing about tlie West.
Att. Gen. Pray, Sir, when was it tha
WiUiam Parkyns spoke about the king's &
ing?
Sweet. It was about Christmas, be sai
believed he would land.
Parkym, Did I tell you positively it m
be so then ?
Att. Gen. He tells you he said y<M
believe it, for you had it from his own moi
Parkynt. That shews it is not probfl
should tell him so; that I shoukl hm
irum his own mouth, carries such am
probabilitj with it, that the evidence ifl
descj it destroys itself.
Sol. Gen. He does not say you had it
hb own mouth, but that you had his wort
it ; and this being about Christmas, long^
our king was returned, it could mean no <
king but king James.
L.C.J. Look you, sir William Plaiir
there is another thing I would observe, V
did you send your man to Kensington tt
Brown ? Who is that Brown ? and' what'
the man that lodged at the confectioner^
Holbom?
Parkyns. I cannot tell who it was, I kc
neither Brown nor the other man ; but I s
my man at tlie revest of Mr. Chamock, v
lodged in the same house with me ; he
sired he might go upon an errand for him
Kensington, and I directed him to go n
such an errand, for he was formerly Mr. CI
nock's servant, and 1 desired him to go of
errand if he requested it. Who these i
were, I know not, neither of them, nor anf
their business.
L. C. J. But he was bid by the roan 1
lodged at tha confectioner's to tell bis ma
that he would stay within for him.
Parkyns. That might be Mr. Chamock,
he was nis servant o^ce.
L. C. J. But he says he carried the n
sage to yon, and you received it. Well, fa
you anv more to say ?
Parkyns. My lord, I think there if but
positive evidence of any one overt-act.
L. C. J. Yea; what do you think of
design of bringing in king Janaea, and «
suiting about it, and assiatmg in tbo in?oi
and preparing a troapi aad proridiaf wom
fijir High Treason.
lit Ml diew overt-acts f Do you
v bafiflg a troop of old soldiers is no
If. Tkereb DO positive proof of aoy
njamis.
\ Itii proved there were arras sent
tllicbadmes last to Mr. Hav wood's,
fn Wether in law, and these lay there
l^edscfday last, afler your name was
damation ; and then they were re-
Um night, and buried at your house,
Idun op there ; and here is an ac-
es wbat arms they were, four dozen
i,tweDty-five pair of pistols, tbirty-
Ml.
H. First it does not appear when
s were broagrfat, nor for what intent
(kooght from Haywood's.
I Bit wbat use liad you, a private
nminyarms? And then your going*
eaoshire to meet some gentlemen,
gifiog an account how they stood
I the king's interest, whether that be
id for the interest of kmg James, 1
N to the jury, siuce von give no
kitfou were employed by king Wil-
li. My lord, I went upon my private
>,iid then talked of news as other
I Botwben you returned back again,
ni tU was well, and gave an account
Mi were disposed in the West and
K If there any persons named, or
B? Can it be an overt-act of treason
ilNe?er my acquaintance ?
X Hot your going with that de«gn
^■ao interest against the king, and
*kiBg.
K He does not say I discovered my
1 went to meet with some friends of
^' Did be not tell you he was to ffo
td. Yes, be did so.
• Did be ten you to what purpose?
Be sud be was to go to meet some
r'lirieods.
f. Did I tell yon who?
So.
Bat there was a lord's brother,
etellyouofthat?
He said all things were well, and
rtt as well inclined as the North.
To wbat?
'o the king's interest.
Trehy, Yon spoke of a lord's bro-
as concerned?
le said several persons of qnality in
fre concerned, and a lord's brother
them.
. Mj bird, 1 desire he may be ask-
esaid the king would land, what
SBl, whether he named the late
M James?
If ill, Msircr that ; when he die-
A. D. 1696. [aO
coursed to you of the king's landing, did h9
name the late king James ? or did he say thsi
late king James ?
Juryman, Was he mentioned in the dia-
course?
Siceet. He never used to mention king
James to me, but only the king, which I un-
derstood always uf king James.
Att. Gen. Fray wbat time was it that he
spoke of the king's landing ?
Sweet, It was abooi Christmas.
Att, Gen, Therefore no other king could be
meant but king James, loa there was no other
king to land at that time ^ and he said he had
the king's word for it. I suppose he cannot
pretend be had king William's word for it.
Parkins, I hope, to talk of the king's land*
ing is no treason ; it is but words : If I teU an
idle story of wbat 1 think may come to pass^ .
shall that be reckoned treason ? Then for htm
to say, I had it from the king's own mouth, it
is impossible to be true, and is no overt-act,
being only words, and cannot be reputed tret-*
son. And then as to the other two parts of the
charge, the consultations with my lord of
Ailesbury, and those other persons, there it
but one witness ; nobody but Porter ; neither
is there any more but he for the assassinatioD ;
his evidence is but a single proof, and there
ought to be two positive witnesses, by the law,
to each overt act. '
L. C. J. HoU. No: there ought to be twa
witnesses to each species of treason, that is alL
Parkynt, There ought to be two wit*
neises to both these parts of the treason.
L. C. J. Holt. I must tell you, sir William
Paricyns, if any person does dengu and cooi*
trive that the realm should be invaded, or tht
king deposed, and another set upon the throne^
that conspiring to invade the realm, or dmse
the king, are overt-acts of high treason, witha
the statute of 25 £d. 3, and the same speciea
of treason as designing to assassinate him is«
It is compassing, designing, imagining bis
death and destruction. Now the question ii,
whether there is not another witness, besidea
capt. Porter, to prove another overt-act of this
design?
Farkyns. I don't find there is; for all the
rest is only discourse.
L. €. J. Holt, Yes, for what? Do you think
providing arms for that purpose is only die-*
course?
PorArynj.' The witnesses do not say for what
purpose the arms were bought.
h,C, J, Holt. Nor do you tell us of any other
purpose.
Farkynt. My lord, it does not appear wIma
they were bought.
L. C.J. Hjt. Aye, but wbat occasion iiad
you for such a quantity of arms ?
Parhyni, My lord, t did not buy them, after
all. I found them. If I had had liberty te
have sent down for witnesses, I could have
proved that these arms were in boxes all rtisty
m my bouse when I first came lo it.
L. C. J. HoH. Aye: But why were tbey
Ill]
8 WILLIAM IIL
Trial of Sir fVUUam Parhym^
buried, just at the time when the Plot was
broke out, and the whole desijs^ discovered P
Parkyns, 1 caonot tell, ray lord, how to
help it, if thev will make an ill interpretation.
L. C. J. Holt, What interpretation would
you have us make?
Parkyru. My lord, it is Tery easy to ima-
^ne, people do not care to be found with arms
at such a time; but, however, the having of
arms is no treason. They are as much a com-
modity as any thing else.
Att. Gen. And then the horse coming to
town just at such a time, aM the saddles.
Parkynt. I have not bought a horse this two
rears, and I travelled in no other manner than
used to do. So the groom tells ye, I used to
come to town with three or four horses alwflvs.
I never kept less than six or seven horses this
twentv years ; sometimes a great many more ;
and they were verv little bcvses, pads, no way
fit for the service tbey are presumed to be for.
. L. C. J. Holt. Have you any thing more to
sav,Sir?
Parfym, I hope, m^ lord, as to the assassi-
nation I am clear : Perhaps the world would
imagine, I have had some inclinations to king
James's service, and perhaps tbey may not
think amiss ; but I never did any thing, nor
had an opportunity to do.
L. C. J. Holt, God be thanked you had bo
opportunity !
Parkynt, And 1 hope my life shall not be
taken away without proof; I hope it will be
rather thought, tliat every one should be taken
to be innocent ; and it would better please the
long, that I should be acquitted, than to let me
he round guilty upon slight ground!< and ima-
ginations, of which little or nothing can be
tnaile.
L. C. J. Holt, No question of it : It will
please the king and every body else, that you
should be found innocent.
Parkynt. Then I hope, my lord, you will
not strain the law to take away my life ; ac-
cording to the rule, That it is better five guilty
men miouM escape, than one innocent man
suffer: Fur the blood a of man may lie upon
every body, if it be causelessly shed ; and it is
very severe to strain the law to take away any
man's life.
L. C.J. Holt, Look ye, sir William Par-
ky os, 1 must tell you, you may be under a
very great mistake : You may think it neces-
sary to have two witnesses to every overt- act,
but that is not so ; for if there be one witness
to one overt- act, and another witness to ano-
ther overt-act of the same species of treason,
that is all that the law requires.
Parkynt, Here are two species of treason,
levying war is one species, and assassination is
another.
L. C. J. Holt, Your design was, originally,
the restoring of king James, and x in order to
that the dethroning of king William.
Parkynt. That appears but by one witness,
which is not aoeordiDg to kw, which requires
L. C. J. Hi^t. One way of effectii
design was by assusinatiite, the other I
sion, or by force.
Parkynt, Still, my lord, here is' tl
witness, and that is but one.
L. C. J. Holt. Yes, there are two.
Parkynt, None but captain Porter.
L. C. J. Holt, What, not as to the r
of king James, which tends to the del
kii^ William ?
Parkynt. In what particulars, my k
L. C. J. Holt. Your providing an
going to Leicestershire, and sending C
on that errand into France. As to the
nation, indeed, there is but one positive
besides otlier circumstances, which hf
weight ; but as to the other, you said i
would come— — r
Parkynt, It was my opinion, that's
X. C. J. But you said you had his wc
Parfynt. Does not that answer it!
lord P Is it possible it should be true
who was in England, should have the
one that is at such a distance beyond si
L, C. J. And then your buying of
for what purpose were mey ?
Parkynt, My lord, does he say it W4
der to it? I am sure he does not, and
shall not be presumed out of my life.
X. C, J. When you talked of thi
landing, and said, you had his word foi
likewise said, your troop was made u
soldiers, besides volunteers that had I
fleers.
Parkynt. Still there is nothing (U
does not say there was one man raised.
L. C. J, And your going into Ixmco
upon such an errand, as you told liini y
upon.
Parkyns. Well, my lord, 1 must le
your lordship. I hope you uill tonsi
of it.
L. C. J. We must do that which is i
tween the king and his subjects.
Parkynt. And, I hope, my loni, the
sioh of subjects is more acceptable that
struction of them : and the government
concerned to save the iimoceut, than to
the law to punish the guilty.
L. C. J, It will be more acceptah
indeed, the king and kingdom are vei
concerned in this matter, and at tliis i
William; and the gt>vernment ought
care to prcsene it^eU'. Have you an
to say, 8ir? If you have, pray 9|>eak ii
Parkyns. I have no more. I suli
your lordship ; I think there is hut <
ness, and all the other is but conjeci
nonsense; and oul v%itii€ss is not sutfit
the law of England, ibi* by the statu
must be two.
L. C. J, 1 have told you my opinio
Parkynt. Besides, y out* lordship ha
me this many years, and you know
education was not to war and tigtiiiog.
gown; and your lordship knoM bovi
aMy 1 have bred.
115] ^^^P ^r High Treasan.
ImC.J. f i»«v«iniown y mi heretofore, sir
wmW ytm kept your profession ami
D* 1696.
[114
Fmriairng^ And sow fn my old age, niy Itird,
I tm grijitti IJifTie, aiit) listve lo«l the use of my
invk fTHii ilMf gnat, und arnrce able almost to
M«tt tmf ibet. Therefore it cannot in reason
mtkmtnt ^rahahlc, th&t 1 «^houl(l en^a^e in
•■k B Msinrss a» this; mill therefore I bo(>e
. jii^mjl inlerprrt h\\ thiii^n in a nriilder sense,
^■^■tor flf litis, rftther thnn for the destruction
^^^Bid tlie ruin of n man's fortune and Ik-
LC^J. I idl yoii^youbavehad my oinnion
iiiiiiiiH, the tiumlier of i*ttne^sea< 1 su[>-
fiw lilt Iftfil mud brother witt declare tJieirs.
L.CLJ^ Trrby^ My lord chief justice, it
im^ ilort please to hiive us deliver onr upi-
MHi; t iJiir.k w ii nus^lii lo be verv lender in a
mm •f bl" ■ - hie of i^ir Wilhaui
PldcyiA i» ^ e ought to he careful
Ai^Wliare on wrou§r dnn« him. But I thitik
Vibtettcs iff Ircison, ripecially of this na-
l*«,4»fife of Uie Uin^, aufj the hvesi af all
at pe<»|»le of the kiogYiom are also at
%tk*\ f«f mutt be indifferent in ihit ca*e»
I in« tfrace of (jod vve uill be so. The
I Utat *\T Wdliam Parky ui proposes, t»,
tlirrt; ftre two iviineKses upon tbi^i
totliii 't if vi^hich he is indict-
•^ «tedb iSt ti "^iuK Add imagining
^kaif^^MOii: <M.c^ >^iU)es!4, at least, does
f^mtwmj prore, that you sir VVilham Parky ns
M ^tw tD thp 4leugii of aBiasginutmg the
lnC^ffBWMi, afiU proimaeto provide and con-
^Anlw«rii Af»«l arm^ to that purpose. Now
MfpM tbct t^ proved but by onr witue«is, and
hwi gtJDc no fiirther, Ibeo your
ukl bate hail a very ^ood ground,
I li»oa«i)ii tiai l^e a lei^itl prfiof of tri^son \
\ I •ml leil you, that thiii treaaon of com-
vaA. imayiniR^ the kitig^F death may
cndcnt by other ov<?rt acts, besides
KMainutirfa r to conspire with a foreign
> 10 is fade the 1 i. provide arms, to
Ik ii^wlara, ae> an insurreotion
Like ^isiTf (besie mt^^ mert^acti of iriia*
f llRiktag^a d«ath. For it cannot \>e aup-
bot clial be that would liave au mvasion
I WfTiclbo ag^in^l the ktng^i person,
1 tie dfftro^^tiou fH' the king ; he that
tak« away all bia defenc*^, which he
»e by tbaaasliitance of his subjects^ antt
icxpoaed to bia mrittil enemies^ cannui
I to deitig'n the kin^^s ruin and
Tbttdofv, air Witliatn, such thinisr^
Mr mlsft a compasting^ and imsi^iii-
*. lane's fftratb ; your providing arms and
«re etiil«<riee« and overt-mcta of this
ad f ^' ' I M<^ upaoddoiiu
I iM€, if that were
, » i^irna^fmiiire^^c. aa it seems
leaM was*
Btf ikat U not aifd, my lord, 1
fosir ptr^on lor uiterrupting' you ;
tiMl I WM tlNsm 10 rise I by tio
aMwr«r} %oA tlmid^ra, pray^ my
lord, do not inforce it beyot»d what the evidence
has proved ; he said, 1 went lo meet my fnefids:
was there auy tbin^ said it waa in order lo «
rising?
L. C J, Trehij, I think you mistake your
own words, an you spoke thetn to the witness,
if f did take ihem, ag 1 think I did, t\^\\U for
they were several times repeated. 1 ^vill do
you no wron^, sir William, 1 assure yoa. You
went into Leicestershire, and ynu say, it waa
to meet your friemJs; the witness says, it was
to meet the king's friends ; by the kin|f, it is
\ety pbiio, you meant not km^ WiUiara, bot
kincf James ; for you spoke before nf the king'*s
landings, which was at Christmas last, when
every body knows kin;r William was in Eog*
land. These coupled tr^eet her
Parkyns. I beg" your pardon, my lord;
those two thin^ are not butb to be joined to-
gether; the discourse of the king's landing
was at Christmas, aa he says ; the other thmg,
my journey into Leicestershire, was a mouth
afterwardi^i aud therefore they caonot be coupled
ti^ether.
L. C\ J, Trehy. The coupling of them, that
I meant, was only to shew who was umlerstood
to be spoken of by you, when you named the
king ; so Uie question is» Whether you did not
mean the same person in January that you
meant in Decetnber, by the word ting, espe-
cially since, as a discovery you bad made, vou
said farther, the West was as well iiiclinefl to
the kin;^'s interest as the North, and a lord's
brother was concerned in it? II by the king
you had meant king William ; how imper-
tinent and insensible had been all this discourse,
that the west was as well inolitied as the norths
and that a lord*s brother was concerned in it ;
concerned in what f In being" indinetl to king
W^illiam ; to what purpose cuuld that be said P
Farkynt, It may as well be interpreted that
way as the oihtr.
L. C* J. Trtbff. I must leave that to the
jury. And I confess, if there was not some-
what more in ihe case, you might the belter
argue upon this as to the interpretation. But
layinef aside the consideration of your riding
into Leicestershire, &c. here is this providing
of arms, proved by four or five witnesses, and
the serving of I hem in that manner ; and
there is no account given by you, that they
were provided for the service of the govern-
ment, or that you were employed so to do.
Certuinly it is not lawful to provide arms, es-
pecially for a wliole troop, as for aught I per-
ceive here was, though indeed I am not
skilful enough in those htisinesses, to know
bow mauy make up a troop ; but it is plain
here was uu insurrection intended, when the
invasion was made ; and that is an evidenca
that these arms were to be employed upon
that accouut, for no oll^n* use was to be made
of them, nar is preteiiiled. If you had found
those arms in your house, as yon say, il bad
beeu your fluty to have delivered them up, or
dinposed of them lo the use and service of tha
governmtut, which tervice loo, eould oaly be
tl5]
S WILLIAM m.
TrMtfSir WUliam Parkyni,
[1
If hen you haJ a commission from the gorern-
Dent, And not of your own liead. And then,
besides all this, von acknowletlge tbat you bad
a tnK?p of old soldiens.
Parkym. ft is but slidlngly that ; for he
only telU yrm, that a troop would be com-
Deed of ofd soldiers.
L» C, J. Trehy, How can that be ? when he
taySj he refietiU >oor own wordii, My troop
coa«i»U of old soldiera; can any body say,
tbat his troop eontisi^ of old soldiers, without
having a troop ?
Farkj/ri. Pruy, Mr. Sweet, speak; my life
i« at slake, di4t I s;av to you, it did eonsistf or
it was to i oiiiist ? fletjoHeiM youiaelf, and con-
sider *vc«11 before you speak.
X. C. /. ^ hat was it that be did s&y ? It
I conaUt> or it would cousi&t ?
Sv^eei* He ^aid, hia troop wa& composed all
^f old soldiers*
Parhtftis Hut does it appear by any evi*
ence, that I bad a iruop? If 1 had, who were
ey 'i l^one of lbtffi»e men do apfiear. Does
(Ilia trooj* consii»t of men iu I he air? that!
bouhl It-st men that are all in nubihus^ mvd not
onoof them to be known. Suppose I shoidd
lei I brio a tye, or make Home brags, ia this
lere ia no person proved to be li&ted
treason ? IJ ere
01* nftmed.
L. C.J. Bularmi) were foutid in )Our house
for a troop.
Farkynt. But v»here (hey were Iwu^ht, and
fhen tbey wvre bought, and made ready, it
doea not appear ; and I altirui to your lord-
ship, if you would give m^* but one day'atiniei
I would prove, that they were at my house in
Waruickshire when I iiratcame down thither,
which h two years ago. And I will fully
Qdke it out to your satisfaction , or I will be
rucified or any thing iu the %vorld. 1 i^n
prore it by a great many witnesses, by my
fricuda, ana all the servatits that belonged to
me, th^?y were there long before ttiis discourse
vas ImJ or thought of.
SimL Rukeby. If your lordship escpecta tbat
[ should dehver my opinion, I am ready to do
As to this matter of law that sir William
[^arkyns has proposed, he says, There are not
Ctwo Witnesses to the same overt-act> and there-
fore no evidence of treason ; truly, I take it,
anil always diij, that the law is, iliere need not
be two wilness^ij to the same overt^act ; but
if there be two witnesses, one whereof fapiaks
to one ofcrt-oct, and another lo another ovt^rt-
act of the same species of treikson, iUhhc are
two wiines^s within the law. Now, 1 think,
iic:reare two overt-ucts in ibe indiclaii-nlul this
Jlreasou. The treaaon is compass! ng^ the death
Df the king; the uvtrt-acts are fir:»i, the par-
pticuLtr dehi^n of the a^ksas&i nation upati his
jKrrjscm, and the other is, the bringing^ iu of a
J'oieii;n ibrce^aiul prejiaring horses and arms
I meet liuit foreign force here: All to the
Ame intent and purpose, the compasaiiicf ami
na^iuini?' the king's death. Now, besides
tliai of the asiaasinalioii, there aie a ^reat
lUiuiy iiritiifii£es that jp»T« thart wtra arms
prepared ; for there were found a great t
tity, when they opened the boxers; wii
boxes, tl is plain» he himself sent down to Hi
wothI's house : For though Charnock
letter^ yet it was by bis direction, as be i
to Haywood, when he was here in town,
then his arrant fetched them away from \
place, and this 1 take to be another ove
and proved by ieveral witnesses. Sir Wii
Parkyns speaks of his being a ^otin*ii
hut 1 do not know what a gowniQaii
to do wiih ««uch a quantity of arms,
Farkym. If you will give me leave to I
foriiOiue people, I will demonstrate itaii
as the sun, that ihey were in the house
years atfo, wheu I came finvt thither.
Just. Rifkthy. There were preparations
ye^rs ago, it appears, for the di'«tructi«
the king acd kingdom ; however, the tneai
were accuiied of it, bad the ludt to <
be iGf|uitted.
Parkym, My h^rd, 1 hope 1 shall not U
terpreled out of my life, i desire the sa
niay be read.
Just. Rokeby, What statute do yon ipei
Parkyni. The 23th of Ed. 3, and the ,
statute too,^ let them both be read to the j
that they may consider of it.
The Statute of the 25lh of Edw, 3. wwM
Parkym* There is nothing of two
there.
L, C. 7. No J but there is another
the 5th ol Edw, 6. eap. €. that may l^e
for your advautage : Will \ou haveVttail
Futkyns, Yes, if you please ; I kotiw
is another Statute that does direct it, aw' t
peeted to bare found it iu thl5 Statute,
CL of Ar, This is an acl made in tlic
and 6th years of king Edw. 6,
The Statute wis read to tliese w^
'* Unless without Trial he shall confesi
same/'
Purkym, TheiT is enough.
L. C, J. You have heard the Statute t
would you infer any thi^ng from it ?
Parki/ns. I inler that there ought to be
witnesses, and here is but one.
L, C. /. There are two uituesses.
Fat kym Not direct to the same thiol
L. C. X 1 shall leave it lo thejury, wi
this evidence does not prove an overt>a
demonstrate a design against the ki
design be ti» drpo^e him, and that is
by two overt-acts, undoubtedly that is
within the Statute ot 25 of Edw, 3.
Farkym, Tliat I agree, but yet there
be two wiine^sst^ of it.
X. C. X Suppose dethroning the kitig
the main desiLai that strikes at his life, aod
rtisolve it shalT be done one way or other.
• 7 and 8 W. 3, c. 4, s. 5, not then,
seems, iu force, but If it were, yet it does j
require it, but only tlrat there must be twa
the saiaa trtasun. Holt's Bep. 60S«
j€ff High TreoMm*
er by iosurrecliou ;
lib tt forei^ ftrmy.
!)C«i re there oiignt
■teio^nu, for tUai tcrv last act that is
^Blin a ttivif rlajv, declures It ts auf-
^nb^ie be rtnt* tu rioe oiert act, and
ET loiiioiiier i but ttHl it must be of tbe
jj^,f ' •— ■ ' • n|i; and dc-
Ilt^f . of bim, aod
B*{ ist bim, or to
to III L ot treason,
iqU' \vrr«^ overt-
i**^-' i: ,:'^s B8 can
fcc natU, and thrretore there ought to
no eiirb ot'tbcQi.
That wbicli I delivered us
M«, tlint ooc witnetis j» roving" oue
■y vvitDPSM proving an-
I me wufi of treason, are
^ rig; as tbe Jaw re-
i'lilly coa finned in
u act of |»ir-
i reason, (bat
'. iirasoii, but by
iiiony of two Inw-
^ . \UtM\ to tbe same
i\ to one^ uod fhe other
ovcrt*iict of the sitine
(wt. Of thr %nme trenBon* aye,
^<Te i( IK (be imagmiog
liul is tile Irrasoit.
^^^Uoi you may fay i'V€*ry thincf
^Bl if you pleciie to let the ^bolo
|K>u tliall b^vf it rend if yois will;
^Bt thai IS in it coocettiin^ this \
Jf»iw u de^itjru lo depose the kioif, i
I^Siieifhited by sotne overt -net, is an
I •• pn>?t; the debii^ of tlie deniii of
hen It inu^l l>e manifest, and not
; ■' «l. that
ttmn, that is an orert-
•i of hii! deuth,
Fbi_*y toie very thftcrent thing^f
Mitioini, IV e have seen a kiog'
\9\ he i% aUtf .
I nm iiure ive have Meen a
d, and yet, God be
* IT in tbe de-
<he iri'sson.
(, &ijLC«iii to aiuke
'"»'V'r people will
*brres^ or to
LIihj: tbttt is
-act of
>s« been
r fjules, my
^ t (ho^e men
iBB nr|ttil«d tbe mvUUuder in ciljecs
HU»U *!•*
.Frvif. Dal ui.
A.D- 1696. [118
of tS natore i For any act that expresses
intent of dethroning tbe king, by means of \
invasion by a foreign force, and an iys»irr»fctit*i
against tbe king^, is a proper proof of a Cie^x*^
of bis destruction ; and if not» then ajp-eeiotf 1
shoot htm is not an overt-uct. Men intiy s;
aiso, that there need be actual sbuotaig
make out the orert^act in that cvkse.
Farkym. If yonr lordship pleases to huft
the arri read, I slmll submit to your lordship*^
ju^igment.
L, C\ J. Let it be rend.
Forkynt. If you please to r^d the act, thf
preamble of it.
Ci, fj/' Ar. Tliisisan act made in ihe
year of our soiereit^n lord tbe kiogf: Is tba
tbe act ? It is ait act for regubting of iriiils m
cases of big li treuHtJiK and mijtprisiou of tre
sou. Is that the act ?
Faikt^ns. Yes, yes. (Tbe actwos read.)
Just. Hokebtf. Ibebeveifyou look into tl
^reat case in purliament, the case of my lor^
Niaffrirdj you v^ill find it was decfared for 1
that one ivitoc^s lo one overt act, and anothe
witntss tu another ovfit-act id tbr same t
sou, they were two witacs^es within tbe
and this vi as a solemn resolution in paritatuen
iu tbe House of lAudii,
Fftrkyns. I believe it has been done; hul|
here is a tienefictal biw made, which H' tafi
trial bud been ptit off a few days, I shooldl
have bad the benefit of it.
L, C. J, It would liaie been the san
tbin;r a^ to this mntter, for this act declare
the ^^ry same I hint;, as lo the two witnesi»t?s.
Fftfkt/m, Aiid tlien, niy loril, I could bai«j
bad u ilnesses to biiv r taken cjH' a ^real pari i
this evidences, nud the law comes lo tuke ifi^
vtiibin one day, and it turns here upon thisj
mutter of Sweet, ^^ lio is not a *:oo(l evidence :(
loriii'j manifest be has contratlicled hini8clf| '
and It is miinifcst be has sworn what cannot be j
true.
X. C.J. Wherein?
Farktfm. That E sliould &ay the kin^(
would I and here, for I bad his word fur it.
Jusl» liakciif/. You might have bis word, (
ufid not delivered by hi;^ own mouth ; tber« d
ure other ways to convey a man^s word| be- j
aides sneakiuf*'.
Farkiftit. But then we do not call it hiMt
word, that** hearsay.
Ju«»t. Hoktby. If a roan write his note Ihal^
he will do such a things we may rery wellsayt {
we have his word for it,
7^. C. J. It is not impossible hut that yoa
mi^bt speak w itb him.
Fnrkym, It is impossible I should speak
from hence to France. •
L.C.J, You might have been over witk
liim ; I bebeve a great many others have, and .
it is proved 3Ir. Cbarnock \Mmi over.
Just, RGkiby, If any man should hare said i
nt the latter end of the lust foomh, I believe
thut there was an assassin at ion mtended against
the king, because 1 have h'ts woni for it, mere-
ly from reading bis speech to tbe parlUiueot,
IW]
8 WILLIAM m.
I
wherein be affinas that he had fsereral proofs
nf it^ ihat bad been a firoper exprpssioo, though
tie <hd not hear the king »peak it.
Farkym. Yea, if be had the speech to pro-
duce.
Just. Rokeky* Then if il coroe by letter, or
message, or common fame, he mig'ht send
you word by particular messenger.
Parkj^m, Yes it thtre was any auch au-
thority as that it were true. But be hasi ma-
nifestfy c^ntradicteil himself, an J captain
Porter suears for I its own life, and 1 must
leave it to yon, whetlier tUey are to be behe^ed.
Just. Hoktby. Captaiu Porter's testimony
has been hiitHdently cooBrmetl by the ac-
kuowledi^nient of dyin^ persons.
L, C X WeH, have you any more to say,
air WiUiam Pnrkyna ?
Purkyni. No, my lord, I submit it to your
lorrlsbip'si tlirertion.
X. C, J. Then what say you to it, Mr.
Attorney, or Mr. Solicitor?
Soi, Gen. May it please your lordship, and
yon j^titlemen of the jury, \ ani of cuuosel
tiir I be kiug* in thifi matter, and it ist my turn to
sum itp the evidencf a^fainst the prisoner at
the bar ; he Btinds indicted for eompa$«ing the
death of the king*, for desii(ititi^ to depose the
kin^;, for promoting a foreign invasion, for in-
tending an tUiiurrLxtiun here at home, and for
aiding unil abetting the kinjsjf^s enemies, and
lor dtiin^ ^n bat be coulJ to procure the sub<^
jeclioa of his own country to forcigneira and
Strangers.
itemlemen, some of these crimes run into
one anoiber; designing the death of the king-
by assj^!iinaiiut>, and desitrnin;; to depose the
kinfi^, aniotint to cue and the snme thing
wirh compa^^ing- and imag^ining* the death of
the king.
My lurds the JLidg-es have given you their
opttiiou in that (K>mt nf law, and I think it is
«)^reoableto alt the resolutions tlmt have been
since tbc iimkini,'- of the statute of 25 of Ed vv. 3.
1 think tlmt it has l»een e\'p)aiiie4l so in the time
of Jtichurd the 'h\ ; but this \ am sure of, that
it was so resulvod in the time of Harry thf*
4ili, XV hen there ^oh a dt sif^u to set u|i Richard
the secnnd agiiin, nnd it was mJjud^fcd lo he
hit,'h' treason in compasninij JUid iinng:iuing the
deatli of ibe kinyf. For de]»osin^ the kiu<|',
is deutroying him in hii* poiitic capacity, us
much OS asHassinattnn ami itiurdentiiii^ t>j' hjm
is de^troyiiif^ hiin iu his nalurul rapiiciiy ;
and tip Ci>n^()irulorB in such tasts krunv wliat
the gfr**»l i*rid is they aim sit, fo subvert llit;
govt mm em as it is esiajjlisheflhy law, whereby
t'very iii^u eiifoys his oviii prnperiy, and the
freetloui of his person, uiitl ihoi^e that will be
quiet may havj* thr'ir liberty and projierty pre-
srrvrd rtttire to them ; 1ml sonie pfiple uri^ s^i
\^vy intpalient of suhmiilin^' lo ibf bw, that
Ihey ciinnoi he content t^» be in servitude tlicm-
selves, l»ut they must nefds do ull they cau to
brinj^f it upon tlieir fellow subjects. And m
wpre yzxy well if that those who were in Jove
with slavery I would but go ta soiq« other
Trial of Sit WUIUm Parleys,
places, where they may hav« cuong^b of
^n*{ nut brin|c it u|k»ii those who are so Ultk
sirons of such a thing, as we are, and 1
always «hali he,
Genilemen, to pro?e sir William Parii^
Guihy of this treason, wliereof be stmnda
dieted, we bate produced seTcral
and first there is Mr. Porter, and b« lelis
sir ^ilbam Parky ns told him he had
coinmi«;sion from king^ James, written
bis own h&nd, for iP«kio§f war agiuost the
son of king William.
Parky Hi. Sir, I beg your pardon, for
ropting^ you, but there was not one w,
that said ; liere is Mr. Porter, pray
if ever 1 saw a comtnission from kin^
L. C, J Porter did say so, if 1 i
any tiling Porter said ; you told him yon
read the com mission , and il was written
bis own baud.
Parki^ns. Alt that I beard of il wu,
when 1 was desired lo «uake one in the
sas^ination, ] refused it because I said I
busy about the matter of my regiment.
Jit, Gen, Pray call Porter again* («
Porter came in.)
Sal Gen, Pray, capl. Porter, will yon
thecuurt and the' jury an account wliat
beard sir William Parkyns say about the
niisiiion that came from kin^ James f
Porter^ I asketl Mr. LharnockwhY I
not see the commission, and he told am
bad nether seen it bimsrlf, but sir William
kyns had. I did a^k sir WilUam Park^
whether he bad ^een it, and he told me be
sec jt, and read it, and it was to raise war
against the person of the prince of Orange.
Ail Gen, Whose baud was it in did besayf
Porter, It was written with kiuy^ J
own hand.
Parkyns. This was my mistake, I tbi
he had said 1 told him I had u eomoaissbii
a rf^iment.
Idr, Mnntaout. Did he ^ve any reason, w
it was written with king James's own band ?
Porter, We used to say amongst ours^h
it was, btcnuse he would not trust any of
ministtrrs \i iih it.
Sot. Gen. I ivould not do sir William f
kyns any wrong, but only sum up what is i
terial in the eviflence given against him. 1 1
member very well Mi*. Porter said, Mr. C
nock toI4 him sir Wilkiiim Parky psi bad i
tbe comuiis^ioB, but 1 woybl not otfer that:
evidence a^^inst tho prisoner what aooti
told him, hut he says besides that sir Willie
PafkyuH tobi him bimself, thai he had s«ea
and tliat it was written with king James's o
h;^ud. He says that they bad st^verd
ingi together, sir Widiam Parkyns, and
ffreat many others ; and he names the p!
the Na;^\s-heiid in Cor eut- Garden, the ^
Tavern ui the Strand, and the Ghd)e tavern
Hatton-Garden ; he tells you particularly t
it wus agreed that King (who was execuli
and Knigbiley, and hituself, shouUI go I
view a place that should be proper for the
WJ
Jof High Trenton,
1, Mid Ui fif e n report to the prisoner,
the rest of Uie consptraiors^ wKut they
lit tlie most proper place ; and that
_ _• tbey did rievf (he |>laee» aod came
\ Digbt, and fuel the company, wherertf
liam Parky Ds was oue ; aDiJ I bey j^ve
oant bow ihe place was viewed^ and
, was thou|^ht most pmper, and ihen all
snv ag^reed to ii^ He says indeet),
nifiam Parkyns was not one (Hat was
i it ia bis own person, but one Scuda-
i ta be the man employed by bim ;
f Uul say it vvaA a ihin^ that was very
' lo be done, and would facilitale the
na nfktn^ James, and the hriniriin^
a^u : And tliere is likev»i(ie this
it^g efidence of Wr. Porter^s witli
, I sbftK observe by nnd by, tbut sir Wit-
il^rkyns was to procure 6re horses, three
»iiwrwf be was lo mount himself, and two he
wiatotrnd CAptala Porter to mount ; and if
te« vere ftirther occasion he could procure
aort Irofii Mr. Lewis, gentlem:in of t)ie
hant ts my Jord Feversbam ; and accordingly
vif bare jpnMiuced to you two witnesses, Free-
I aiidTurtAti, the one atajisier.tbe other an
r tbai litedattheGeor(re-inn in Holhnnj,
wIm fife yciu an accoiint that upun Friday
ktfbsllienrst day that was designed for the
iHMSiitioo, tliere did coute tliree hon»e8 to
liini, for iir Wdliam Parky ns ; but it beinq-
{■I «ff upon the disappointment, they were
Ml Mt w town ogam. Upon the Friilay
iftifuda, ibe day before the discovery, then
^katwme lour bones hrong^ht to town, and a
Sill wif of #fr< Lewis, which was a roan
B4fhfm. Pray, Sir, will yoii please lo oh-
ibil«»rtof liorsestbey were ; and par-
the height of them, that it may be
KPiv fit tfiey were for this business.
M 6tm, i will do you no wron*^^ s\r WiU
bm, if I can help it. The Jury havt* beard
Ikecfidettce ; and by and by they will bear my
brd'i directions : but tbey du say there were
tokougbt to town, juida'iiftb was Kc^nt, a roan
tirsi, the witness said the horiio came
•la^iie^ bouse, but then preiit-nily be
1 biftuelf, and acknov^ le»!{(ed the »i is-
i ffcflerw ards said it was from Somer-
80 there were llie five liorsefj, tliree
' sir William Parkyns was to mouni,
Aiktn Porter, a^ he hiniRetf siiys ; and
t(kw 1 instance in, aa Diiikni<:!f a couciir-
riif^f idence, and very near to two ivtlnesses
ttfirove thi* jjart of the conspiracy.
Ti>«o, ^eotlemen, captain Porter goes fur-
IW, and say>», that be had beard (but sir Wil-
I parky us did not tell him so hiti>«elf) that
""liaiiii Parkyiis liad a commission to raise
*ttt of burse, and was pre|»aiing^ so to
^ linst the time of the invasioti^ to join
vik tlic forces that were to come imm abroad.
f}rtn which, ue have called Mr. Sweet
lilipte YOU an account that he had been ai>
fiijQlcil wiib sir William Parky ns tor throe
^yi, and tlial be had of\ea talked wiib him
iMftcapta
Unit facts
about the kingf, that is, his present majesty,
whom he called the prince of Orani^f and th#
little gentleman ; and about kio;^ James, wbooft
he used to c^it always king ; and he said tb«
kingf wss lo land very speedily, and that he
had a troop which consisted of old soldiers, and
that there were several volunteers that were
ofHcers ; lie said be was to take a journey into
Leicestershire, anil accordingly lie went ; and
when he returned back again be said, the
west and the north were very well inclined to
the kind's interest, or to thut purpose. And to
strengthen his evidence we pmve, that he did
gn accord inj^rly into Leicestershire, aod we
prove it by his servajit that went with him,
w here he met with several persons, particularly
one Vurboroiigh, and a parson ; svlmt they
did transact the servant cannot prove, but he im
a concurrtiiLf vvituetis to prove, that he went
into Leicestershire ; and we have all the rea-
son in the world to believe that he went on that
erranil that he s]>oke of before, that is, to nieet
the king^f) friends, as he chilled king Jamef.
And then there is a further concurring evidence,
bis having a regiment, or a troop, it is iM>t ma-
terial, whether it be one or the other ; and that
h the matter of the arms, 4 do2en of swords,
S2 carbines, 36 cases of pistols, that were hid
in the garden of his house : And these arms
we have traced further, be sent ihem fnmi his
house to May wood ^s bouse ; there he (bought
they would not he safe, ami thcivfore sir Wil-
liam Parky ns sends far them privately; they
w ere to cmne away at night, und he brought
buck to his house, and they were accordingly
brou^jht back in the night to his brtuse, and tber«
they were buried ; and ilie same person saw them
taken up afterwards, which brought them to
liir William Parky n«'« bnnse, anr] prines they
were the same Imxes that were buried, and
which upon opening proved In he tliese urms,
that were first sent to Hnyvv(iod*s and after-
wards brt»ygh| bick to his own house.
80 that this, gentlemen, is a concumng evi-
dence both to what Sweet says, ami to what
Portr*rsavs; and those are the two witnessei
to this part of the trca^n, that there wits a pro-
vision of arms and men for this purpose, uhicb
he said he bad a commission for.
Now, gentlemen, against all this be makes
hut a very small objection.
As to the matter of two witnesses to every
overt- act, that has l>een over-ruled by the
court; autl as to the arms, be says be found
tlif m at bis house n hen he first came to it ;
and then tbey were obi rusty arms, but of this
he gives you no manner of evidence. But if
they were there when he came 10 ibe bouse,
bow came he at this time of day to hide tbera,
and secrete them ? Why might ihey imt be M'
public now bk they v*ere before be came, which/
lie has had time enough to prepare (o prove
since the tinding 0I them ? And lie does not
give you so mut-'h as any colounible rea^ion
why he so^ecreled them. And therelbre it ir
a most just and violent sus^iicion, that tbej*
were for the purposes thai the wittiesscfi harir
183]
8 WILUAM III.
Trial of Sir WiUiam Parh/nt^
giTen yoa an aoooimt of; and you hare reason
to beliere tbey were pronded for to arm that
number of i6eo, which he was to raise to assist
the French when they came to land here. So
that if you believe what the witnesses have
■worn, you cannot say but that he is guilty of
the treason charged upon him ; and we doubt
not you'll find him so.
Mr. Cowper, May it please your lordship,
and you gentlemen of the jury ; I am of the
same side of counsel for the king. Sir William
Parkyns has given us a good caution, which
I shall take care to observe : and that is, not to
strain either fact, or law, to his pr^udice. But,
my lord, when such a mattei- as this, a crime
of this nature, is so far proved against the pri-
soner at the bar, that nobody can in his private
judgment reasonably acquit him ; then I think
it a good piece of service to the public to make
the matter so plain, thnt it may be pot beyond
all manner of doubt, both for the ease of the
jurors, and for the satisfaction of all others that
hear this trial.
^ M V lord, sir William Parkyna has truly di-
vided his indictment intu two parts, the one
that accuses him of being concfirned in the as-
gassination, and the other tliat accuses him of
being concerned in inviting the French into the
kingdom, and en>;aging to meet them with an
armed force.
My lord, as to the first part, I must do sir
William Parkyns that right, that there is but
one positive evidence as to the assassination ;
but that evidence tells ye he agreed to it at se-
veral meetings ; nay, tliat he was one who said
it was necessary to be done, in order to the
other design he was engaged in, the facilitatintr
the landin;^ of the French, and king James his
descent and restoration. There is, 1 say, in-
dood, but one witness of that matter, but the
evidence of that one witness is coDtirmcfl by
many concurring cinMimsUmces ; by his send-
ing tor horst's to town the day before the first
Saturday, u hen this execrable treason was to
have l>ecn exocuteil ; by sending thcni out of
town again that day U|K)n the disap|K>intnient ;
by sonding for theui again the Friday before
tlie MToud Saturday that the kiuir was to have
been a^^sussinati'd ; by his bavin;<: more horses
than were usual with him that day ; by his
taking care tlirn of three lutrses thnt were none
of his own, and one of tlniu brought very
sus|uriously fhmi S«unerset- house; and that
all thest! i'itfht horses should l»e immediately
hurried andranitHl a\«ay upon tiic disappoint-
ment the seot>nd Saturtlay, and nothing; cvit
heani of them atWrwards.* I say one of them
was hn>nght « cry suspiciously ; for, my loid,
you observe it cainc fn>m Somerset- houses and
was si*nt by l^ewis aei*oidin!r lo the prisoner's
promise to caiitain Porter, which I>ewis, it is
apparent by all the witnesses of this matter,
was pri\y*to this design.
My lord, tliere is another circumstance be-
tidea this, which, 1 think, has not been ob-
MTvcd ; ami that is, bit Miiding for Sweet up
to town bafora the moomI liiM that the Idog
was to have been asnannated ; he
indeed before both the times: the firs
was told by the prisoner, he hid once
to have us»d him in a business ; but
cond thoughts he had compassioB fc
mily. And when he came the second
was first asked what condition he ha
family in, whether he had provid
money. He said, No ; and tliere upo
chid : and the priioner said, he migh
well have staid ^at home. All these
stances, besides the one positive evid<
vour strongly of his having a great hi
design of assassinating the king.
Bnt then, iny lord, as to the other ]
inviting the French, and preparing
them, that is positively proved by
nesses. Captam Porter tells yoa, tha
soner was at the two meetings in Le;
street, and St. James's- street, where i
])ressly resolved by all that were pret
the prisoner among the rest, to send i
over to invite the French to invade tl
dom, and to promise to meet king Jan
landing with two thousand horse. H<
That sir William Parkyns did pa;
agree to what was resolved upon at
consults. And Sweet tells you, thai
prepared for the same design ; for
William Parkyns told him the kin
land, he had his word for it ; and h
had a troou of old soldiers. * My tr
* consist' (lie spoke it in the present U
it being a doubt, sir William Parkyns
self that right as to examine the witne
and he repeated- it as his words) ' 3
*■ consists of old sol<liei*s, or is compos
' soldiera ;' and he was to have sever
teers that had been ofhcers.
My lord, these two positive wiin
evidence that goes to the same spccici
son, nay, to the same design, the rais
bi'llion, and the deposing the king,
killing him in lus politic capacity ; I s
two g(t home to the same design.
Anil, my lord, this evidence upon th
of the indictment, is corroborated tOd
strong circumstances. There is a joi
Li>icestcr, >^hich Sweet speaks of, thai
Parkyns told him he would underts
journey it is provid by his servants th
undertake : that he met there with sev
sons, and came back and made his i
Sweet of the success of his journey, ;
well dis|>os(.Hl the king^s friends were, 1
name he always meant king James ; 1
he s|)okeof our present king, he called
IJitle Geu'iloman, or sometimes king
and sometimes, as the w itness at laft s
tively. the prince of Orange: but \
spokeof the king, uitliout anything
alwaj^s meant king James; and bei
sfioke of a kioj; that was beyond sea a
iBas last, which could not be king
who was then, and had been in EngUnt
before.
Aly kird, the pr itooer in hii defenoe I
'High Treoimi*
him thai went with bim loto
been formerly Charnocli's
«Dl hy Char nock with the
aod not by him. Yet
fciit the evidence swore po«i-
I by sir William Parky ns, his
lit the note in the aliiianack
1 to whom lie was directed to
I at the caofectioner's housif;
Imt done, that the person that
^ ctiotier*8 did not remit him
► hk nin'^tersirWiUiDm Par-
would lie at liorae,
. er he should iiave
sad this WAS upon the very
fwms to have been aswssi-
William Parky n» ha« corn-
lie ctiM h&Te had his evidence
ksfe imivcd the arms had been
m bause, and that he found them
CiflQO thither first. If we should
r, we niiifht confess* and avoid
ipfiiirent that these nrms were on
{mt tip in a suspicious manner
sent to Haywood's (who is a
ion, by reason of his relation io
Etitlfotl whuse letter und recomnkeda-
iipceivefl)^ and concealed till ttie
ted ; and then they were
\ that place, and buried in Mr
own i^aiYien. This was
■tJa^'mg out of the plot;
d for the better securing
t>ds. And rthereaii the
II ere oKI and rii9ty
nu it now appears they
•lurbijkhcfl arms, and the
1b, and packeil together,
ftcour^c to another arg'u-
pUcf% the riio*l inovinrj-, 1 must
and that ia the art^nment of
of his education in the
n* of his ioiiniiitie*, hi«
y Arj^uincnts of pJty I am
guc II ri ttfrsw^r to» and UiouU be
I any niotion«4 of it ;
1 by vvay of answer
" t he
\i* i in
ImM ban* bij v,
IfloUCll hi 1/I...S '---•-■■ •'- ^.<.u^>it
Btnil 46«iilayt>i» ; that hi< ^l^atlil h»vo
f ii|ian lb. J. ,1 of kiiigH uimI the
mm ; !• t-re wai no jiity.
•J lhpii|: ' l.iiil their dcsityus
krf taj ^ er, hut they
Ujm, Htkii rjer-
Ui>u ai Ei^^^n^sinatinir hiui
di<»j»|H»iiitpd ; that it
V under-
A- D* IS96.
[ISG
Mke out, ami
appear
for it ;
iiNill« iUQi, I tUiitki of his
defence ; I Tiave^ as well as 1 was able, give
an answer to the objections made to it, and I]
muat now leave it with yoii, gentlemen of thtr]
jury : and IhoDgh these considerations that | f
hare mentioned may not quite remove all com* {
passion, yet they may serve to confirm you tB
a resolution of doing the king, and kiu>rdoiii|J
and yourselves justice ; and that is all weaskl
of yon.
i. C. X Gentlemen of the jury, sir Willian
Parkyns is indicted of high -treason, for design •
ing» 'imagining, and compassing die death of J
the present km^. There have been severalJ
witnesses produced that have given evideno*!
upon this mdictment; the first of th«m is Mvml
Porter, who has been a witness beretofor«J
against several upon the like occasion ; and
he gives you this account, that about the latterl
end of May, or the beginning of June last^J
there was a meeting of divers persons at thM
Old King*s*head tavern in Leadenb all -street, till
the city, where they dined together; and the
was sir VViUiam Parkyns, captain Porter Ijim*
self, sir John Fenwick, sir John Freind, and i
diversothers that be has raentionetl to you. Afl
that meeting they did consult together, whicli.]
way the late king James might be restored, and if]
was thought very necessary that there shoulil ]
be a French force sent over hither to Join with^
others for his restoration. And they did amon^ ]
tltemselves agree and determine, what number I
of forces might be convenient tor tliat purpose ■ J
they did propose 10,000; 6,000 foot, 3,000 1
horse, nnd 1,000 dragoons ; and that a messagr I
should he sent over to king James, to peri^uada '
him to snhcii the French king to furnish hint i
with sach a number of men, to ha sent over
into England. Mr. Cbarnock, that was thea i
in the company, was lU<3 perbon agreed upon j
among them to be the messenger to besenlj
upon this errand ; which en iployment he did I
undertake, upou their promise, that they would j
I'aisc among themselves 2,000 horse for to me
the late king at hi^i landing.
This being at that time determined, and Mr,
Charnuck having accepted this employment, hm
did make preparation to go upon thLs eri-and. In i
some time alter (a week or a fortnight, ortbere« I
abouts) there was another meeting, at whieb '
were several of the same persons that were
pre3!«etit at the former, and among ihem si^ j
William Parkyns was one ; and tliis meeting ^
was at one Mrs. Mountjoy'a, that keeps a i
tavern in 5>t* Jame8*s-street, where they did 1
<lt**cuur5e of what they had formeily agreed f
upon, and did again consider, whether thejJ
should proceed tosend Mr. Charnock with that j
meiisage ; to which thev all ngreed, that Mr,
Cbaruock should go, and he accordingly wenit J
and captuiii Porter met him abimt five or s'lv]
weeks aficr the nteeting at Mrs. Mountjoy*t|J
and Charnock told him he had been with thaij
several persons tvho had sent him, and had nc*
qnainled them with the answer of king James | J
which was, that at that juncture of time th«j
French king had Hucb occasion for his foree% I
that ho could UQi ^ptire tbem, or furntsb biua 1
ItZJ 8 WILLIAM UI.
with fo iBADy to come over here. This is the
lint matter tbat Porter givev you ao account
of.
But then captain Porter tells vou farther,
how the design of assassinating the king was
set on foot about the latter end of January, or
the beginning of February last; about which
time sir George Barclay was sent over with a
commission from the late king James ; which
acems to have given great encouragement to
that paity of men : For sir George Barcley,
captain Porter, and sir William Parkyns,
wiih divers others, had several meetings at the
Globe tavern in Uatton-Garden, the Nag's-
Ueiid tavern in Covent-Garden, the Sun
tavern in theStrand, and other places. And at
these meetings they entered into consideration,
what was the best way to restore the late king
James to the throne ; and it was agreed among
them, that the best means for the effectine that
restoratioD would be to kill king William,
which they resolved to undertake; and at
these debates and resolutions sir William Par-
kyns, the prisoner at the bar, was present.
Cfapfain Porter being asked whether sir Wil-
liam Parkyns, at these consults, did consent to
tile king's murder, he said they did all agree
to the asisssination of the king ; and sir Wil-
liam Parkins said, he thought it was very
necessary to be done, to facilitate the restora-
tion of the late king.
Gentlemen, this design of assassinating the
king being thus re&alv^ upon, the next thing
considered among them was, how it might be
effected. There were several ways proposed:
One was by an ambuscade ; for the king having
a house in the countiy by Richmond, his Ma^
jcsty u«ed to go once a Heek a- hunting there-
about, and to return at night ; and therefore
an ambuscade on that side of the \^ ater, near the
house, was pi'o|Kiifed. Then another proposal
was made to fall u|H»n the guards on this side
the water, and at the same time that the king*s
coaoh \%as to he »et upon. And these two
places being propoM'd, there was some dif-
ference of opinion amung ihcm; whereupon it
Trial ^ Sir JVUUam Parkyns^
other two were to be mountad by
tain Porter's providing; Mr.* Porter
Chamock, and one Rookwood were to bi
cipally engaged in attacking the guards,
number of men agreed upon for the
were about forty, or itvr more, and sir C
Barcley vras to have a party oat of theok
about eight ; and as tboae other* went
upon and charge the {guards, air I
Barcley with his party of men, was lo
the king in his coach, and by abooting i
coach to kill the king and all tbat wen
him.
The time ajfreed upon for patting %
sign in execution was on Saturday &e
February. That day it was expected tl
would go a hunting. And two mei
nlantod at Kensington to give notice w\
king went; and upon such notice the
were to march out in small parties,
lodge in the inns and public- bonsen
Brentfonl and Turnham Green, upon w
the king's return from the other aide
water, and sir George Barcley waa to
readiness to set upon the coach in the
and the other party to attack the guards.
But this horrid design was very happfl
covered, which prevented the kinff^
abroad on that day ; and thouffh they
disappointed for that time, yet the des^g
not at an end : But tlicir resolntions qm
to make the like attempt when they oooU
another opportunity. And for that |R
there was another meeting, as captain 1
tells you, iiiion the Friday following i
Sun tavern in the Strand, at which sir IV
Parkyns, sir George Barcley, Rookwoo
Chamock, and captain Porter, were pn
and they did agree to attack the king a
guards the next day, in the same |dac
manner that they had formerly agreed
But by good providence the king had na
it« so that he did forbear to go abroad tha
whereby these conspirators were total!
appointed of their barbarous and viUuno
sign which they had resolved upon, ao
WHM agretHl thai some persons should be Kent j made such preparations to compass.
to view the ground on Wli sides the Hater,
which |KM-KunH wer» eaptuin Porter, King that
was exerntml, and one Knightley : And so
siiinv days hefon* the 16ih of Februaiy they
did go un bntli sides the \«ater, and viewed the
ground, and reiunuHl in the eveniui^ to the
Nug's-head tavern, nei*onling to ugreeinent ;
when* were met together ^^ir (ieorge liHi'eU\v,
•"Vlr. ()hariiiH*k, an<l the prisoner ut the har sir
William I'liikyiiM. And ihere they made their
rejioit of their «ie\v of the ifnuind ; upon which
Uitli the iiiopoHaU were debatetl ; and at last
till V did all h|(irt« tliat the attaek should be
iiiiido u|Niii tlis king on thiK side of the water,
III a iune that was lietwiHMi llrentloni and
TiiinltaMi KitHPu; and the attack uinhi the
giianla waa likrwl««i lu be made thsreanouta.
Nir William Parkyns was to furnish five
liMiaaa, whereof ibraa of Itan wara in hn
UMlii by Mm aT Un #w piffUhif | Ai»
It is true, captain Porter does tell yi
William Parkyns was not to be one that
be actually present at the assassination ;
was to furnish five horses; three of then
mounted by men of his own providing
tw o by men that captain Porter was to pi
And you are told jiositively that captain 1
at this last meeting, did complain that^ I
hit horses were fallen lame, and aoqaau
William i\irkyns with it ; and he prom
III Ip him to two more by the means i
liewis that was gentleman of the bone
loni Feversham.
Then \ou are told, that sir William Fi
sent to Sweet to come to town the litis
bruary, and Sweet i^>mea to town aeoiN
on Wednesday the l«th of Febmair; «i
be hail discourse with sir William Pbrli
bialo^nn; where «r WiUan ttM M
Wm^mSkj^km
J&r High Treamu
bdlflm he intended for biin, tnil
Ed Mm f« buitie again ; and iviihal
tofa« teltim to i<»wti the Fmlay fcl-
d witef Hid i^r(»ovii lo litin^ his h^ir**^.**
|>« nwotiAfied tbree lini-ses which
i , -• -7" '♦ he had. The ^r mho
-.o-*, mid Swewl came
.-. „ ,„,» ...> luait till SimirdHy. 8ir
nrfymtftht, he thought to i^o out of
ftfin^rfumn. tjitt tliil not, hiiL !4aJd till
I town.
Aing^tbe hOTBesof
feP«^kyl]ft v*er4; hrouifht to town
I BMW wer« <»Mir, and wrre set up
Mf^^inn in llolborn; Mini it appears
Leirii fiirn't«hcd one horse; lor there
|tafi»u)>on the iiccounl of hir Wm.
^Kid« a roan hor«^ wai* ottf , which
Hiicraet*huu»e. This ifi proved hy
'; ndllnt Leuia him^eircame in on
biheaft^rnomi to iaqiure Ibr&ir Wm,
; b»jt he wan ^iie, and the horses
raj", and h** once came with sir
|)fn% Uk the inn. These are cir-
ili> < rinrur w^fth and confirtn
- fsonccrniug the |>n}-
iciiUr of captaiu
- the comrnisHioei
, wliieli t> ii'^mnrkahlt?: it was
a«krd Ch;irn4H.'k whether he
iiin : lie sai<i» No, hut sir
: and sir Wno. Parkyns
as tlicy were siltinn^ by
ler he had seen ttie oom-
* " ^' ' 1 1 .' answered,
>\ and it TV as
. uui. i..,.j«j ; and thai
► make vnr upon the
..i ;.iug', who was called in
L9 ynii may si4M>ose, the
^ tbftt, geiithMnen, ns lo
Wtfiiiialing ihektni^, and of
y i»hidi vraa oiiderstood by them
f^n%p.y thifl 16 the sum and ^wh-
^*8 evidcne^?, w nttendeit with
by itiese cirf?aniiitauoe8, as yuu
wit»f*x«« Sweet, who wag
of sir William I'arkyiM,
"■ last he iras
'S il*^t the
i> hi' uiMirrslond to he
He aitked sir William
\^ it? aud he fcaid, He
Ifvr tl; and that \m irmn» con-
'■ ^'- ^, He
^ anil he did i^
wn^in Jatjuarv,
itirr, Th^y
iijd I he next
tvfnit with
'ii'jli, and a
"^" «>t Y-rknijire: aud
Mytn
•rt kt Mid, He founll all
A. D. 1699. tlW
thereto be Terv well ; and the west was as wett
inclined to the king's intei e«it as the north ; and
a herd's brothei- wasconeerned.
Tiien in the next plncc you are tohl, That
at Michaeltnas last Mr. Cbarnock did write a
letter to one Haywood, who had nnarncHl his
sjfiier, and llvtd near sir William Psrkyns in
WHrwiekshire, to desire him to receive *ome
sfoeds into bis house that were to come from
sir William Parky ns's, and lay them up terr
carefully ; for they were? eboice ifoods, whicft
sir William durst not leave in his ow^n hoiraov
berauAe he had left it. And accordiuiily there
wer«? lb CSC bojces and chests sent to lla^ wood*9,
and receiired by him into hi«i house, where they
continued till the latter end otrebruury. Hay-
wood about th(& lime, when the destg'ii of the
As«iasfii nation was on foot, met t\ith sir Williaoi
Parkynsin town, an*! asked him how he would
dispone of those gfoods ? TherRiijjon sir William
Parkyns sent hi^ servant ioto the country ; and
notice was {*iven on Ash-Wednt^sday, the Wed-
nesday after the 6r8t proelamntion that i^ued
upon the discovery of this conspiracy, that
i\wsii i^oods should beremovetl : and a man, in
the evening, went to Haywood** bouse with k
cart and horses, and removed these chests;
they were three in number ; and li^iSL hemj»
opened, there were eight le^iser ones taken uut^
and carried away about nine or ten oViock at
night to sir Wifliam Parky ns':^ house in W»r«
wiekshire, where they were buried in tin*
garden, and afltrward weru dugf u]i ; whicit
was at the searching' sir William's liouj^ upun
the bieakintrout of the plot; and when they
were ojirned, it did appear what sort of go<wis
they w ore : they were arms, a considerable
fjuautiiv of ibeni ; four dozen of Kwonb with-
out hills, twenty*<iTe pair of pistols^ and m
grcJit number of carbines, th'rrt) -two as 1 re*
meiiiber^ and a puree! of hills packed up in a
box by ihcmpelves. This, grenilemen, is swora
to you by the persons that were present at the
dig-jjingf them up, and opening' the boxes. ^
Then, gfentlemeu, you are told, That ibou^h
sir William Paikyns pretends Tnc*' were arms
ihst he found in the house when t^e came \\x\*
thcr, yet they were not old msty art>is^ as ha
pratends, but they were very brig^bt, aud Irt fbf
uw and service.
There is one ctrcumstaBce ntofe that /jem^
to affect sir Williawi Parkyns, ab^ut the besi-
ncM'^ of the assassination ; and that is prced
by Eubank, bir WiJlium's own servant. There
was a note seat upon tSuturday, the 22d of
February in the morning ^ to one Brown at
KenBing"tont by sir William Parky ns's man ;
aod this Brown writ in the servant'^ Almanack,
that he would be in town himself in a little
time^ iind bid bim carry it lo a man that lodged
at a confectioner's over as^ainst Gray's-inn gate
in Holkirn: sir WlUiatn Parky n'i's man ac-
cordingly goes to this confectioner's, and
S[M'akii with the person there that he was di-
rected to ^ri to J and he says he was a ^k;otch•
man^ and talked broad like a Scotchman, and
he bid bioi go aud idl Itit lutster^ tbtt h^
K
\st]
8 WILLIAM IIL
Trial of Sir WilHam Parhym^
and
would stay within for him till be came
he did accordingly.
Gentiemen, This is the sum and substance
of the evidence that is iciTen against sir Wm.
Parkyns. Now you are to consider what sir
Wiltam says for himself: he does admit, and
agree. That what Porter says is very positive
and full ; but that is but the eridence of one
witness : for, sa^s be, by the law no person
^oght to be convicted €f h*igh'treason upon the
testimony of one witness* As to the matter of
bw be is in the right : no man ought to be
CDovicteil of treaMHi uikmi tbe testimony of a
single i«itnc58. * Now, nrst Suppose the desic^n
to assassinate the king had not been proved ;
consider then whrtlier there be not two wit-
nesses besides. Porter proves, that Chamock
was sent into Fiance, by sir William Parkyns,
and others, upon that errand ; to uhich, if you
add the testimony of Sweet, that swears, that
air William Parlivns told him the king would
come, antl he hail a troop, and had bought sad-
dles ; and what is said concerning his going
;nto Leiccsterahire, and his having a quantity
fii arms : if all which be understood in pur-
suance of the design against his present ma- -
jesty, then there arc at least two witnesses of
several overt acts of tbe same treason.
For, gentlemen, I must tell vou, though
there had heeii no evidence ui a design to as-
sassinate the king, but the desigti and purpo^^e
bad t»ern tu dcpuse him, and set the late king
upon the throne, or join with a force to invade
the realm, that is high-trcasitH within the sta-
tute of 25 £dw. 3, as bt-iiig a designing the
death and destruction of the king. Tliere hath
been a full proof by two witnesses, if what
Sweet, and the other witnesses besides Porter
say, tu pro\e sir Wdliam Parkyns to he con-
oerncil in that design, which shall be consi-
dered further of by^aiid bye.
Unt in the next place, suppose that the
me(*tings at the King's- Head in Leadenhall*
street, and at Mounijnv's, had iu>t been proved ;
but Vie desi^-ii to aNsassinute the king is proved
by one \« itncbs, and the providing men and
arms to fi^iU against him is proved by one
other witness ; this is a pmuf of the same trea-
son : for though the overt acts be several, vet
thev both tend to the same end, the distinction
of ilie king, thouuh in a different manner ; and
though the law requires two \^ itni'ssc>s to the
same sort of treason, yet it does not require twu
witnesses to any uu« overt act. For if one wit-
ness prove one overt act ai one time, and ano-
ther witness prove another o^ertaot at ano-
ther time, these are two witne^syeK within the
meaning of the law ; and so it liaN been always
practised, and never denied to be law that I
ku.iw of.
Besides, it is oliScTvaldo upon tlii« ]H)int,
ivhich my brother has inintioiiid, that t hit in* w
act of parliaiiieut, which dot's not yi t lake tf-
fect, provides, that there shall he riilu r twu
witnesses to one overt art, or one uitiuas lu
one, and another to another of thu aaiiir s|i«eimi
•f treason} and you bnftthad tbvopimuB ol
all of us now that are here, that tbett are
acts of one and the same species of treaso
Bnt then sir William Parkyns objects,
Sweet does not prove any overt act. N*
that, you are to consider'tlie force of 8
evidence, who tells you the discourse
William Parkyns, ab<»utChiistmas last,
king's comiog, of bis saddles, and of hk
consisting of old soldiers, and volunteer
were old officers. But says sir Wm. Pai
this is only words, and words are not tr>
But then oonsider, that they are word
relate to acts and tJiiugs. You hear be
great quantity of arms, beyond what be
private man, could have occasion for, or
use. He does not uive you any accona
he was to ilo with those arms, or to whs
pose he sliould keep them, nor why he
them to be removed in the night, aftn
had lain privately in Haywood's bona
caused them to 'be carried back to b
house, and buried them in the ground,,
such a time when there was a plot, wm
the plot was discovered, and a prodamaB
for his own apprehension.
Sir William Parkyns's disooorse with,
of king James's coming, and .bis troo
sisting of such men, plainly shews wh<
anns were for. For, gentlemen, meK
courses and tlieir woitls explain their «•
and an indifferent action in itself mky
explained by words, that it will be noi
It is lawful for a man to buy a pistol ; I
vskn be plainly proved fron; bis wonbi
s|>eerbrs, that tbe design of buying it i
use it against the person or lite of tbe
that willbe an overt act. Now, vi ben stl
Parkyns said, The late king would oon
that he had a troop which consisted of
soldiers ; then these arms being found i
manner, I must leave to your considc
whether it is not a proof, for uhat purp
did provide them, and to what use he bl
to put thi'in ; especially since he gives i
account, uhat use or occasion he l^d for
He says, indeed, he found them in tbe
two ^ears ago ; how probable tliat is, yo
consider.
Then there is another thing, his goin
Leicestershire witli Scudamore, and bis
iug there with Yarborough and other pe<
that private and hasty manner. He wi
on the Thui-sday, and came home agaii
Monday ni^rht ; and then he meets with 1
and tells him that all was well ; and tbi
was as well inclined to the king's intercil
North. What king must he mean? fl
no commission from king William to |
I^icestershire to discourse with people,
how they xtomi affected to bis interest,
loinca uiul tdls vou, tliat when sir ^
I*arkyu8 N|N>ke of the king, he undents
meant king Jamca. 1 must leave it «
coiiiinlcration, Imw you will interunt
wonls.
Iitiirw.gwtlemen.ititnotfiitbem
btujfiiniMaorfbmdt
I
US} Jor High Treasoiu
i iDin^f wnrds or actions, wbeo he is trteil for
Jiis lile. You ought to \\h^e a lull am) s^iti^-
hctaitj etidcQce U* convince von, tliul lie is
nHty, before you pronounce liiiii so ; Ikii,
Kowtrer, you are to cooAidf^r ibe naiure of
ibitig^, Slid the eircuinstanccb lUat attend tliem.
If \»Mi i-.ju vu|ifKi»e that lie went intf> Lt?icesier-
kiiur to kini: NV illiam*s frieufk, ami that he wns
I op nn, the West was a^i frell affected to
hr<^ \\ ii;i«iai as the North ; then you make a
Ufrrttt cointtmction from Hwe»^t^ who tells
rl» tiiAi always when he spake of the king,
OQilerstood it of kini^ Jame^; nod ul Chrm-
Ais^ when he spoke of the kiu^^s crmMii|>;i it
ttnal be meant kin^ James ; fm kiuj; H iSliain
«ii ber« iHffofv, and he preteuttH not he h^d
my autbority to raise a troop forking- WiUiam.
60 that, gentletnen, 1 inuRt leave it to you
2 m the whde matter; if you are nalislied,
titr Wil'iQin PjLrkyns is g-uilty of the tnat-
Unffwliicb he standii charged, you will tind
Vtfa^l^ ; you have heard the evidence, nnd
wilooosider of tt; and if, upon the trhol«.v, yoii
■« Mt feaLuHcd that he is gudty of the nuiiers
cbmed itt ibb inJictwent, then you are to ac-
fDtitm.
IWa fto ofltcer beb;^ sworn to keep the Jury
leeorliim to custom, tbey witlidrew to constiler
oCtbor Tmiict, and in less tliun half an hour
miimeil iota couii.
CL^Ar* Gentlemen of the Jury, answer to
}^iiritti»a. William Xorthey — '-^
%f, Kort/tcy* Here. (And so of the rest )
CLtfAr, GeatleineOf aj-e yoti all o^eetl on
)««ri«fdicl? — Jury. Yes.
11 ^Ar. W ho shall say for yon ?
huj. Out tbreniau.
Cl^ffAr, Sir VViiUam Parky ns, hold up thy
ia4 nVbich he did.] I^<jk upon the pri-
kom fsmy ye, is be Guihy of the hii^h-
M^bereof be stands intlicit^d, or Not
€l«tf^,-^Forri«Miif- Guilty, my h>rd«
C^ v/Ar, VVIiiit (/ooda or chattels^ lands op
hail he at the time of the hij^'h-
oommilted, or ut any titne siuee ?
Tmrtmmrt. Nune^to our knowledge.
X. C J. Jailor, look to him, he is found
f adty of high treason.
CL of Ar. Then hearken to your venlict as
the tmiri has recorded it. You say that sir
Williaia Parky us is guilty of the high-treason
wbrceof be stands indicted, but that he had no
I^Qods or chattels^ lands or tenentenl^, at the
Hmeoflbc high treason com mitt etl» oral any
^lae since, to v our knowledge, and so vou say
aU'—Ary. Ves.
CiuOfjir. Gentlemen^ the court discharges
|«ii, and tbaiiks yuu for your service.
Wbik! the Jury was withdrawn to consider
of the rcrdict, sir John Fiemil was broutrht
fttm Newgate to the Lar^ in order to his being
ClM to Jv»dgtiieot, and after the verdict, be
Mnu^ himself to tlie court tbu» :
Iftind, My lord, I humbly beseech your
«bHibi^ to ^ve me leave to read tbii Pitpcr*
A. D. 1696* [1S4
(To which the Court gave n^; answer.)
Frcind, My Lord, will your luidshipgive m«
lea) e to read it P
L. C. J. Ay, if you will.
Frdftd, (Ue'ntl*!.) My lord, Ihnmhljmovein
arrest of judg^ment, Ihiit I am not convieied of
treason liy two w itnesses, as i ought Ut liave
been within the statute of the 25th of Edtv. 5 :
tor Mr. Porter swears. That 1, with others, in
May or June last, sent to the French king to
invade England ; he is the only (Witness to that
matter, Mr. Bbir swears, That I sljeived him
a commission in 8urrey- street, about two years
E»inoe, sitjoed by king James, and cntnter-
Bit^^ncil MeUbrd^ to he a colonel of horge, and
that 1 gave him some mouiea for the cherish-
ing of Llie men. My lord, here is no levying
of war t(\vom by Mr. Blair; and consfiiring to
levy war not being treason, I am convicted by
one witness, and therefore I pray coyosel may
be assijpfnrd mp, to plead thiti matier.
L. C. J. !Sir John Preind, that which you
move now is not in dVresl of judgment ; it 'm
matter that di>es arise uj»on ihn ciidence, and
what yuu now &ay, arraigns the verdict, and
the prr»ceeiliiigs upon your trial There were
two witm sses agamtit you^ that m plain. You
were not indicted tor levYing war, but for com-
passing and imnjiri'iin? *l*«i death of the king ;
and we told yon the design of the invasion, and
c< inspiring to depose the f»re»ent king* und rc-
storc' the late king^ was an o\ ert act of that
hi^h treason. The romuiissi^jn waK not so
much stood U|JOnj but the advancing; monies
U]H»n ibis account, to Bliiiryour Ueu tenant co*
lone], to give to th« men, that wna a pldiu overt
act, and oo there were certainly two witnesses
against you.
Fr^md. Ms lord, I hope 1 can clear myself:
1 thank God, 1 am as innocent as the child un>
bom, of the assus^in action uf the king. 1 ivould
not have the peupLe think that I am such a
man.
X. C\ J. But you remember, it was sworn
you knew of it, and we hai e told yon, that the
design of restoring the late king by force, and
de|ioi»iog itte king, are overt acts of luiaginiog
his ileath, if such an intention be provod^ a^ it
was in your ease, and die jury havo found
it so.
Freiad* My lord, I humbly beseech yoti,
because t do not understand matter of law, and
am advised to move thi£ in an'est of judt^ment ;
I desire my counsel may be tieard to it.
L, C.J. VVe cannot hear counsel, but upon
upn
iVe
is, the indictnieiii. We cannot enter into any
examination of this matter ihut you now speak
of, vou had a long trial yesterday.
Frt:ind. .^ly liird, 1 am sorry to give yottr
lordiihip any occasion ot' double; but 1 hum-
bly he&eech yon, if it may be, that I may be
heard by my couuHel, for the satistitctEon of
the world ; pray, my loid^ hear M^bat they can
s*y.
L. C* X They cannot say any thing ; 00
coutisel m the worM thai Lmdersund Ibeu-
I 1»]
8 WILLIAM in.
I
I
Trial nf Sir WUUam PnrHyfis, [
miUen, c«ti annw tiny t!iin(f ii^iiinst wh«t h«s leant silting with the rest of tbtf cAmi upon
been so (>(i«n willed and always practised* wjocb, pronounced the scntcoce.
Freiud. My Innh if it be to^be granted, I br- |
leh vour lnrdNUi{t tii i^innl it^
L, CX ll cannot he g-rantetl ; besideft, the
matier ytut now move UjM>n is imprn|H'r ; n wn*
all rnnsidered upon your tnal. It was tokl
you, we tlid all a^jree. that a oompiracy u\ levy
wj * * .
(b
ftl your trtjil, and that U miw ut ti%
Far ky fit. My lord, if yonr loriUhi[j f»leaiieK)
I desire 1 may have the hb^ity of fome frieuda
mill re)dtions« and a minister to dwne to me.
L, C\ J. Yc8« yen, by nil jneans,
Com, Serj. You tlie priaonem aV the
fir John Fiernd and inr William Pnr' ' ■ '
hafe been indicted lor high-trpas -
paasin£r the d^ath anddesirtietion <
for your trial, ytiu have pot yourself I
ar to depose tlK' king la treason; or to invade ^^^/^^^'^iTy' '''}''^' ^^'^^^^V'^ ^^ '^^
.ermlm is tr-.is«n. All this ^a» lioosidcrea . ^^^'**>'^ ^^J? ,^*^'^<^« *^ **^« (?rcale5t tn
judgpient ot the law l hat a man can com
and it is Justly and ri^asoaably tm. For r
l»ery and (uunter are injuries to prUaie
bttt compa^iny^ the death of ihc l^ing^, ii
pa.'^iinjk^ the dt^strurtion of the father of y
aoc
Farki/u,. If yJur lordship pleai*es, thatlluv | *^"»>*'*.V, and letyng in rapine, death
i«v^,,m« »«.! i,* ..«»«.„ „.:iL „.„ \.^,i ...«:. fiolatioa uimo thousands of ncoidc.
may come and be private willi rae, and |»ray
let rnc have a rule of court for it, olherwiae l
aball not havo any benefit of it*
L, C, J. Yes, ye«, it is very fit yon shauld
have it ; there %hall be an order of eSnrt for it ;
•6e that the keep^-r take care tt he done i» itb
calety.
ftetnd. My lord, I desire tlie same rd>eHy
of a minister, and my relf:tio[is and friends to
cofnr to ine ; that for w bat lime I biire to live,
1 may niakn ihe best use I can of it for my
Boult which I hopeGoil will enable me to do.
The Cotirt was adjourned until five oVlock
on the ilUrnoon, and aboiit six the justices re-
lornt^l, and th«^ court was rej»umcd,
Ci.of'Jr, S^l rJr Jr»hti Freiud lo the bar:
(wbich was do;."-**) Sir J<Au\ Fuind^ hold up
thy band, (which he did.) Tlu»n siiindesi roo^
victed ot hit'-h-ireiison, for tiailoiously fjrn-
passing' nnd imagifuijj; the death of oni so-
Tereigij lord king Willwm tne 3rd. What
canst thou say for thyself why lliecoyrt should
not gife thee judgment accoi'ding to the law ?
Then belng^ made io kneeli he afterwards
stood up,
Freind, I have said already, what I have to
any in arrest of judgment.
dnu. Strj, 8ir, yon httie heawJ the juds^.
tnent of the rourt, as to what joii have said ;
if ymi have rjo thing else to offer, the court
must proceed to jud;T;ment.
CI of Ar. for Middlesex. Sir William Pnr-
kyn^, toldupihy band, (which he did). Tbon
standest convi* t<,d of hi j^h-treasiou in rumpnss-
in^' and imagininij: the death of the kiugr, and
adheringf t^i the Icin^^'-'g ^n^i^it^s, Wbatcan^i
thou »ay for thyself, ivhy the court should not
fTive thee judtfoieni to 'die, accordiDg^ Io the
He was made to kneels and rise up again.
Fnrkyn^. I have iiothingr more to offer.
C7. t^f Ar* Then, cryer, make proelamation.
Crycr, O yes; all manner of jiersons nre
coiumaniled to keep tsilence, while judgment is
io ^iviiig^, upon pain of imprisonment.
Which Proclamation was made on both
•ides ike ootitt i and iheti Ui\ Coniinan 2fer-
pco[de. .ind <
this, the liemonsest of offr K^es, is Ca|mbl4
ap.;ruvatton ; for there have hcuii always <
cufae$, and sninetimes justifications for
lion: and as to murifer and private re veil
ihcre nmy be somewhat said iu mitigation fr
ibe violence of men*s passions. But to
and conspire, and eousultf and debate the
struction of a prince; no man yei ever had
confidence to muke an excuse for it. 1 wo
nol add to your uffhction ; 1 am f^^isihle of!
severe jndiirnient that is io fothiw, ^nd
you ha»ebron!^bl upon yonrsclvrjt, and
but oity ym\ for the irrear burden of ^uiU ^
yon have laid yomselvt"^ umler. 1 onlv say
to offer it to your serious contfdf ration, in
few momcuis you have to prepare for aooi
wui Id, nod another jud^i ment. Ail thmt
lor me, is to pruui>uuce the jud^iitent of
law in theiie cases, and the court does^ awin
' That you^ and ench of you, i(o hack 10
* place from whcnte you came, and from tkt
' oe drawn o'^i n hurdle to the place of execiit
' wliere you f.hall be si^vcrally haD|(e4 vp
^ the neck, and out downalire; \our boi
* shall U-npfrtdnpen, your privy members
*of), yuuf hiH^ek taken out and burnt lid
» your iinea ; your headii shall tie sevt^red fi
' your bodies, your bodies rei|ierli)ely to
* dividcil into iburipiarters, and your beads
* quariei-s are In lie at the dispoiial oi the ki
*" and the Lord have mercy upon your souliJ
Then the prisooers were cairied bftdl
Newgate,
On Friday, April 3, 1696, sir John Frel
and sir William Parky us were drawn on sledg
from Newgale Io T} burn, where they dehv^^
the Ibllowiug Papet-s to the Usheriffs :
Sift John Frkind's Paper*
Knowing ihat I muftt immediately gifa
account to God of all my actiooii, and thai
ought to be specially careful of wlial 1 sa/
these last hours, I do solemnly profeaa,
what I here deliver is from my very soul^
all the heartinesa and sincerity of a dji
ChrEMtan.
The catiae 1 am brought hiUier to tuflor A
fifr High Tremon.
to he fi»r caua« of OotJ and
tD tiic b*»5t and utritost of
)tAfpt anil inlbrtnatrofi, ti}{;^rei'abie ta
^ *i# l«n<l, whif'li I hive eifcniiore
A tinii ihiljr antl »ille;;iaiice lo
*fw! th?it ii& no t'oiet^u, so n*?!-
► T can alieobu- our uli**-
.. cilitf new &i)d uniotcU
il4f kiri^V liuUjects can de-
# hii« ill! Huy HCi'uunit i»r con-
not ttti iiiiriteiliutt: riyfiil in
lit, 1 think, not to if a lit in ;
lue, toa^^kt luin tn the
is jiisUtiiiljte, unit our
tiujfs fimy BiH'in at jtr«?-
icve, I »tfi *iurt* r lieai'lil V |>i ay,
iUy reiitored to liis rigtuhii
in*.
len descent of his majesty
ddmiuioiiB, in order to the re-
I dcdjire \ hud no certain
nor €;iii I tell >» hut t<i'*>i*n^^>»
iUeve it, so httle reason had ] to
rr^pttriilioii for it. 1 §uppc»!^ it
HliotiliJ h«ri? endeafoiir to clear
Ana»an»iinu, which vi^as not the
agtttnst m«; howeifr, it was
;b what ttKMins I know not,
to my cit^advftntage, I for-
tU^rein UiSLrumuntJil; and!
e very hoiiom iS my smil, freely
'1^ of liod to (lo^NOtoo, nuchas
\wm%% aci^wary toiftards thtt Ukln^
mUwii 1 really look upon to be
more than mine,
%e\\\ and i thank Clod I am so,
i'liiirch of En|<hitu|, thun^h,
■t unworthy and ui)|iro(3uihle
«f that church ivhiidi siiflers so
*tnl for a %%t\vX adli^retioe to by-
lt«« aati C)hri<)iinD }irin^{>le» ^ ^br
and fortius t die.
% [lerfeet chrtiity f^r p#*ople
aod do heitrtdy wish vi-elt,
ur to do flo to all my fellow-
at per«ua«iou Huevifr. And in-
A deal *»f opng^ht*
ne f>eo|de of I'cry
•jMti;^"" ... ,^..„v*-.,^ m.uiers.
ad d#^ire it may not he taken aii
censure, or undue reflection,
to the Utility i»f popish evi
If iacd «o to do lor my Ifetter se-
founiUliou of a fttatuie taw.
mynelf a member of the
laod, 1 ttiunt take \\\i% nppor-
il for (t«id*«« 0ory, to apply
l&atarri- r that church,
taiih J , k^ with ruy-
of yri4j, iiii ijni" «.ike, and the
ila^ lo In? frry cunslaot and se-
itt nl^gimia olScea, and htdy ituties^ of
llki|l«ni Mi^ice, which I liave too
di» aa I own to my ^reat Atrrrow :
tm daniiFnra* prevent or hinder
i iMeiMary and ftrrious matters ;
kci j9^ vtry card'ol and cir-
A.0. lG9e. [1S8
cumspect in all your actknis, behaviour^ an^ ^
coil verbal ion, aa 1 earue^illy extiorieil all that \
came to me.
1 have, i thank God^ a threat deal of satiftfac*
tiow in my present HU(rt'nD»ja, iwnA have tbunil \
itao evert»ince 1 hai^e been onder tht?m : Anti <
blei»«ed be God it doih cuotmn.dly iucreafv
upon me. Aod i do now lay down my life with
all cheeifidnesa and rebi^^otilion, in sure anil |
certain hope of a retiinrfcttoo lo eterinil life,
through our Lord Jestis Christ, through whoa* 1
merits alone i hope for the pardon of my ains^
and the sahation of my souK • i
And so, U Lord 1 inlo thy hands I comtnen^*
my sjiirK ; Cor tliou hast re*keu»ed me, G.^
Lord i thou God of Uw\\\ \
And 1 do heartily aud humbly lieseeeh lh#.
Almighty Gmt, and my most gnieioua Fathef^
to for^^ive and bie&4 this amfol natioti \ dehvep I
it Jroni the jfuittof relwtlioii, blood, and perjury,
thiit i^ now oi» all suk-:^ more than ever, auti
frinn all those other heinous sina which cry
aloud. Prcsene ft ml hfesa this Church. Com-
fort our di8tlc^^sed kinijj" ; restore him to hit I
ri^ht, and his niiHed subjects to their allegi-
ance : hieas aUo his royal consort, our g^racioti^
queen Mary j \m royal lii^hne&s the prince «<f*
Wales, that he may grow in stature, and iq
favour with God mid man; sup|H>rt auj^
streijg-then all those thatijuliei' in any kind for a
(food cause; give them patienee under all I
I heir affiicliim^, and a happy deliverance out o#]
them. Forgive alf mine eneiuti^s.
PuiiJon u^y former jie^lecl and temissneiiM ti
religious worship, and holy dutifs, and all tha '
sinf 1 hitve hern ^oilty oftolhi$i very inomenL
CotisidtT my coiitritioD, accept my icars ; an4
now thou art pleased to lake me hcnee, tiikcme '
into thy favour, and grant ihut my soul may be '
^vilboul s[m% prespuied unto llice, throng^h the '
meriU of thy most dearly beloved Son, Jeaui
Chiist our Lord. Amcn^ John FftEiND.
8ia Wri^UAM Parkyn&'s Paper.
It h'4ih nol l>eett my custom lo use many word% i
and I slull not be \m\f^ upon this occasion^
biiving btisiue^s of much ;;reater conaetiuenc©
to fmploy my thought* upon. 1 thank fiod [
am now in a \\\\\ di»po«:ti >n to charily, and
thri'etbre shall mAi^ no com idnints, either of]
the liard!»hi|ifi of my trial, or any other I
rigours put ujwn me. However, one circnTii^ i
Btaoce t think myself obliged to Liioutioti, ft-
wai !»w«^irfi again'it me by Mr. J^'ortcr, tbol |
hud tH« ntil to him I b%l 1 had iien and read a
cotunui>>.ion from tbo kmg to levy wo« upcm ^
the person of the prince of Orange, Now, I
must tleclare, thai the tenonr ol the king'f ^
commiMion, %vhich I saw* was general, and '
directed to all his loving suh^iects, to raise and
levy war against the prince of Orange, and hit
ailhii'entH; and to seize all forts, caailes, ^c,
which, 1 suppose, may be a customary form
of giving authority to make war ; but I must
cord'ciifi 1 am uot much acqnaintetl with mattert J
oi that nature: but as for any conimiaiioti pai^ ^
fis9]
8 WILLIAM
I ^enlarly leTetlcd against ibe person of Ibc
[ prince ol' Orftiigej 1 u^itlier saw oor hctird of
I may sucb.
It i$ ime, I was )>i-iv3'-to tbe d«9ig^ti upon Ike
I Prince, hiu waA nutlu «ct in it ; and am fully
^sattsIieJ ttiat very few, or none) knew of it t>ut
those who ufiiferuKik tc» do it.
I freely atknowicflpt*, and think il for my
rlioiioor to say » lliul 1 was entirely in ihe ii]i«re.<rt
|i>f the king, h^iti^ altrav^ firmly pcrsnaded of
fthejnstice of bis cause*; nud I'lookei) npon ii
I BR my dnty « both as a «ul ject, and an English*
I suan, to ^humi hhu in tlie recovery of bis Ibrone,
Trial of Amhro$e
wbicb I believe bim to be deprived ofcr>nti
to iill lig^ht and jutitice ; taking tbe lawt
con&tituiiunif i^f my cHJuntry lor my guide.
As liir n lt£;ion, J Ji«e in the commnuinn 01
tbecbnn:b orEngUnd^ m \tbicb I H'aseducalifl
And ns 1 freely foiijpive all tbu world, m wb^
crer I may any ways bare iujured, 1 b
ask tbeai pardon, Wilua.m P«\aEVjK
Jeremy Culberf a Nonjurin^ Minii
piibliul V absolved tbe in at tbe $^alIowa, I
wb it'll tliey were executed acix>rdii»g to I
seuience.
J8G* The Trial of Ambrose RookwooDj for High Treason : At
Sessions of Oyer and Terminer for the County of iMiddk:
sitting in the Court of King's-Bench at W^almiosl
8 William III. a. dv I696-
. HE Court h^tmq sat, at wbit-li were present
the lord t biff ju^irice Holt, tbe lord ekief juslice
Trebv, Mr. justice Nevil, Mr. justice Powell,
Hiul Mr, jnstir:e Eyre ; tbe Court proceeded in
IbiH manntT :
CL ofAr. Cryer, make proclamaiion.
Ctyer. Oyez^ oyez, oyez : All manner of
persons ibtil buve mly ihin*^ more to do, at tliis
Sessions of Oyer and Terminer, bolden for tbe
counlv of Mialdlesex, itruu^ near and give your
MtenJanoe. God save the kiug^*
Tben tbe Grand Jury were called over, and
tbe a |iuea ranees marked, and witnusaes beiag
Bworo rn court, to give evidence to them upon
a bill of indictment ag^ainst Alexander Knijarht-
ley, ibey in a little lime ailer wiibdrew to bear
ibe cvi deuce.
Then ll»e keeper of New^te was ordered to
bring- his jirisoiiers to tbe liar, (which he did) ;
to wit, Robert Loivick, Ambrose Ilookwood,
and Charles Cranburne; who were thus ar-
rajgued:
€f* 0fAr. Robert Lowick, bold up thy hand,
(which be did) ; Ambrose Hook wood, bold np
thy hautl. (which be didj j Charles Cranburne,
hold up thy hand, (Hincb be did.)
You stand indicttnl in the connty of Middle-
sex, by the names of Robert Lowick of tbe
parish of St, Paul Corcnt-^anleo, in tbe<x>nnty
of Middlesex^ gentleman ; Ambroae Rook wood
of Ibe fiume parish, gfeotleman ; and Charles
Cranburne of the same parish and county, yeo-
man ; for that you, to^ethtjr with one Christo-
pher Knighlley, of tbe same parigb and coun-
ty, genlieman, not yet taken ; not having tbe
I ear of God in your hearts, nor weighing tbe
• See Holt, 633, Easi'a Pleas of the Crown,
c. 2, «. 7. 16* 48, 49, 50, S?, and tbe autho-
iTitief there cited. See, also, in this Coftcciion,
the Trials of the Regicides^ reL 3, p* 947,
duty of your allegiance, but beini^f moved
reduced hy the instigation of the devil, as
tmitorit against the utust serene, intist Mil
oua, most clement, and most excellent _
our sovereign lord WiMiamthe 3d, by ihe^
of God, king of England, Scolhnd, Fraix*
Ireland, dttender of the fiutb, &cc. yooj'
pre me, true, Tig-htful, lawful, and uodoiil
lord, the cordial luve, atnl true and due i
die nee, fidelity and atlemance, wtiicti ef
suliject of our said lord me king that now i«
towards him our said bird the king e^hould
and id right ought to bear, witbdrawiii|r,
iiiterly to exlingnish^ iuiendioi^ aud con
aud with all your strength resolving,
ing, and conn pi ring the govern meut #r
kingdom of Eugbnd, under him oui*
vereign lonl the king that now is, of
duly, bajiptly, and well estuhliahed, at
to subvert, ebauge, and alter, %& also oiir
I lord the king to dealb aud tinal d
tmt aud bring, and kis faithful suhy
freemen of this kingdona oi' England,
terable and most mi*»eruble t>ervjtude to Li
tbe French kiii^ to subjugate and iuthral,
lOtb day of February, in the seventh year
the reign of our said Hovereitcn lord ttle ki
that now is, and divers other days and times
well before a^j alter, at the ptirinb of 8t. P|
Coveot*£Tarden, aforei»aid, )u the county i
I saiti, falsely, maliciously, devdi&hly, and
I tonmsry, did com[>a&s, inmgine, and ooulrij
resolve, design, and intend, our baid lord
king thai now ist, to kill, slay, and murder,
a miserable shiiigbter auKiug the faithful %
jecta of our snid lord the kmg, throughout
whole khigdom of England, to make ;ind cii
and the Huine your most impious, wicked,
devilish treasons, nud traitorous compi
eonlrivanrcs, and purposes aforesaid, to fi
perfect, and bring lo effect, you tbe said Rod
Lowick, Ambrose Rook wood, and Chi
CraQburne^ tojj^ther with tbe satd Cbristo^
jects,!
Jbf High Treasort^^
, mmi werj many otber false traitors,
rs unkiMmii, afterwards, to wit, tbe
4mj of Feb. iu tbe year abovesaid, at
afuresaid, in tbe county aforesaid,
oibers days and times, as well be-
sr, tbere and elsewhere in tbe same
bielY, malidousljr, advisedly, secret-
namj^ and witb force and arms, did
poae, treat, consult, consent and
I our said lord tbe king^ that now is,
I wait, and gnile, to assassinate, kill
!r ; and th£ execrable, horrid, and
assassination and killing the sooner
, sod perpetrate, afterwards (to wit)
Isj and year, and divers other days
at the parish aforesaid, in tbe county
traitoronsly did treat, prop<ise, and
tbe ways* manner, and means, and
ad place, where, when, bow, and in
ler, our said lord tbe king, so by Iv-
t, the more easily you might kill ;
Bsent, a$;nree, and assent, that forty
or thereabouts, whereof the said
!r Knigbtley, you tbe said Robert
Ambrose mokwood, and Charles
'y sboukl be four ; and erery one of
foosly took upon himself to be one,
, mittkets, and pistols, chargfed with
r and leaden bullets, and witb swords,
4 otber weapons being armed, should
, and lie in ambnsb, our said lord the
I coach beiniif, when be should go
isvade, and that a certain and com-
fllier of those men, so armed, should
begnanlsof our said lord the king*
fing him, and being with him, and
bt witb them, and overcome them,
crs of the same men so armed, our
ie king should assassinate, slay, kill,
rr ; and you the said Robert J^wick,
Etrtokwoud, and Charles Cranhume,
mb the said Christopher Knigbtley,
s, and all tbe traitorous intentions,
uul eontrivances afuresaid, to execute,
falfil, and bring to effect, afterwards
be aforesaid lOtli ilay of February, in
lb year abovesaid, at the parish afore-
le county aforesaid, divers horses, and
ij arms, gtms, pistols, swords, rapiers,
r weapons, ammunition and warlike
id military instruments, falsely, ma-
secretly, and traitorously did obtain,
ler together, and procure, and cause
gbl, Jitained, gathered together, and
vidi that intention, then in and about
tiMe, horrid, and execrable assassina-
ig, and morder of our said lord the
BOW b, as sibresaid to be used, em-
ai bestowed ; and the same premisses
sifeiy and certainly to execute, dq^
m, tbe aforesaid Christopher Knight-
•se Edward King, late of high trea-
SBlriviBg and conspiring the death of
sid tbeliinir that now is, duly con-
I aUaintcd, by tbe consent and agrec-
ivcfsoT the traitors and conspirators
. As nkl 10th dftjr of February, in the
f
A. D< icde.
[Uf
seventir year abovesaid, went and came to tb«
place proposed, where such intended assaesina*
tion, killing, and murder of our said lord tbs
king by lying in wait, should be done, per-
formed, and committed, to see, view, and ob-
serve the convenience and fitness of the same
place ibr such lying in wait, assassination, and
Killing, there to be done, performed, and com-
mitted: and that place being so viewed and
observed, afterwaras, (to wit) tbe same day
and year, their observations thereof to several
of the said traitors and conspirators did relate
and impart, (to wit) at the parish aforesaid, in
the county aforesaid: and you the aforesaid
Charles Cranburne, the same day and year,
thei«, in order the said execrable, horrid, and
detestable assassination, and killing of our said
lord tbe king, by tbe traitors and conspirators
aforesaid, the more readily and boldly to exe-
cute, perform, and commit, advisedly, know*'
ingly, and traitorously did bring and carry be-
tween divers of those traitors and conspirators,
forward and backward, from some to others of
them, a list of the names ofdivers men of those
who were designed and appointed our said lord
the king so as aforesaid by lying in wait to kill
and murder ; against the duty of the allegiancs
of tlie said Christoplier Knigbtley, you the
said Robert Lowick, Ambrose Rookwood, and
Charles Cranburne, and against the peace of
our said lord the king that now is, his crows
and dignity, and against tbe form of tbe statute
in such case made aud provided.'
How sayest thou, Robert Lowick ? Art thoa
guilty of the high-treason whereof thou stand-
est indicted, or not guilty ?
Lowick. Not guilty.
CI. of Ar, Culprit, How wilt thou be tried?
Lorrick, By God and my couutrv.
CI, of Ar, God send thee good deliverance.
How sayest thou, Ambrose liook wood? Art
thou guilty of the high-treason whereof thon
standest indicted, or not guilty ?
llool:Tcood, Not guilty.
CI. of Ar. Culprit, How wilt thou be tried ?
Rookicood, By God and my country.
CI. of Ar, God s«?nd thee good deliverance.
Charles Craohiirne, How sayest thou? Art
thou guilty of tbe high-treason whereof thou
standest indicted, or not guilty ?
Cranburne, Not guilty.
CI. ofAr. Culprit, ilow wift thon be tried ?
Cranburne. By God and my country.
CL ofAr. God send thee gobd deliverance.
Cranbt&ne. My lord, I desire your lordsbi|»
would ^rant me the favour for my wife to come
to me m private, aud that 1 may have pen, ink,
aud paper.
L. C. J. (sir John Ho!t). Pen, ink and paper,
yon must have ; but as to the other, we mnal
consider of it. KcepiT of Newgate, What has
been usual in those cases? ?■
Keeper, My lord, we let nobody coicSf 1lo
them in private hut their counsel.
L, C, J, That's pro%ided for by tbe act that
allows tbem coansel ; but bas it been usii»l
tIS] 8 WILLIAM IIL
lieretofore to permit any body c)«e to be with
them in private; tlie wife, or any other rela*
tioDS f'T^tCeeper. It has not.
L. C,J. It is very dangerooa if it should ;
therefore let him have his wife oome to him in
the presence of the kee|ier.
Cranbume. ,And pen, ink, and paper, I hope,
my lord ?
L. C. J. Yes, ves, that you shall have.
Cranbume, Vuu dun't deny me, my lord,
that 1 roav have my wife come to me?
L. C. / No, we do not, but she ronst not
be in private with you, for fear of an escape.
Rookw.'od. I beg the same favour, my lord,
to have my brother come to me, and pen, ink,
and paper.
X. C. J. You shall have the same rale \ but
you, kee|ier, must have especial care whom
you do [^miit to come to them,- and be private
with them ; for it is still at your i>eril if any ill
accident hap)>en8 by.your indulgence to them :
and yet it iH fit they should have all that is rea-
snnahle for preparing for their defence at their
trials.
Lowick. And I desire, my lord, I may have
my sister come to me, and the liberty of her
being in private with me.
X. C /. Your friends may come to you at
seasouahle times, in the presence of the keeper ;
you shall have any thing that is reasonaMe,
out the safety of the government must be looked
mftcr. Therefore, keeper ofNewgate, take hack
your prisoners, and nring them here this day
i€*nniglit at seven o'clock in the morning,
without any other order.
[They staid at the bar about half an hoar,
the Judges consulting among themselves about
the precept for the netty jury upon a late act
of parliament, whicli has appointed six days
for the jury to be summonea before they ap-
pear to try any cause, and upon ti>e last Act in
Relating Trials in Cases of High Treason ;
which requires tbnt .the prisoner shall have a
copy of the pannel of the jur^y didy returned,
at least two days before his trial.]
Then the Prisoners were carried away, and
the Grand Jury withdrew to consider of the
evidence against Knightley, and in a quarter
«f an hour came back, and being called over,
delivered in a bill to the court.
CI. qfAr, Gentlemen, you are content the
court shall amend matter* of form, or false
Latin in this indictment, without altering any
matter of substance without your privity.
Jury. Yes.
CI. ofAr. Then, gentlemen, you may go
for this time; and you are to take notice if
there be occasion at any time to call you to-
gether, you shall have suthcient warning given
to you beforehand. This is Billa Vera against
Alexander Knightiey for high treason.
f ihen the Jwlgea resumed the debate among
themselves, and at last resolved tliat there
tAouM go three several Venires for the petty
jwjy rttnmiMe thin day at^imights one to t^
7)iial^ Ambrose Rdoknood,
between the kmg and Robert Lowick» I
cond to try between the king and Ai
Rookwood, and a third between the ki
Charies Cranbume; because, though
diotment be against them jointly, yet it
several offence in every one of them, sc
might sever in their challenges, auti thai
be troublesome, and therefore it waa t!
best to sever them in their triab ; and
fure the court adjourned for an hour or
thing more, while the precepts for th
were preparincf, and according to the ai
ment met, and signed and sealed the pr
and then adjourned the Sessions of Cly
Terminer until this day se'nnight, at m
the morning.]
Die Martis Vicesimo primo Aprilis,
Regni Regis Williehni Tertii <
Annoq; Dom. 1696.
The court sat about eight o'clock, al
were present a great number of noblemi
persons of quality, who were in the €(
si<Hi, and seven of tlie judges ; to wit, tl
chief justice Holt, the loiS chief juatice
tlie lord chief baron Ward, Mr. justice
Mr. justice Powd, Mr. juatice Eyre, ai
baron Powis.
CL ofAr. Cryer, make prodamatioii
Cryer. O yes, Oyea, O yea. All i
of |»ersons that have any thing more t«i
this Sessions of Oyer and Terminer, adj
over to this day, draw near and give yi
tendance. And God save tlie king.
CL ofAr. Cryer, make proclamatioi
Cryer, O yes. Sheriffs for the coi
Middlesex, return the precepts to you di
upon pain and peril will fall thereon.
The Uoder-Sberiff returned the Prcc
CI. ofAr, Mr. Baker, pray, whom
intend to begin with P
Mr. Baker, With AmbroHC Rook woo
Cl.qfAr, Cryer, make proclamation
Cryer, O yes. You goo<l men of the
of Middlesex, summoned to appear he
day, to try between our sovereign lo
king, and the prisoners that are, and a
at the bar, answer to your names, as yo
be called, every one a't the first call, an
your issues.
The whole pannel was called over, a
appearances of those that answered rec
and the defaulters were again called ovc
CI, ofAr. Keeper of Newgate, set Al
Rookwood to the bar, (which was done)
the prisoner at the bar, Ambrose Rool
those men that you shall hear called, ai
sonallv appear, are to pass between oui
reign lord tne king and you, upon trial (
life and death ; if therefore you vrill chi
them, or any oftliem, your time is to
unto them aa tliey come to the book
sworoi Jbefore thej be awom.
foir High Treason^
rthatmmfm Sktmtr, If your lordmlnji
m hmte 4 dtin^ or two to propose li>
^;ip* in reapect of Oie trial tliis day :
lotfrrifi M^ U^ your fi?our for n
af« Maifiied of cotjiis^], In pur-
lyf paninment, uml we Itope
:h we tiimU nay in defence of
be itnputed to ogrsi'lveit. I
14 liave Wn a rrAection tipan
cuiU ^our t«»rc]ihip8' ju^tice^ H
yte klintifd havt> rrfused to »p-
r,,. . Km^ji a public(\lioti in the
i yowr candor taw Bril$
I '! upaa othtT occiuiions^
mn b(* no reaiion fur such
1 \%'4\e n(ni¥ ; for we must
rim liiive bceji pmctixer^, mi
_ hm there wus never a reijjfo
vrijhin the memory of man,
irsrirtf-^renrp, soch i*»«iuew(i of
rrOiil ihf court to
Ud\\i hvvn ill tiiis.
tji and liberty of
(1 to (he bur, and
Ixtuji mr lilt! Kjtme.
W« oome not bett* to coiinieoance
PM for which the prisioaer standi ne-
dw|mcicsples upon which such prac-
le prcMimti) to be fouotled ; (or wc
IMft cillier reiitpatifi or civil, ttiat can
'9XCmB^*m. But the aul of par-
mo^ warmnted the of
ir prfWMiK Hccii^ed to j i ^ce
litbooc y<'Ur l<»rd&bip ^lU (iittt us
•Iw w Uat ohjectioni u c con on their
Look 3fe» sir B. Shower, go
'^ilijeetloiif ; Id us heur whut you
My k»rd^ It appcari to be a
this act of padiatnentf ^he-
I be tried tiiis day : »nd if it
Itopep ihnug'h itslR«uld nut Itarc
ih the court, that ue upprehend
ill yoiir lordship will excuse nj^ and
(tonlmff to your judgment, 1 ue act
Tlifti nil that ahailt beaceuiied and iti-
r higb'imi«on, whereby uny cgrrup-
Mdtiiay, or»haiI be raaJe io noy such
fff oflrnden, or to any the heir or lieirs
Id) o&mler or offeodcf 14, or for mis-
tvcftkonf ah all htive a irue copv
^ leat ; and afterward* all all
uf the jurors who are
^ feturned hy tlie sheriff and
Ima tM0i I And efery one of them so
iliiitiB'ii
ii^rbatb
I lliai tiuB tnii
^tUttftmutiiif
i.ili he tried for the
'Mil please to cast
, nud it will
\ . and that is
Uw. And it
jpprehend it»
fit on at this
iiiuldbe&oas
I worJa, but, aa we take it,
A, D. 1$D& [lift]
the mtetit and menntng of the act of puritan
too are for us, that there ought to have been i
copy of the panne) after the return two days I
fore the f riaL For in the Hrst place, my h>fd, th«
words are plain : it must be a copy ot the pnn-j
neJ duly returned by the sheriff. Now, though j
it be o'copy of the' array of the psmnel which
we have delivered to us» yet it is not a copy of
tlje pannel of the juroi-s return etl ; for it vi n<i
retiu'n till it come into court. And the kin^^^AJ
counsel must admit, that iu ihe case of all writt
rcturuahle^ it cannot be said that there h a re«^
turn, where there is a wririnjy upon Ihe-bacU^
or a label annexed, till it be actually returnrdJ
into court. As in the case of a Fieri raciaStf
or a Maudauiua, an action for false return can^
not lie till the urii he actually returned, For|
such uction must be brought into the county (.
MiddleseXt where the court resides, befbr
i^hom the return Is made, and not in thfl
county where the shciiff li%fd that ms^le tha
return ; for it h not a return till filed in coun
Now here the words of the net are ; * Ueshalll
* hare a ct>py of the pinuiel of t!ie jurori? whfl
' are to try hiui, duly relunicd hy the shenf
*■ two days before the trial.* Now/we humhJyJ
itwist that the wonls * duly returned* ma-it I
antecetSent to the having the copy, or else hi
caun<Ubesnid to Viave a copy of the pannel
duly returned- The act of parliament does no|
$ay which shall he duly retuiued; and thcre«
fore there do^^s arise a doubt, whether yoiti
lordship will not direct us to have a copy afle
the return made, which is hut this dav*
Mr, Fhipps. If your lordship pVaaea
spare mo a word of the same ^idc : We lake if^
that by this act of parliament the Jury must I
duly returned before the psiruiel is delivered tq
nn. Now the returu is the answer that is in<;
doi'setl upon the writ with the pantiel annexe
and delivered into court; for the return ia
the court, and till it be dehverei! into coun
it cannot properly be said to be a relur .,
We acknowlt'dge ihe copy of this pannel h:^^
been delivered unto us, two or three oayi
ago. But the Venire beinsf not returned filj
to-day, we think we have not a copy of the
pannel within the intent oft and according
to the act of parliament. And I desire to pu
your lordship this caste : this act of parlia^
ment df^es likewiae provide, that the priijcmei
should have a ^^y of hi^ indictment fivq_
days before his trial, to enable him to consul!
with \m crnipsel how to plead and defend hiD
self ; suppose then a copy cif a bill that k in^
tended to be presented to the errand jury, be ile
livered to the person accused tive ihys beforj^
the tfrand jury are to meet, and they after*
w ards meet, and find it, and the party is troughs
immediately^ and arraigned upon it: this js f[
true copy of the indictment, yet certainly Uii
intent of the ot-*t of paHiament is not answered-
for it waa not a true copy of the indictment a|
the titne it was delivered^ And I take \\u%
caae to be under the same reason. This is 1^0^
a (>annel duly returned, till now ; and theretbri
by eoujecjucnce we have pot tW adfantv^^v
8 WILLIAM in.
I
I
I
I
I
147]
that this »cl ofpnHiAmeiit iDtcnded to give us;
for Mhich reason we humbl)^ apnrehc«iJ we
<«ight not to be tried to-day ; which we suUmit
to v«»iir [orthhip.
L. C, X What say you to it, Mr. Attorney ?
Alt. Gcri. (sir Thomas Trevor). My lord,
with suhmissioii, this objection will receire a
very pbin ftnswer. If! understand it arii^bl^
they say thul they ougrht lo have a copy of the
paniivl ik(\rr it is relurned^ nnd tliat it cannot be
mu\ to be duly delivered, accordiusf to the pro-
vision in Ih'm act of parliniTicnt, till atier the
Vetiiro Fat ra* be duly returned win th*' court,
and ttu 11 they are to have it two days before
liiey are tried. They say t!ie Venire Paoins
1$ returned but to-day, and so the copy deli-
rered to ihem, is not pui^uaut to the'iict of
parhament ; ami so they cannot be tried to day :
this I take to (je the oytjpction. But with smi-
n»ission, my h>rd, it will be plain both by the
Wi>nls of the act, and the reason and intention
of it, that there is no occasion at all, nor no
necessity of baring- the writ returned before
the copy of ibe pannel bt* delivered. The wonfs
of the act of parliament iu p these : ^ Tha! every
* person and persons w ho shall be accused, in-
•^ dictetl, and tried for treason, or misprision of
* treason, aiier the *2Mh of March, lti9G, shall
* have copies of the panoel of the jurors who
* are to try them, duly returned by the sheriff.
* and delivered to thetn two days before they
* be tried/ Now, first, tny lord, J think it is
apparent what the menniDtj and desig^i of tlie
act of parliaoieat was, thai the prisoner should
know two days before the trial, who were the
jury that were to pass upon him, that he might
have an opportunity lo consider how he sho»ihl
make his challenges as he thoug;ht fit, and
time to enquire into the qualifications of then],
that if there were any particular ground of
challenge, he ruiglit nut lose tliat benefit ; so
that if he has a copy of the pannel arrayed by
the sberiff, which is afterward returned by the
iherifTinto court, and there is no variation of
that pannel a Her wards ; then cerloinly the end
and intent of the act is entirely pursued : for
by that means the prisoner liws^ the names of
all the jury returned, and ivreaAerwards called,
and has a full opportunity of making such
challenges as he thinks fit. And as tho reason
and intent of the act is answered by this con-
struction, so the very words of the act are an-
swered : for it is not said in the act, that he
Bhall have a copy of the pannel afler it is return-
ed, but itissaiJ a copy of the pannel duly rr-
furuftd by the sheriff; ilrat iij, when the sheriff
ba&^miyed a pannel, then he is to have a copy
of that pannel; and if afterwards the sheriff re-
turn the same pannel into court, is not this a
copy of the pannel duly return etl ? With sub-
mission it is, and sufficient to answer both the
words and intention of the act of jiarliament.
It is true, tny lord, if the act of parliament had
taid he should have a copy of tne pannel after
It was reiiirneJ, then we could not have said
but that the objection would hold. But when
tke words are g^eDeral, and it h most reasonable
Trial qf Ambrnsc Rookwoodf
to be interpreted that the copy is to he delivff(
when the arrny is made, because that answi
the intent anil end of the act of parUnme
which was to enable the prisoner ta mnVf 1
chttllengfes, we take that to be sufficient;
if anotiier interpretation should he midfj
would render the trial in such ctv-
all the mischiefs in the world, ami -
firacticable that any person should be tried ^
east it would introduce a new method of i
ceedingfs that nerer was practised, nor <tugn
be introduced, unless ibis act of parliaineiKj
express words had appointed and cou
such a new method ; and we siip|i
lordship will nevpT make any auch co
tion, that the art int tended a new method,
less expressly declared ; for if it were,
would hate it, that the copy of the pan
not to be delivered till after the returitl
writ, then the prisoner cannot be tried
the return of the writ ; for upon the retu
ihe writ, the jury must be hroug-hl to the I
the prisoner must be brought to the btr,
adjourned over to a further lime, that i&(
mean time a copy may be delivered to
t believe that they can never shew anyi
dent thtit there was such an adjounim
jury of life and death, over to another
a person to have a copy of the panne), I
him to make his challenges ; and eith
must be the conscqurncc, or else the jury i
not ©ome upon the return of the Veuire f^
but there most go a Habeas Corpora, ^
prisoner tried ujion that Haheas Gor
first there Rjust be the return of the writ,
the copy of the pannel delivered, then IhgJ
beas Corpora returnable another day ; i
that the trial must be had : but I belii
can be no in*»tance given of a trial for i
upon a Habeas Corpora. Now if the pa
meut htid intended that they would not I
the- copy of the paDoel delivered till after 1
return of the Venire Facias, tliev would c
tainly hnre es:pre-ssed aud provided how
methofl of iria! shouhl have been ; that I
that either the jury sliouM have been :i<]jiiun
over till anotiier day, or else brought to l"
upon a Habeas Corpora ; which is
way that can be thought of. Indeed^
I do aeree, that if the sheriff should pfi
copy of the pannel ^ and afterwards f^houl "
that pannel, though but in one na
uoultl not answer the end of the act of^
ment, because the prisoner is deprived (
opportunity of knowing- tin; name of the
son that he so altered, in order to his mat
his challeng'es against him : but if thc^ sh^
di> return the same persons that are in (
copy delivered to the prisoner, then we do
all intents nnd purposes, answer the end 4 '
act of parliament, and avoid the absurd
struction that ihey would tnake of this aCtl
the chang'in^ the methoil of trials, and do'
can well If llwhat method should be piinn
but certairdy if tht? act of parliament intcn
a new method should bepursded, they
have described and settled what it shntiltl I
f^ High Tre^m*
(dlr Jdbn Howies). If your lorrU
tft «pjirr mp n wonl <^t' the i«anie
: i hfts been
(trd J for,
i uLc it, the ui I liiis U>eii '
errd b»th as to lb© t* orils, aoil 1
r's having'
iiy be re-
^ u iiung^as a nfttmel
ii<-. sumfnoncJ, and
'f'fore bis
* -. ujai Igni-
ted fiufH-
: ^ts. Cer-
iieact of parliament
■ lit It a copy of ibe
iirt of ibe wril,
d that Wfts or-
«|«i, •«€ ojiv 4>4h^i iidiiita put in bill those
tenkftliaal m copy of before: now, my tord, 1
Aidtlibact nf p^trtiaimehl mutt be takfii ac-
mgtmkt iH* IntanI %iu\ meaning of It^ <j|- else
sǤWr ti jTisoner^ and hurdar
Mt ifctt ir it sbouhl ; this tiot
V^ltfsb&ii ii.-v^c ;i i:<)\y\ of bis indictment so
mtm flairs bdbra lii;» trial ; Dow I would fain
^arm wWiilur iWy won hi have it cooiitrued,
ill te Cifrj fItMv mit need to be ddivereil til)
#v kiBCj^Ofiil, wtiich oiu&t be if tlicir doe^
ibMt the act i« to li« con-
nUnLT t*» ibf* Strict letter of it, for
in4d V I of the issue; what if
H^ ad<ctji live red Ave days before
jj tti %ial, ihcit>g:b nfier imwt joioetl, it is well
L v*^ acctirdjoc t<* such an e^cpositian* for
K^VEvqninf; nf ilie prittotier i^ no part of the
H ilk«i4 tH it %vii« iW intent of the pur-
be ««iis nrrui^ned,
' uijvJu have
> lo make
I ai i>^ii - ; be nii^ht
wliicb ft*U'r plen
cot till not liaTe the
jitiarMranls move to
|iQ> til
^iMiiirf M ;.
s^'iaii^ol', mtir could h<
iW) (lie tiifliciifiefti, ivliich (If' mi^fbt other-
,4mi rraKiu for, »l hp hiul the copy
•« fntt to {dead, no Uitit I lake it the
»W ioAerpretetl tivpry H litrt' »cc^»^liol;'
on^ftl, .itu) ibo piittotiei' at the
jt> lion of ihc act, hai
ra/L, i.^ui five or aix dayii
lirian^nmrul, aud therelore we liuve
[ tvi ikii* pfcti'iHine atid lueanin^ ot
^4dJlcopy
t at ' try Jhiu«
l4llly iMfintrii LJV iHL -„j4 iMi, Mliich lfi(
' KvMifiif lo lii« act of |»;ii it.inienl.
•^■lli^y ««3v tbiit eicu a iO(>y of ll»t
v4H»»rc it ^ found would nut be t^ood
ru I lii\ .„< 1 I 0..1 1 is Uuf, hwt tii>^ rH'si-'
at n^ 'd paiiucl |
•jfd < lie jury be !
1« lur l^a aWr^ it&u«i array aud iH»iu*
1696.
plete his pannel to let bis bailiff know M^ho must
he summoned ; but in the case of an iu^iclioent,
though a bill be drst formed by the clerk, yel
it is not looked upon as a formal indictment ia
point of taw, till it be found by the jury aH tbeir
vcrrdict, and preferred to the court; and it is
not necessary tiiat this indiclme4it should be
formed for the jury before they find it, for I hey
are p>roperly to make their own presentmeuts
thi m^elves \ and the ancient practice was, that
they only presented the fact, and the matter
was put into form afterwards by the court, and
in many cases it \^ so at this day, aa we have
had some instances lately ; but as to the ar-
rayinc^ of a pannel it always was ao, and always
must be so arrayed by the liherifr before the jury
summoned, and there is the dijTerence beiweeti
the lairing a copy of an indictment and the
copy of a pannel, the one is taken notice of in
point of law to be necessary, the other is not.
This giving" a cop^ of the pannel, my lord, we
say, ia within the intent of the act, which waa
only to enable persons accused to make their
just challenges, and that they may as well da
w ben a copy is delivered after it is arrayed by
the sheriff, as when it is returned by the slicritt,
and being* so done, with submission, it is well
done within the words, and within the intent of
this act of parliameut.
Mr, Contf€r$. M v lord, the words of this act
of parliament are, That they shall have a copji
of the (lannel of the Jurors who are to try them,
duly returned by the sheriff, and delivered to
them^ and this, two days before the trial t my
Joi'd, that this is the pannel of the sheriff of the
jurors that are t4.» try them, as soon as it is ar-
rayed, has beeu observed already ; nov^' it would
be a forced construction to construe these words
that follow, ' duly returned by the sheriff,* to
be meant, that a co^y should be delivered alter
the jury is returned, because that would be a
delay of justice, and keeping off the trial longer
than Mas intended by tltis act of parliament,
and more than will answer the end of thicj law ;
for the end of it was to give the prisoner all
benefit aud advuola^c of exceptions against any
ol'tho.^e that were tutry him, and if ha lias ibia
pannel ttvo days before his tiial, he has that
hrnetit the law intended him. Now, uiy loni,
a!> to what has been said of an indictment, whitib
by this law, be ia to have a cony of loo, thai
is plainly quite another case ; lor it is not an
indicttncut till it {ie found, and fio answers not
the words nor iuiention of the act till found by
the ;>rand jury ; tdl theti it is not a copy of lus
€har;;c%, and therefore by no construction can it
hf culled a copy of the indictment* 1 think I
need mil trouble your lonl'^hip any further in
this iimitkfr, because thit^ objection was li>rea}ceii,
and liu& beeu already cmisidcred of by the court
upon ihe prisoner's Jirraie'omeot.
H\r Barih, Shoacr. My lord* in answer to
what Mr. i^olicitor ha^ ttatd, that there is as
much reason to expect tlkat the copy of the in*
dictmeut should not be detiveretl lifl after pl«*a
pleaded, as that the tr^nuel should not be deh-
ver^fd till atler the jury relumed, because iu ibt
I
I
I
I
8 WILLIAM III.
4%&c of the indictnieat it is said so mfttljr days
Irt4hr« iKe triat^ and the trial caonot be till issue
jometl^ tUne can be no weigfhi id that objec-
tion al ftli ; for the wtrrds of the act are quite
differeAtty penned in the rnse of' the indictment
from what they are in the c*ase of the pannel ;
for thouj;b it \*€ said it should be dotie five davs
before tbe trials }et it !<> added^ Mn order to the
* adviain^ with counsel how to ptead ;* which
in oat be before pli^a pleaded^ and therefore it
m\nH be absi*U*!ely necessary lo be done before
the arrm^moetit, My tord, I have propoȣ*d
roy dimbt, it may have consequence* on the
one side and the other, we submit intirely onto
yoar ktrdsHip'i jtidjjfment ; it is a new law, and
never has receivenf any opinion ; I he uords of
it are, • duly retumeii by the sheriff',* atjd the
Stie:»^ion t», Whetlier a eopy of (he pan net upon
>e array btl^trr it be returned he a copy of tiie
nantt*-] ifaly retnrred, 1 hough the s^mo pannel
»e afterwards duly retitroed.
Mr Phiy^'S, My iord, Mr. Attorney General
ftWMB, ilittt the piior< I after it is array e<i may
be ameitdHd aod n!tered by the sherin ; and it
waa nevt t it lentfed by this act of puHiament.
that any copy of the pannel should be delivered
lo the prisoner but of thoije men that were
really reiurticd ; so that we take it, we ouio^ht
to have it.tvto days after the return and before
the trial ; fui- certainty it must be a copy of tbe
men returned, which if the shenfl^ may alter
at any time before the return, the intent'of the
Act of parhument cnn never be an&w^ered by
any copy hnl what is a true copy of the return.
Idr. Coo vers would aimner iho olijecii-m that
I made aoout a copy of the indiihuent by tlii^,
that it is not an imiictmeut till it be fonnil by
Ibe jury ; but I think it is no answer lo our oh*
jectioA at :0I, though it be but a copy of (he bill
intended to be presented to the ^rand jury, yet
if the erand jury afterwohJii And it, it i.s ns true
n co^iy id ihe indicmient as thisiii a copy of the
jury iiLcnded (o be returned, and fifter'< ards
relnnied. As to what they say, thai this will
inirodiice a new metliod ol trial, contniry to all
form o: pwce^tlings, that can be no objection
neitlier ; « or if it lie so, we cannot tell tiotv to
help itf the parliament have thought tit In have
jt so, arul wc must submtt to take it ai» I be law
itas made it : if there be a necessity for a Ha-
beas Corpora upon ttic provision made in this
act, 90 it must be, for we must take the law as
iilti, We subtiiit our objection to yodr lord-
ahip ; we think we have not had the beuetit of
llua law*
Mr. Cowptr, Surely, my lordp whiit !VIr.
Phipps has now said has no weight in H; th:;t
because the shenfTbad it in l:is power U* alter
the p»uDel before it was relumed, therefoic this
is 1 1 01 now a true copy '^f the puniiel ot jurors
who ure lo try tlic pr isomer, *liily returned by
the sheriff; which arc llie WLHiJs in the act. ft
is true, if (lie shentf had in fact altered iJie
pannel from what it ivun, aoil returned it so iiU
tered into court, no doubt of it,, the prifioner
would be very well iniillcd to muke this oh*
jeotioQi that be Lad not a copy of the pauud,
Trial of Ambrose Rookxx>ood,
or the names of the jurors that were
to try him ; but now we can aver, that we
pursued this act of parliametit hterally; for
answer to their objection, we may ask
queslioQ of ihem upon the words of the
Have you not had a true copy of tlie namea
those tuat are to try you, and are duly
by the sheriff for that purpoftel and was
that copy delivered nuto you above t
ago r They^ cannot say they have not fa
and if they cannot say so, then both the
and meautiig' ivf the act of parliament are
every res|>ect anawered. ; if when thejury^
to be called the prisoner iimh the pani
altered t be has reason lo object, and w
the benetit of the objection, that he has
ar} vantage which the I aw intended him,
that prove to be the fact, we think Ker« '
compliance with this law.
8oL Gen. 8ir Uarth. Shower mista
objections about the copy of the iudi*
for u e say, if the intent of tjie act of pi
be complied with, it is suiHcient, t
where the words are any way douhtfirf^
cording to the wordsof thisactof pailMmctii
copy of the indictment need to >»e deliveied "
6ve'days before the trial ; but it appearinsr
the intention of these law«m:ikers was,
should have a copy of the indictment to
him to plead to it if he hail cause, tl
though the words be * before the trial/ we
taken it that he should have a copy 6ve
before his arraignment, and so we have
ptteil with Ihe meaning of ihe hiw in that poii
as we have also in this, which was, we take
only to enable the prisoner to nuike his
leoe^es, and if that (m done two days betbre
trial, with tuhiuission, it fully answers thtslw
L. C, X Have you dooe^ gentlenaen?
Couns. Yes, my lord.
L. C J. Then look you, sir B» Hbo'
lo this point that you now insist upon
had it under consideration heretofore ; wi
here ihiji day se'nniglil, and then we did
sider tn what method wt^ should proc*eed,
that ttic prisoner mi«jlit hare the benefit
teodi'd hirtt by this net of parliament : the
of parhament does <lesign, in the first pi
that every prisoner thai is to be tried for h
treason should have a copy Qi' his indicti
at leuHt five davs before the trial ; that, I tbinl
was ail the makers of this act of parliament iip
tetide<l at the 6rst; but then there being ml
sequent words, which shew the reason wif
Ibey gave him the copy so lon^ before tfa
trial ; which is^ that he mi^ht advise with W
counsel ivhat lo plead ; ihejie worik, we
oei*e, have given the prisoner a fuiiher tin
than what was ongiually intended, thereto
we have tbnn|^ht it necessary that the priiioo
should have a copy of his indicUneni five da
Ijefore he be arraij^ned, which is five days b
fore he was put I o plead ; und yoiir client, I
prisoner at the liar, has had the benefit of
act in that re^spect before we arraigned bit
then Mler he has pleaded, the nuestioii wi
when bo was to have a copy ok cbe picmel
tSSj for High Treason*
fmm ik imp of Ihif *ct of {mrtiaEaeut wbs,
llrilbipiiQiNT tboutd have & oo)>y of the
mmt^tmh\%M'ore histii.il, in oi^er that
it niflt eOMi^kr of ibe persons t!ial were to
vtIuoi; Ihtthf mi^ht (> seSror their
riiw^ Impm, unA > in; that so
B^nrt^i , btuHiit ihe law ^ves
ka^c^i ' srui thirty, without
fMrc4Uif, if !»«• itifl not like the men,
t n laiuj mone at he &houM think he hatl
'tis case, the
rient ii an-
„ . » iiie paiinel, oa
^^iVftn^^ Lww days before
9mtlHu .... ha<4 th« full be-
t M llw Id ol ^ intended ; he t9
lOOf^ •« Wfr I . Liakti hii eiiil-
i tWUu shouht be, and
*lfce flime ii ^d tiim, that the
liBinenl mratit he should hitve ; then
[ liie de«i|fn oi tliiji Act of jmrliajueut
wtttd tt'ui cufiijdied with in the
I i|nef«iori ^i l> helher the worda
i ttre satisfied ? For we wuidd be very
:99e ^' \\iii nttiirct %vhere an act of
iaieiHlta /^vour to a prisoner that
I tj|# |]*rfiif hill life, to abridge htm of
t (if it(ir ^ hich tj»e very words of
I ftlbw him, though the intent of
rli^oM^t were jiiiswei'ed uiherwise;
t place It is observable, that the
ftiiu^iii .lu*'k iMit uAy^ tliat the ori-
II lelurn ; nor docs
I ^in the court, but
I m copy of tiie panoel of tli« jurors
1 ihnt are t<> \ry him ; now if the
> days before the
.[idthie9<n^^ tiitn
> ^laun^i, whi^h paanti is
IT} rnurl, ha« tiot he then
M ■ ' I>ot!« not
? For you
ufj^i u IS ntii Mu<; ifi the words
ltb«eii|>y flmll be delivered atter
'^*-' • •- ■' " - •' • " ' :\ copy
r cany
i— ^^ > .i i"' ......inHfii' he
•ml wi' think thijq Answers both
1^ r it i'v 31 tonv of the pannel,
1 1.| iv returned.
i^ii^ t wouhl in-
r ik«e ttoiml luiu^e af Crialt,
^ to Uie very process itself
le ..'f law to award process
\ • Ji^ 1A Appear at a cf rt^iiu time,
B joiiaed between th*' ktM^^ Hnd the
I y«l wbiiu we have done this, and
are suoirnoned and do ap-
i» ttiey e)unt! ; for the isaue
iMitfe atW tho rettirn, the
fcttf« • copy of the pnnnci two
s act of J, and the very
I ftfL J led iQ giviog a
nvl ^ ofm ibe return.
i«tt<i 'itf ooticider&tion
«fOB dkbttte aitiuug cmts«:tr«i| we
A. D. 16M«
[13*
did thiuk fit to award the precept returiiabf#
this day, and rrsolved to try the prisooer this
day* unless better reasons were offered us to
uUer our opinion, and we are not sAtiMfied thai
any such better reason has been gpiven, but that
this trial ought to gt> on, the prisoner having-
the fidl benefit that wa>» de^tigued hrm by this
act of parliament. And the giving a copy of
the panoel that is returned, liiuugn before the
return^ sufHriently satisfies the words of the
act ! no other construction can be made with«
out great absurdities : thiit is my opinion.
8tr B. Shower. My lord, I hope we shall Ke
excused for our clieni, we have another doubt
to propo<ie to the court,
L. C. J- You have bad ray opinion upon
this point, if my lords and brothers are of uno<*
ther opinion, they wdl tell you.
Jadgct, No, my lord, we are all of the same
DplDiOn.
L, C. /. My Lord Chief Justice of the Com-
mon Pleas, and my brothers are all of the same
opinion.
Sir B. Shower. My lord, we say we hare
aoothpr doubt to pro(>ose U{>on this act of per*
liament: it ist a new one, and never put in
pr^iOLice till no v, and therefore we hope your
iontship will please to excuse us, if we offer
nor objections, because there has yet never
been a delerniination about it, and we are es<
signed of counsel by your lordship.
L. C. J. Never make apologies, sir Bartbo*
lomew, for it is as lawful for you to be of coun*
scl in this cuse, as ii is in any nther case where
the law allows counseh It is expected you
should do 3 our best for thuee vou are assigned
for, as it is expectei) in any other case thatyrm
do vour duty for your client.
ftr B. Shower, My lord, our exception is
this, ne say that this trial cannot go on at this
time, upon this act of parliament, because we
have no true copy of tho whole indictmenl ; it
does not appear, in the copy we have delivered
to us, bet ore whom it was taken, or wbether
it was taken at all, or in whnt pkce it wat
taken ; it &i)ys only ^ Middlesex' inthL» margin,
and iheu * JuratoreA pro Domino Re^e pre*
* sentAnt:' that might be befori^T the justices
of the peace at the quarter sessions, or it mii^hl
be at th^ monthly sessions at HicksVHill,
or it luiglit be at the Hc'Stions at the Old Bai*
ley<, or it fiiight be before comnaisaionen uf
Oyer and Terminer, as perhaps it really was ;
but noil eomtai where it was takeo^ nor bow it
comes hither i it might be before your lordship
here, as wc believe it was, but inis copy not
letting us know where and bow it was taken,
we think we have not the benefit of this law |
for the party accused is by this act of parliA'^
ment to have a cony to atlvise with counsel,
that be may be enanled to plead. And that is
the reason why ihe words of tlii^ aot are eo
penned, that he shall have a copy of the whole
indictment, which we cannot plead to, unless
we know where it was taken, if we should have
occasion to pleAd any special matter. And be«
tiilesi my loVd, there is auotber reesoii why W9
IW]
8 WILLIAM III.
•bouM lia¥e the whole indictment to enable us
to plead, because if we bad the Caption, it miflfbt
perhaps ap[)ear, that Ihe iodictment wai taken
before the time of the fact alleged in the in-
dictment, and then that would make it Yioious ;
it might be belbre the 9th of February, when
this treason is said to be committed, and thep
we ought not to be brought to trial. Now the
design of this act of paniament, in giving the
prisoner a copj of the indictment so lon^ be-
fore the trial, was net only to enable him to
make his defence upon the trial, but also to ad-
vise with counsel to plead ; for so the words
are,^ the better to enable him to plead.' Now
we savr to answer tbb end, it is necessary we
should have a copy of the whole indictment, as
it stands before your lordship in court. And
another reason is this, it is no indictment, un-
less it be presented by the jury, as their inqui-
sition upon oath, unto some court that has ju-
risdiction of the matter: what we have deli-
vered to us is only a copv of a bill as to be de-
livered to a gitmd jury to oe found ; non constat^
that it is found. Now the intent of the act of
parliament beinsp to give the prisoner this ad-
vantage to enable him to plead, he may have
severfi pleas, of which he micht take a legal
advantage if he had a copy of the whole, which
he knows not how to come at now ; and in truth
it is very necessary, because if he be tried upon
an indictment found in another county, then
these commi^oners have not a legal authority
to try him ; and if the trial should go on, and he
be acquitted, he is subject to be indicted and tried
again, and never can relieve himself by the ac-
quittal upon such an indictment before persons
that had no authority to try him. I doubt he
can never plead the acquittal, because he can-
not make out, that he was duly tried and ac-
quitted : and for these reasons we humbly sub-
mit it to your lordship, whether we have had
the benent of tliis law, in having a copy of the
whole indictment to enable us to plead ; and if
we have not, till we have that benefit, we
humbly conciive this trial ought not to go od.
Mr. Phipps, My lord, the question is, Whe-
ther the style of the court, the persons before
whom it was taken, and to whom the present-
ment is made, the time when it was taken, and
the place where, ought not to aopear in the in-
dictment ? tliis law requiring tnat the prisoner
■bould have a copy of the whole indictment to
enable him to plead ; for if it should hap|)en,
that the indictment was taken before persons
that had no jurisdiction, then I believe it will
not be denied but that the prisoner might plead
to the jurisdiction, and there might be several
other pleas that he might take advantage of.
I would desire to know of the king's counsel,
whether ever they saw a copy of an indictment
^ven in evidence, or pleaded without the Cap-
tion. It is not a true copy witliout it; there
ought to be the time, the place, and the style
of the court before whom it is taken.
Ait. Gen. Truly, my k>rd, I think 1 need
•ay no more to this olgection, than it does not
iH a proper time; far, with
Trial of Ambrose Itookwood,
if the prisoner will upon thb act say he 1
had a copy of his indictment to enable 1
plead, he ought to have taken the advan
It before he did plead ; that is the'propi
for him to object thb matter to the cou
if, after he has had such a copy as this p
hashed, he does submit to plead, wit
mission it is too late to come at his tr
make this objection, he cannot be reoc
make it after.
L. C. J. That is a full answer, Mr. At
Att. Gen, I think it is, my lord, wit
mission, not that we would wave givin;
answer to it, if it were in a proper tim
the metl^ of proceeding roUst be, i
tliink we have no occasion at this time
any thing more to this objection.
X. C. J. No, no, that is a full answer
point : for look ye, you that are of coui
the prisoner, when once you have plead<
admit you have had a copy ; for the co
given you to enable you to plead, and
you have pleaded, you have passed by
vantage that you could have from thf
as to any plea that you can make : for it i
for granted ye had a copy to enable
plead, and to advise with your counsel al
since you did plead, and did not insist
at the time of your arraignment that j
not such copy.
Sir B, Shower, My lord, we have pi
one doubt ; we humbly submit it to the <
Sol. Gen. It was their own fault, tt
objection was not made in time.
X. C. J. That doubt of yours may s
another time, but now certainly it is qi
of time.
Sol. Gen. Nay, my lord, even upon
raignment tbat would not serve their tu
ther.
L. C. J. We will not enter upon tha
pray go on to swear the jury.
CI. ofAr. You, the prisoner, look t
challenges, as I told you before. Cry<
sir Jeremy Saiubrook.
Cryer. Vous avez.
Sir B. Shower. Mr. Rookwood, you
make your own challenges.
Rookwood. I do not challenge him.
CI. of Ar, Then hold sir Jeremy the
8ir Jtr. Swnbrook. My lord, I am unt
of serving upon tiiis jury, for I have be
these several years, these dozen years ;
not hear what is said in court, thoug
now so near the court ; I could not hef
your lordship said, nor what was said
bar. I have a certificate here, if your h
please to have it read ; and most of the |
of quality about the court know it to be :
Att. Gen. My lord, I am afraid it is
L. C. J. Nay, if it be so, it is not iitti
he should be upon the jury, when he
hear what is said : you must excuse
reriiv Sambrook. Go on to the next.
CS. ofAr. George Ford. — Cr^er. Von
CI. of Ar. Look upon the prisoner.
BjoAmo^i^ 1 challenge him.
Jbr High Tnoion.
Mr. FonI, you must not go away,
apoo aoother pannel, wherein you
Aoyedy though you are now chal-
. William Underhiil.
challenge him.
. William Withers,
challenge him.
SamuelPowell.
do not except against him.
Then swear Mr. Powell.
M>k upon the prisoner. You shall
ly ^y> ^"^ ^^^ deliverance make
r sorereign lord the kinpf) and the
lie bar, whom you shall have in
I a true verdict give according to
ce. So help you God.
Thomas Trench,
challenge him.
John Wolse.
challenge him.
James Bodingtoo.
challenge bim.
John myroond.
challenge him.
Richard Marsh. [Be did not
Georjre Haws.
challenge him.
. Fiancis Barry.
challenge him.
. Arthur Bnily.
[ except t)ot against him. [Sworn.]
. John Webber.
do rot except acrainst him. [Sworn.]
. Thoiuas Glover.
I challenge him.
Dormer Sheppard.
challentre him.
. George Tredway.
do not except against him. [He
Matthew Bateman.
' challenge him.
Timothy Thombory.
[ challenge him.
. James Partberich.
[ challenge him.
. Thomas Freeman.
i clial!enge bim.
'. Joseph Blithit
I challenge him.
. Timothy T/eonoy.
[ have nothing to say against him.
om.]
. John Harris.
I do not except against him. [He
. JohnBillers.
I challenge him.
'. Richanl Bourne.
I challenge him.
% George Carter.
! do not excentagainst bim. [Sworn.]
'. Francis Ctiapman.
I cfaallcBge him. .
*. Alexander Forth.
A. D. 1696.
tl58
Hookw. 1 challenge him.
CL (fAr, Thomas Playstid.
Hookw, I challenge him.
CL ofAr, William EUey.
Rookw, I do not except against him. [H#
was sworn.]
CL^Ar, John Marsh.
Kookw. I have nothing to say against him.
[He was sworn.]
CL of Ar. I^muel Hooper. (He did not
answer.)
X. C. J. Did Mr. Hooper appear f
CL o^At. Yes, my lord^ he is marked as
appeanns^.
L. C. J. Then you ought to call him Bgtan^
and set a fine upon his head.
CL ofAr. Cryer, call Samuel Hooper.
Cryer, Samnel Hooper, come into court and
give voar attendance, upon pain often poandf
for tfie court has recorded your appearance.
CLafAr. John Hall. .
BjookuD. I challenge him.
C/. ofAr. Nicholas Roberta.
Rookw, I challenge him.
CL ofAr. William Partridge.
Bmkw. I challenge him.
Sir B. Shower, How many has he chl^t'
lenged, Mr. Hardesty ?
CL ofAr, I will tell you, sir Bartholomew.
He has challenged 94.
Sir B. Shovcr. Well then, go on, sir.
CL ofAr. Peter Laveane.
Rflokw. I challenge him.
CLofAr. Thomas Moody.
Bjookw. I challenge him.
CL ofAr. Richard Bealing.
Rookw. 1 challenge him,
CL ofAr. Thomas Evans.
Rookw. I challenge him.
CL ofAr. Thomas Rammage.
Rookw, I challen^ him.
C/. ^^r. EdwaroTownshend.
Rookw, I challenge him.
CL ofAr, William Gunston.
Rookw. I challenge him.
CLofAr, Samuel Freebody.
Rookw, I do not except against him. (He
was sworn.)
CL ofAr. Philip Wightman.
Rookw, I challenge him.
CL of Ar. There are now thirty-two chtU
lenged. John Wyberd.
Rookw, I challenge him.
CL (fAr, William Strowd.
Rookw, I challenge him.
CL ofAr, Daniel Byteild.
Rookm. I do not except ugainst him. (Ha
was sworn.)
CL ofAr, Benjamin Noble.
Rookw, I have nothing to say against him«
(He was sworn.)
CL of Ar, Cryer, count them. Samnel
Powell, — •
Cryer, One, &c.
CLofAr. Benjamin Noble.
Cryer, Twelve gfood men and true, stand
together, and hear your evidence.
159]
8 WILLIAM in.
The names of the twelve swoni were these :
Samuel Powell, Arthur Bailey, John Webber,
Geor^ Tredway, Timothy* Lennoy, John
Harris, George Garter, William Atley, John
Marsh, Samuel Freebody, Daniel Byfeild, and
Benjamin Noble.
L, C. J. Look ye, Mr. Phipps, your oljce-
lion upon the indictment slipt me, and therefore
I would speak to it now : You said it might be
as well a copy of the indictment before it be
found, as well as this a copy of the pannel be-
fore it be returned. Now that cannot be, for
an indictment is not an indictment till it be
found, it is <mly a writing prepared fi>r the
case of the jurv, and ibr expedition ; it is no-
thing till it IS ibuid, for the jury make it an
indictment by finding it, they may alter what
they please, or refuse it absolutely. And if the
jury, upon examining the witnesses, would
only present a matter of fact with time and
place, the court might cause it to be drawn up
mto form, without carrying it to the jury :
again, there needs no Bilia vera; for that is
only the jury's owning that which the court
has prepared and drawn up fiff them : but a
pannel is a pannel when it is arrayed, before it
De returned, and a copy of the pannel given
before it be returned, is a copy of the pannel
returned, if it be afterwards returned, as it
must.
Sir B. Shower. But, my lord, that notion
atrengthens our objection that we last made,
that makes it necessary that we should have a
copy of the Caption, as well as the other part,
to make it a true copy of the whole iudict-
ment.
Z. C. J. That is another thinjf, we will
talk of that another time ; but I speak of this
only as to his objection, which slipt my me-
mory, because I would have nothing remain
unanswered.
Mr. Phipps, My lord, when I lie Bill is
ibund, the copy that we delivered before is as
much a true copy of the indictment as our
oopy of the pannel is a copy of the jury re-
turned.
L, C. J. A pannel is a pannel, when it is
arrayed, but a bill is not an indictment till it
be tound ; one cannot say a man indictatm
egistitf till it be found ; afl that we say of it
before it oe found is, that there was quadam
Billa preferred to the grand jury, and if the
jury bring it in Ignoramus, whereby they
disown tm presentment, it is cancelled, and
there is no record of it, nor nothing, only a
memorandum in the clerk's book perhaps,
that such a thing was. Well go on.
CI. qfAr. Cryer, make Proclamation.
CJryer. O yes, If any one can inform my
lords, the king's justices of Oyer and Ter-
miner, the kiag's serjeant, the king's attorney
general, before this inquest to be taken, of the
bigh-treason whereof Ambroee Rookwood, the
pnaoner at the bar stands indicted, let them
come forth, and they shall be heard ; for now
the prisoiier standi at tha tar upon hit de-
Trio/ ofAmbroie Roohcood^
liveranoe, and all others that are bouDd I
cognizance to give evidence against th<
soner at the bar, let them come forth, anc
their evidence, or else they forfeit their n
nizance.
CL ofAr. Ambrose Rookwood, hoi
thy hand, (which he did). You thi
sworn, look unon the prisoner, and hearl
his cause. He stands indicted bv the na
Ambrose Rookwood, of the pansn of St.
Covent- garden, in the county of Midd
f^nt. for that he, together with Ghrist
nightley , not yet taken, Robert LowicI
Charles Cranbume, and divers others,
traitors, &c. — prout in the indictment,
talis mutandis^ and against the form c
statute in that case made and provided,
this indictment he hath been arraigned
upon his arraignment hath pleaded not g
and for his tnal hath put himself u|iof
and his country, which country you
your charge h to enquire^ whether he be i
of the high-treason whereof he stands ind
or not guilty ; if you find him guilty,
are to inquire what goods or chattels, lai
tenements he had at the time of the
treason committed, or at any time stn<
you find him not guilty, ye are to it
whether he fied for it; it you find that b
for it, you are to inquire of his goodi
chattels, as if you had found him guili
you fiod him not guilty, nor that he did i
It, you arc to say so uod no more: and
your evidence.
Mr. Mountague, May it please your
ship, and fou gentlemen of this jury, tli
dictment that has been rt-ail to you, does d
the prisoner with high -treason tor compa
and imagininc^ the ncatli of the king, fc
deavouring to subvert the government, s
subject the people of England to the slavi
Ix»wis the French king ; and for this eo
indictment sets forth, tliat the prisoner s
b:ir did privately meet with several false
tors, to consult how they mi*>-ht compai
death of the king, and commit those other
sons; and that the 10th of Februar
Cofent-gorden, in this county, it was a|
among them, that they should get tog
forty horsemen, whereof the prisoner a
bar was to be one, and they were to lie u
bush, and set upon the king in his coach
his return from going abroad ; some we
attack the coach, others to attack the gi
and there were some to kill the king ii
coach : and the indictment does Tik
charge the prisoner with gathering tog
horses, and providing arms for this piu
To this indictment, gentlemen, ne
pleaded not guilty ; we shall call oor
ncsses, and prove the fact, and when we
so done, we do not at all doubt but yoo w
your duty.
8ir £. Shower. My lord, before Jiha
nesses are called we have a doubt to prapi
your lordship upon this act of parliamenl
that it| whether we are to take our «]
^r High Treason^
lis indictineBt before the e?ideQce be
A. D. 1696.
[162
giWi
li ihouki properly be before the
The words of the act, my
* before the evidence gi?ea."
That act proFides, That if you do
be advantage of it before the ewi-
I, jroa shall not move tb^t in arrest
Hi.
lower. It ooly says before evidence
DO evideooe Ms yet been given.
But you are certainly very irre-
oint of practice, nobodv ever took
to an iDuictmeBt after the jury was
lowr. If your lordship pleases to
da be read of tlie act of parliament,
lese : Thai no indictment shall be
oaleaB exception be taken in the
e the tml shall be, before any evi-
ti in court upon that indictment.
sav, strimgly implies, that the law-
ugnt it m^t be done at any time
eTidence was given in open court,
1ft the law takes notice that after
it shoold be of DO avail ; it would
a rery improper expression beibre
iven ID open court, if it bad meant
fory were sworn and charged ; for
evidence supposes the trial com-
f they had intended it otherwise,
tat it should be before the jury is
ey woukl have expressed it to be
i arraignmeot : but mentkining it te
the court where the trial is to be,
ience given, that supposes the in-
» be at issue h^ore the party needs
is exceptions. Therefore, my lord,
'e are regular in offering our exoep-
Pray, what say you lo it, Mr.
a. Truly, ro)r k>rd, I think they are
jTular ; for, with submission, I take
High this Act of Parliament has in-
!ni with several tilings which were
Ue by law before, yet as to this part
Mil aflowed to take exceptions to the
:, otherwise than they could before
IS passed : nay, so far from that, that
Isbip looks into^tbe act, you find they
ned in this point from an advan-
tbey bad before, that is, they
move any such things as are
itioned, after verdict in arrest of
; so that this part is restrictive to the
ind lakes away some advantage that
fore ; which was, moving in arrest
sot slier verdict ; but it leaves the
rceptioBS as to any time before the
it was before, which was beibre plea
Ml not aiVer the jury sworn : for it
denied that in point of practice, such
this that is now offered couM not
dane before the act. I would be
ow whether they can shew any pre-
nii.
cedeirt of any such thing as they now contend
for. They say, the words of the act are, excepi>
tion must be taken before evidence given ; but
that must be taken at such a time as t\iej
might by the course of law do it before : for
when the jury is sworn, they must give a ver«
diet, and I do not know how ihey can be dis-
charged without giving a verdict ; therefore
unless the act had given directions for a parti-
cular manner of proceeding in this matter,
which it has not done, your lordship will not,
1 presume, do it in any other manner than as it
was before the act made ; and if there be no
precedent to be shown of any such thing as
this, of taking exception to an indictment after
the jury sworn and charged with the prisoner ;
then there is no power in this Act of Parliament,
given to them to take exceptk>ns to this indict'
meut at this time ; we take it the motk>n is
very irregular upon all accounts.
60/. Gen. My lord, we first say, that it is not
proper for them to make any such motion aa
this upon this Act of Pailiament, till they tell
us what their exception is, that we may see
whether it be within the words and meaning of
this Act of Parliament. The only thing now
that is proper for us to consider, u the issue
joined, and the inquiry whether the prisoner at
the bar is guilty of the high -treason of which
he is indicted, to which indictment he has
pleaded Not Guilty : that is the thing that is
now before your lordship to be tried, they have
room for exceptions to the indictment after-
wards, for some exceptions T mean, (I do not
know what their exceptions are) but if they be
such as may be taken after the verdict, then I
am sure they are irregular now in their motion,
and they can shew no precedent, when it was
done after plea pleaded and issue joined, as it is
in this case.
Mr. Conyers. The advantage that the act
l^ves the prisoner, of having a copy of his
mdictment so long before trial, is to enable him
to plead, or to take exceptions to quash it ; but
I never heard a motion to quash an indictment
after a jury is charged to hear the evidence.
Certainly they ought to do it before plea
pleaded, and not now to come to make a motion
to quash the indictment, after they have pleaded,
and the jury sworn : therefore we suumit it,
upon the constant practice in like cases, to the
jud^ent of the court.
8ir B, Shower, In answer to that which Mr.
Attorney hath said, that it is an improper time ;
I thought truly 1 had moved it for the advan*
tajype and ease of the king*s counsel, that they
might not proceed upon this trial, when per-
haps after all their trouble, the foundation,
which is the indictment, may fail. I have a
great many exceptions to timiiidictment ; they
say we should name what our exceptions are :
I will acquaintthem with them as fast as I can;
if your lordship please, the indictment is very
louse and uncertain.
L, C, J, Certainly the motion is irregular in
point of practice.
8ir B. Shower. My lord, we weieafinid, wt
M
163]
8 WILLIAM m.
Trial of Ambrose Rookwood,
[Mi
■houid be excluded from taking these excep-
tions afler the evidence given.
X. C J. ^ you are by the express words of
the act.
8ir jB. Shoicer. Then certainly we may do it
before the evidence given.
JL. C. J. But the act does not say, ye shall
do it any time before the evidence given, ospc>
cially in such an irregular manner, after issue
joined and the jury swoni. Suppose Mr.
ikttorney had given some evidence.
Kir B. Shincer, Then, my lord, I ngreo we
had Ijeen without the words ; therefore I now
move it before the evidence, because the Art of
Parliament has given me liberty to do it betbre
the evidence given : fur the law having given
this liberty to tlie prisoner, to make such excep-
tions within such a time, your lordship wdl
not restrain us from making use of that liberty
further thmi the law has restrained, but we
may make use of our exceptions betbre the
evidence given, eillier to induce your tordship
to quash the indictment, or the iary to find us
Not Gujily, as we hope your lordship will direct
them to do : for what is more common upon
indictments after the jury are sworn, than if
facts appear ii|h>u the record not to be suffi-
ciently alleged, the court will direct the jury to
find the party Not Guilty. We think this net
does give us this liberty, othetwise I know not
to what purpose it was made ; the rery mean-
ing seems to be, that the exceptions of the
counsel for the prisoner might be of prejudice
to the king ; and therefore it says ailer the
king's evidence given, and the fact discovered,
no such exceptions shall be mode : therefore
we must make it l>eVore the evidence gi^-en,
otherwise this Act of parliament, that was de-
■igned in favour of the prisoner, will jprove a
very great hardship upon him, especially in
case of an imperfect indictment, as we appre-
hend this is, and he will be in a worse condition
than ever he was ; he must take his exceptions
now or not at all. The act says, he is not to
take it after evidence given ; and by construc-
tion the kind's counsel would have it, tliat he
should not give it before : and consequeDtlj he
lias no time at all to give it.
L. C. J. Have not you had time to do it be-
fore now, sir Bartholomew Shower? Cer-
tainly you had. Yon had time thb day seven-
night, when you were arraigned ; you have
had vour opportunity if you vrauld have taken
it ; the jury are now charged, the indictment is
opened, they have been told what they are to
enquire of, and now you would break in and
take exceptions to the indictment.
Sir B. Shoacr. My lord, this is a new act of
parliament, it says we shall take our exceiitions
before the evidence given ; which we take it, is
any time liofore the evidence given; and if
your lordship will not allow us to do it now, it
may be, we may lose the benefit of it absolutely.
Z. C J. It is one question whether we shall
allow it or no ; and another question whether
you can claim it or no : certainly it is an irre-
gular notioD, and the likeof it wu neier eiler-
ed in any case before, be it criminal or civil
for if it be a criminal case that is not felony o
treason, when the issue comes to trial upon ai
indictment, did you ever know any exoe|Mioi
taken to the indictment afler the jury wcv
cliHrged ? Certainly it is contrary to an prae
tice ; and it is not fair, the court is not «d
flealt with ; you have had an opportanity be
fore, and will you now put tlie court and thi
jury to Ko great deal of trouble, to stay till tb
jury be called ovrr? The prisoner called lo -ki
chaliciiiircs, he has challenged thirty -four, th
jury is sworn, the indictment is read to i '
the charge given ihem, the connsel have i
ed the indictment; and now when the hm
is only to try the issue with which the jury an
charged, you come to turn us quite round, bg
taking exceptions to the indictment.
Mr. Vhipp$, My lord, we take it the M
gives lis this time to do it in.
X. C. J. You know you had another tim
more proper to do it in.
Mr. Phipps. My lord, if we have not tin
now ; then this clause with humble snbmiMsii
signifies nothing at all.
£. C. J. The clause was made in thiiM
pect, to your disadvantage, because you ahiMl
nave a copy of the indictment, whereby JMJ
might have an opportunity to advise with OOH-
•el, that they might instruct you how to jMj
and to take any manner of exception MM
plea pleaded, it ought to be before the tridi M
now because of tliis advantage, it nrovidei Ari
you shall take vour exceptions before the M^
and not move Uiem in arrest of judgment, Ai
is the meaning of the act.
Mr. Phipps. Then, my lonl, there needed n
time at all to be mentioned in the act, but hail
left It at ft was at common law.
JL C. X Yes, yes, there did need a time,!
be limited ; for this clause was made 1 lay i
yoor disadvantage, in depriving the priaonerc
the benefit of such kind of exceptions in arm
of judgment, because of the advantage tin
was given in the fbrmer part of the act, wb€f
yon had time nven you to make, your eseq
tions, for which end you are to have a copy I
the indictment five days before you are calledl
plead.
Sir B. Shfmer, We could not come beftn
my lord, as we apprehend, because the moii
of tlie act are " berore evklence given."
L. C. J. But I tell you, this clause watai
foryonr benefit, hut for your disadvantage.
w B. Sh9uer, My lord, what wc press ann
firom the very words of the act of purliament,
the meaning of the law -makers was ais fl
king's counsel now contend to have it ; dn
would never have used those words ** beAl
evidence gi\en in open court," but haveia
they should have had no advantage of the Ca
ception, unless it were before plea pleaded:
does not say it shall be uf^er the verdict, or v
fore the verdict, but l>efore the e\'idenee givci
now if they had meant what these genUeiM
say, they would have appointed it to be bcAi
the Terdicti which would have included d
Jw High T^-eoiOH.
ituam then it had been like the penning
•cfi of parliament, the statutes of Jeo-
d the like, whicb saj, that after a ver-
ih and such exceptions shall not arrest
cot : but if they can shew me any sta-
: is penned like this, they give me an
all those statutes are, that no judg-
all be arrested or delayed upon such
exceptions after a Terdict : but here it
ly sball not arrest judgment, unless
ptioD be taken before evidence given in
irt. My loni, we submit it to you, we
9 law-niakers did intend somewhat by
ticalar way of expression, different
olber acts of parliament ; and truly if
as we offer to your lordship, wc think
ive no meaning at all.-
ren. Truly, my lord, we think it is
in what the pariiament meant, by this
B ibis act ; the design was, to restrain
ner froan moving in arrest of judgment,
•pelUurr, or false Latin, or little matters
if he did not move it in a proper time,
udi a liberty allowed him, as to have a
the indictment sa many days betbre
ompelled to plead : they insist upon it,
words are, belorc evidence given ; it is
what can be the meaning ot that? It
at such time as the law allows ; it is
dog a new method of trial ; you Aall
vpiion before the evidence, that is, be-
trial, for it can never be intended, that
not to alter the course, and let the
bl«ak in between the timeof the jury's
som, and the evidence given ; that by
oald ever have been done before.
. Skimer. Pny, Mr. Attorney, when
«■ have us do it?
Gen. R^iilarly before plea pleaded, at
se before tlie jury be sworn.
/. Undoubtedly this is not regular, it
vy to all the course of practice, it is
dealiog with the court. But tlien there
wr consideratioB in the case, that I
lave you think upon: if so be tlus had
a trial by Niti Priut, then the judge of
"tatf is only to try the issue ; but now
e very record is before us, and we are
if the record, as well as we are to asist
f in trying the issue. Now take it in
ler case of the like nature ; suppose a
Ihe bar in any civil cause, though this
wry to practice, and the court not fairly
(tb, vet when we have the record before
fina an error in the record, cannot we
be indictment and discharge the jury ?
the question, Mr. Attorney, though I
Dttfcas, I do not know that it has been
Me.
Gem. No, my lord, in a case of treason,
ibc jury are once charged, they are to
rvdict, they must either acquit or con*
L Mower. It was done in Whitebread's
ifiL 7, f. 311 of, thii Colkctwn.
A. D. 1696. [166
Att. Gen. But I know what has been usu-
ally thought in that case, and 1 believe they
cannot shew me another.
L. C. J. Nay, that this is a very irregular
motion, is very plain.
Sol. Gen. Certainly, my lord, you must
take it as the Uw was before this act, for this
clause does nothing for the prisoner, but is
against him.
L. C. J. I know it is not for the advanta^
of the prisoner, therefore I put it as a case in
an action, or an indictment, as the law was
before, whether this being a trial in the same
court where the indictment was found, and we
find an insufficiency in the record before us,
whether we cannot quash the indictment?
Sol. Gen. Your lordship mentions civil ac*
tions ; with submission, nothing of that kind
could .be doiieafler^oncethe cause came to trial,
but in criminal causes accordinfi^ to the course
of practice, which will always be the law till
|Mu-ticular1y altered ; I believe nobody can pre-
tend that after issue joined, and a jury charged,
any one can move to quash the indictmeDt, I
think I have heard it often said in this court,
that in capital cases, as high-treason, you may
put in a plea in abatement of, but not a motion
to quash an indictment; 1 am sure it was
disallowed where I moved to quash an in-
dictment of murder, let them but show any
precedent of this nature.
Sir B. ShotDer. We will show you, though
this is the first case upon this act of parliament,
therefore to show any practice upon it would
be very hard to require of ns.
L. C. J. But can you show it before this
clause in this act of parliament ? whicb, as I
told you, is not for your advantage ; it does
not ^ve that liberty that you desire.
Sir B. Shower. All the clauses in this act
of parliament showed their intention was
this, that the sense of the law- makers was^
that we should have this liberty at any
time before evidence given, for it there lie
such words as showed they thought it
might be quashed at any time, though they
were mistaken in the practice, yet we shall
have the liberty that they intended us ; and
the wording of this act shows, that the parlia-
ment thought it might be done alter tlie trial
begun, before evidence given, because they
restrain us from taking those exceptions after
the evidence G^ven ; and it is no prejudice to
the king at all really, it is rather for the ad-
vantage of the prosecution, because there is
none of the evidence disclosed, and therefore
if the indictment should be found faulty, still
the evidence remains undiscovered upon ano-
ther indictment ; and 1 have often heard It
said at this bar in cases of indictments for fe-
lony or treason, as murder, or tlie like ; if any
one did come as amicus curiae and acquaint-
ed the court, that they were ^iiig to proceed
upon an erroneous record, or give an erroneous
judgment, or do any other erroneous act, he
ought to be received with kindness, because
he would prevent a wrong doing.
l&T]
8 WILLIAM UL
Trial qf Ambrose Rookwood^
[UB
L. C. J. Tliftt is ID the proper time, not to i or aoy such notorious crime, till after' the lad
interrupt the trial when thcjiiry is once sworn.
p Sir B, S/iOicer, We are rcaily to oflTer our ex-
ceptlons, and we ho|u: it is no preiudice at all to
the kin^;^ before the evidence of tuetact isf^iven.
Air. Fhipps. My lord, I perceive that this
clause, as they w oiild have it, is iutended to
prevent us from moving that in arrest of judge-
ment, which we could have moved l»efore, aud
ties us up to do it betbre evidence given ; now
I would fain know, if we could not before this
act move in arrest of judgment for mis-spel-
lingf, or false LsUin, or improper Latin.
^U. Cim, You mi^ht, no doubt of it.
Mr. Fhipps. They say we might ; why
then, if we could have a 'time to move it af>er i time, that then they should take their
the verdict, aud that lime is abridgeil hy the '. tion and no other time : The act has only Hi
act of parliament, which directs that it shall | a bound, that ihey shall not do it afterwurii |
but as to the particular time, it is left as it 1MI
determined.
L. C. J. No, we were always of that «|pi-
nion, never to allow motions to quash indict-
raents for perjury, murder, or any great of-
ience, but it must be moved in arrest of judfi
ment afterwards.
Mr. Cowper. My k>rd, these geatlciMi
seem to beg the question u|»on this ad of ysr
liament, as if it had apiiointed this lo be thi
time of making exceptions to the indictaMBLj
the act of parliament does not say yon ah4
make your exception immediately^ Mibre tiM
evidence given in open court, as if it had fumtk
ed out and directed to them that partieahi
be before evideuce given in open court, surr;
we may take any time befto'c the evidence
SVen, aud shall not be restrained further than
e letter of the law has restrained us ; for
this act was intended for the benefit of the sub-
ject, and ought to be construed as much in their
favour as the letter of it will permit.
Ml Cen. No doubt of it, it is to be done
before evidence given : but the question is, at
what time it must l>e l)cfore the evidence given,
whether it must not be at such time as by the
course of practice and usage of the law it
should ha\ e been done before ; if you will sa-
tisfy my lord and the court that ever such an
exception was taken, or an indictment quashed
between the swearing of the jury and the giving
the evidence, ye say something ; but 1 be-
lieve not one instance of tliat nature can lie
given, and therefore it is very irregular for
lem to do it.
L. C. J. They do not pretend to it, for aughl
I bear, for 1 would put tnem upon it, to show
ine whether they could do it before.
Sir B. Shou'tr, I do not question, my lord,
but it might be, with submission.
Mr. Conifers, Did you ever know it before
that any one undertotlk to inform the court as
amictu curids^ but it was to prevent a wrong
judgment ? And for that you have your pro-
per time either before plea pleaded by motion
to quash the indictment, or after \erdict to ar-
riist a judgment ; this act of parliament han
restrained you in particular instances that are
mentioned from doing it after verdict in arrest
of judgment; but having given you a copy
of the mdictment before you pleaded, ^ou have
had a pro|>er time to make these exceptions ;
and if you have laiiscd your time you come too
late to do it now, for sure nobody eicr made a
motion to quash an indictment atter issue join-
iBd, and the jury sworn.
Sol. Gen. My lord, I would only mention
one case, and that was of sir Richard Mausell,
upon an indictment of murder, for killing the
apothecary in llolborn ; I dicl myself move
to quash the indictment, because it was not
expressed in what year of the king the fact
was done: but the court was of opinion we
iould not move to ^ua^h an indictment for that.
before to the nyular course and method of piti
ceediiigs, which is before plea pleaded. <
Mr. Fhipps. My lord, they do not aDMNi
my objection ; it is, it seems, a restriction sf -|
liberty that we had before of moving in aili4
of judgment ; if so, we ought not to bo it>
strained further than we are by the words of Ikl
act of parliament, which say, before evidsM|
given, that is, at any time before evklenoegirMi
as well aiiev as betore plea pleaded.
Sir B. Shoicer. I would sak these gentls— j
whether the law-makers intend«l that m
should have no advantage of excepting agSBII
false spelling aud improper Latin ?
BIr. Conifers, Yes, they did, but that }«
should do in your profier time.
8ir B. Skotcer, Then the time for doiag 1
must be that whieh the wonls of the law i^i
before the evidence given in open court, SM
that is now.
Mr. Coni/er$. No, you might have come i
the day of arraignment, and have taken the ad
vantage of it then before you had pleaded.
L. C. J. Ye hare had my opmion whsft ]
think of it, my lords and brothers, I auppan
will tell you theirs.
L. C. J. Trebi/, My Lord Chief Justice hi
delivered his opinion' in this matter, and b
thinks fit that we slM>uld deliver oura. I thid
this motion of the prisoner's counsel to quad
this indictment after the jury sworn, is iii«
(j'ular and (juite out of season ; the intent I
tliis clause ui this act of parliament, certaiil
was not in favour of the prissoner ; it abridgsll
him of a liberty he hail la'fore, but gives Ui
nothing: for the law-makers did think tba;
had given the prisoner an extraordinary fovM
in the foregoing part of the act, in giving hii
a copy of tlie indictment five days^ before h
should plead, aud a copy of the pannel twodaj
before he should be trietl, and allowing hn
counsel : and all these advantages were I
enable him to auash the indictment, or fl
process returned, for the clause extends I
both ; the words are, ** That no indictment M
process or return thereupon, shall bcqumhi
on the motion of the prisoner or his counsel fi
mii-writing, mis-spelling, false or impinp
fit High Treoion.
ilm eareqitioD concerning' the same be
dJ made in the respective coart where
al shall be by the prisoner or his coun-
rami bcffire any eridencc £fi?en in open
lon siich indictment, norsiial) any such
Kin£r, &c. after conviction be any canse
ladgment :" Tlierefore they made this
tioary profision to restrain the pri-
n part, by this clanse; as much as to
have m advantage of the copy of the
9ity and you may make use of that to
by motion, if you think fit, as you ma^
I process* but it shall be * beforo evi-
ivcu.* It is true, those are the words,
osinir that term, viz. * quashing' such
eot or process, shows it must be done
a way and time as is proper for quash -
d the very words are, that it shall be
scion. Now we are to ex|H>nnd those
And 1 say, a motion to quash an in-
ty mast be' understood a motion in the
aeasoo, which I think is before plea
; hut at least before the jury is sworn.
iere three times when the prisoner
ia%e had the advantage of a fault in the
ait before this act. 1. By motion to
before plea pleade«l. 8. Then af^er-
I arrest of judgment : and 3. Af\er that
of error. Now this clause of this act
ray the privilege of moving in arrest of
Bt for mis-writing, &c. but saves the
ge upon a writ of error, and upon a
to quash the indictment. We are to
r what is a proper time for a motion to
■ indictment; the motion is to be made to
1 and to them alone. It is not to be made
ovrt and the jury. When the jury is
il application is to be made to the court
■g a jary prevent which they are to as-
tW trial and determination of the fact
I'bat use then is there of the jury, when
ie this motion, which consists only in
flaw? They mustbtand by and i>e*out
* all the while this motion is makiiij^ :
I n«>t reasonable, nor certainly ever was
d, that af\er a jnry is sworn to try a
nf fact, they should stand idle while you
Ihitt^ which you should have moved
they came to the bar: suppose you
DOW move some exception to tlie Venire,
trstnrn tliereupon, should we, when we
•V also have admitted the jury to be
quash the process whereby they are re-
f And yet we may as well do that as
For, Uie act provides in the very KSine
sofH-eming quashing process and indict*
But wIkd the jury is sviorn, and
o receive their evidence, sure, then it is
ill seamn to make such a motion ; there-
do not think the pariiament intended by
ia«e (which was a kiml of exception to
uar the prisoner received by having^ the
fthf! indictmeni) to institute a new me-
' proceeiliD|(s fur motions to quash in-
nls, even when a jury is at the bar and
!• try the issue, and there is nothing
ID ht prpcodad upooi but ODly to bear
A. D. 1696. [170
the evidence produced for the proof of that
issue, till the jury b dischargeii. But still
this I would say, this is a new case, and
upon a new statute. I am tmly of opinion,
that the motion is altogether unseasonable
and irregular, and it should have been
made before, and j^ou had a full oppor*
tunity to make it this day seven -nif^ht before
Elea pleaded, and you might likewise to day
efore the jury was sworn ; therefore when the
jury are now at the bar actually entered into,
and employed u|>on the service, the court
ought not to lie interrupted by such a motion.
Yet nevertheless 1 would propound this, that,
seeinj( it is a new case and uiK>n a new statute,
the court would forgive the irreg^nlarity, ^fur 1
think it does need forgivcn(.f)s) and if the king's
counsel will consent to it (to prevent any error
or any pretence of hardship u|k>u a new law)
that we should hear thf ir exceptions.
L. C. Baron. (Sir Edward Ward). This act
of parliament, as it has given a benefit to the
prisoner that he had not before, in allowing him
a copy of his indictment, in order to his making
exceptions ; so it has restrained him as to the
time of makin<^ those exceptions : that he should
have time, there is no doubt: the time limited
for it, as this act says, must be before evidence
given, because they th<iught it unreasonable that
there should be any qiiasinng of the indictment
after such time as*the king had given any evi-
dence whatsoever in the case ; for that would
be a discf ivory of the king's evidence, and great
inconveniences would ensue thereupon ; but
the questiim is at what time this is to be done ;
whether it may be at any time hefbre evidence
gfiven or no ; it did intend surely that the mo«
tion to quash the imliclniout and the exceptions
to it mi^rlit have their proper effect, and that
must be before the trial ; for it was not the in*
tent of the act to alter the metlio<l of proceed-
ings, and it is to no purpose af^er the jury is
sworn, for then their proper office is to deter-
mine the fact ; now if before this act of parlia-
ment it never was allowed to take any such ex-
ception as this after the jnry sworn, it will be
consistent with the words of the act of pariia-
ment, which are, * That it shall be done before
* evidence given*: if then it be in the regular
time for motions, which is before plea pleaded
or jury sworn, that is, before evidence given ;
for it is not said, as Mr. Cow per observed, that
it should be immediately before the evidence
given, I think sure such an exposition as was
Ibrmerly made ought to he made in this case,
the time not being precisely fixed by this act ;
if there were a certain time determined when
men should take their exceptions, as we know
it has been in practice before issue joined, then
af^er the jury is sworn it is an improper time
then, I think, to make such exceptions : I do
not suppose this act, as to the method of pro^
ceedings , than it was liefoi-e, but this ex-
ception ought to be taken before plea pleaded :
tmly it is a new act of parlinment, and this is so
far within the words of the act that it is before
evidence given, as the couiwel for the prisoner
171]
8 WILLIAM III.
Trial ^Amiroie Raohoaod^
[17J
say. If this can be governed and ruled by
proceediog^ and pracUce in former timtis in
cases not of feloay or treason, but oaly in cri-
minal cases : If nobody should suifer bv any
interpretation, I should think it oujjrht to bear a
conformable construction to what the practice
"Was before. 1 lake it you have lost the re^lar
time for makings your exception, and you iiifert
the whole method of proceedings u|>on trials :
for to what purpose is it to take exceptions to
quash the indictment when the jury are once
char^^d with it ? If it be an indictment that
ought to be quaslied, the jury ought not to lie
cliarged, 3'ou have had two times, and they are
both of them elapsed, for this matter, that is, at
the arraitjrnineut, and before the jury sworn;
yet I woiild propose it to the kind's counsel as
my lord chief justice of the common pleas
has done, it being a new case, that it sliould be
better considered of and agi-eed upon, that in
these cases we mav cro on upon a certain rule
that it may be established for all time to come.
Just Nevilr. 1 would begin with the pro-
posal, because, I believe, I may not he so clear
m my opinion, otherwise I must df^Iiver my
thoughts according to my judgment, but 1
ivould have tlie king's counsel consider of the
proposal.
Att, Gen, My lord, for us to consent to that
in such a case as this, where the court thinks it
not regular, would be pretty hard to desire of
us; if any thing of advantage should happen
on the other side, I verily think the counsel for
the prisoner will notl>e so ready to consent to
wave any such advantage, nor am I for asking
them to do it ; this clause goes only to some
faults in the indictment ; mis-spelhng, mis-
writing, false and improper Latin, that is all that
they are restrained from moving in arrest of
judgment ; any thing else, any uncertainty or
other matter, that is not compi-ehcnded under
these particulars, they may take advantage of
to move in sluy of jads;tnent at'ur u verdict ;
this clause does only abridge them from moving
in arrest of judgment for ums- writing, mis-spel-
ling, false or improper Latin ; therefore ii' your
lordship should think it reasonable we should
consent to let them in to make any exception
now, it must be confined to those particular ob-
jections of false and improper Latin, there can
be no colour to make the liberty larger, because
for any thing else thev are not restrained from
moving it in arrest of judgment, for there can
be no hardship in that case, as I think, they
have no reason to complain that there has been
in «ny other |mrt of the case; but for thase
particulars that there may he no complaiut of
nardship, if your lordship thinks it reasonable
we should consent, it may be we may be pre-
vailed upon to do it, though whatever hardship
does liap|)en it is their own fault, and the pri-
soner may thank his own counsel for that hard-
ship : if we assist them now to let them in, it
ouj^ht to be taken as « ff i*^' kindness ; and
truly, my lord, 1 am unwiiling to do any thing
that your lordship and the court should think
bard open the pnaoner. Certainly it ia the
ftult of their own oounael, now the law baa al
lowed the prisoner oonoadi, not to take tb
proper time, and parsue the naual piaihodi
and it is a strain beyond what ia iiraal, that w
must help theur faults by oar consent ; howeva
if the court think it reasonable, I shall not hi
against it, but then I am sure the court w|]
tiuce care they shall be confined to thoae parti
culars that are mentioned in the act.
X. C,J. No doubt of it: Therefora air Bai
thobmew Shower, are your exoeptiona for am
spelling, mis- writing, or false or impiepi
Latin f for if th^y he such things as yoo nun
move in arrest of judgment and hare thaiai
vantage, then there is no colour that we ibonh
break through all the rules of prooeedii^grl
admit such an irreguUir motion aa this.
Sir B. Shower. My lord, in the caae of lb
life of a man I will not take upon me to ag
what is mis-spelling, mis- writing, or fidie f|
improper I.Atin, or what is substantial ; .bol d
that I say is, I have five exceptions, ereiy ev
of them imports a doubt, as I take it, wortly
the consideration of the court, and some of ihgl
effectual enough to quash the indictmeni ; bri
for me, when a man's life is at stake, and J
partly depends upon me as his counsel, te ■■
what is pro|ier or improper Latin, or toadauH
to be matter of substance, and then to-monei
to have it come and told me, you should ban
moved this to-day, then I am sure they wmH
have reason to say, it was the fault of tbe pA
soner's counsel; for he would have dMH
very ill counsel, in me, I confess, if I abod
consent to put any such disadvantage apH
him. 1 beg the favour that I may have tbaJb
berty to propose my objections, which I thai
are worth considering of; it is for the adfl»
tage of the king for us to take our exoeptiw
all together, because, else, if any of them prM
material, the trouble of the trial will be hi
mispenceof time.
L. C. /. No, we cannot hear all yoor ob
jections, but those that are mentioned partiai
larly in the act of parliament ! for such as Ml
not mentioned in Uie clause, you have a pio
per time to move them in arrest of judgmeoL
Sir B. Shover. Then we will put tfaw
that are within the act.
AU, Gen. If we do any thing by way i
consent in this matter, we must insist upon il
that they lie confined to the particulars intb
Act ; we desire they may 0|>en their objeetiM
to the court, and if the court shall think thq
are properly under those heads, then they wa
consider ot them, if the court he ol* anothi
mind, then they must be reserved till the pie
per time.
L, C. J. Do you consent then, Mr. Attorn^
that they shall now take those ezceptiona tbo
are mentioned in theactof imrliament P
AtL Gen, If the court think it reaaonahl
upon those terms, 1 do.
Just. Fawys, Let them open them if yea
lordship please, and let us keep the power b
our own hauda to do aa our discretioni ihal
direct.
fir High Treason.
IVuty I do not know -n^kether we
thing in thb matter, 1 question
ler it be discretionary in os to
rh ell the common method of pro-
admit of such irregularities.
reby» 1 bate a great inclination to
lat we majr get rirl of these pre-
itions, which I am apt to think
Yened, disappoint the expectations
raised by this mentioning them in
t I have that opinion of the ability
lection of the counsel, that 1 be-
had had exceptions sufficient to
lictment, we should ha?e heard of
le more nroper than this now be-
rearin;; the jury and giving evi-
cro. But, possibly, the counsel
t to make an essay, and try what
•tit of ihis unusual expression in
Vo, DO, 1 know tliis is a piece of
oiirt is not well dealt with in it.
Treby, Indeed 1 am very willing
for that reason.
look apon it only as mere trick,
of art to take the opinion of the
trrr. My lord, it was my mistake
take it, if the act of parliament
otherwise, they woold have ex-
A. t>. 1696.
[174
oes the act of parliament give you
tVy and a greater than you had
It not deai^ to abrid^ you of a
oa had before ? Ortamly it never
t the court should admit of any
ceediugs.
f//. You should bare timed your
r ; for certainly now the jurr is
must give a verdict either ofac-
vietion ; and if you move to quash
nt, and your exceptions are ma-
ry cannot proceed ; you see what
motion has brought it to, 'tis cer-
fity irregular motion.
yehy. What judgment would you
ire? I would ask you that: if
on were moved before the jury
and it proved material, the proper
nv, that the indictment be quash-
r they are sworn, what judgment
re ? Must we not expect the vcr-
iry first upon the fact ? And must
e judgment upon your exception P
ouer. I know not whether your
r not give judgment first to quash
at, and then discharge the Jury.
Freby. And what if we do not find
sh it, then you will say, we must
he evidence, as we were going be-
rfering ? Are we to be doing two
ee? I am pretty certain you can
precedent for any like proceedings
it is confbuncung the offices of
i^"i7,
p$. If your lordships tried the va-
r exoeptioDii and nnd occasion to
quash the indictment, there wiH be no need of
a Jury. '
L. C. J. Upon the statute of Jeqfailes in a
civil cause, supi>ose at a trial at bar, it appears
u|>on the face of the declaradon, that there is
such a mistake as will be cured by the verdict;
bntifthe party had demurred, and shown it
for cause, it would have been fatal. Do you
think, when he has waved the benefit of de-
murrer and pleaded to issue, that you slialt
move this and help yourself by such a motbn^
becanse it will be helped ai^er a verdict ?
Sir B. Shower, It this act had been worded
as that Statute of Jerfaiiet is, it may be we
might not.
L, C. J. Wh}', it is not said, in the Statute
of Jeafailetf that it shall be good afler issue
joined, before the jury is charged or sworn,
but that it shall not be good afler the verdict.
Sir B. Shower, It is before the evidence
given.
L, C. J, Could he do so in any case before
this act, and does the act enlarge your libertyy
or abridge it?
L. C. J. Treln/, Sir Bartholomew Shower,
you iesist upon part of the words of the act of
parliament ; it suys, No indictment or process
shall be ouashed upon the motion of the pri-
soner or nis counsel, unless it be made before
any evidence, &c. Now, I suppose, the par-
liament use that expression, * upon the motion,*
in the same sense as it is useil in law, viz. for
such a one as should be in the time when mo-
tions for quashing the indictments are proper-
ly to be made ; now, when is that ? It is plain,
it was always before the jury come to the bar,
nay before the plea of the party. If that be
the proper time to make such a motion, then
that expression in this act of a * motion to quash
* the indictment* will very well help to con-
strue the other part of the clause that you in-
sist upon : For if the motion be made before
plea pleaded, it is certainly before the * evi-
* dencc civen* in your sense. And 1 conceive,
that under that expression [evidence givenj
which signifies the main part, the parliament
intended to comprehend the whole proceeding
to trial, beginning, if not from the pleading
Not Guilty, at least, from the Hwearing the
jury. « Before evidence given in court,' may
reasonably be expounded, * Before the prisoner
« hatli fully entered into that contestation of the
* fact, which is to be determined only' by evi-
dence in court. I attended the court of Ring's
Bench a long time, aiid I believe that 1 have
heard it said a hundred times, upon motions to
quash indictments of great or odious offences :
No, try it, says the Court, we will not quash it,
plead to it, let the fact he tried, ynu may then
move it in arrest of judgment. Those expres-
sions shewed that the pro|)er time for a motiea
to quash an indictment was before plea, though
they, in their discretion, would not grant a
motion to quash, in cases of such great offences.
But sure they did not think that when a jury
came to the bar, it was a tolerable time to move
to quash an indictment ; there was no expecta-
8 WILLIAM m.
176]
tioD of lieariDg of jiucb a motion then. And
certainly this clause which is made wholly
against the prisoner, sliould not be construed
to help him to sucli a new extraordinary and
absurd liberty.
Sir B. Shower, My lord, with submissioa,
that practice goes upon another reason, the
court would not quash it at ail u|)on a motion ;
this act of parliament supposes that you will
quash upon a motion at any time b^ore e? i-
dence gk?en : We never heard of a motion to
quash an indictment for felony or treason, bat
atill the court would always say, demur, or
plead, or move in arrest of judgment ; but by
this law it seems the sense of the parliament
was, that it mi^lit be quash t upon a motion.
Sol. Gen, 8ir B. Hhower is come to what I
said, that in truth there is no such thing as
quashing: an indictment for treason or felony,
as I mentioned in sir Rich. Mansel's case, and
I think the rule that was given in that case
will serve now in this case ; I am for consent-
ing, if they be kept i>itliin the limits of the act
of parliament ; but I must desire the opinion
of the court before we do consent.
L. C. J. Holt, Aye^ aye, Go on, brother
Nevile.
Just. Nevife, 1 must confess I cannot but
doubt, as this act is, there were two times that
tliey bad liberty of taking, these exceptions to
indictments; but indeed, in murder and treason
they were sehlom admitted, till they came to
move in arrest of judgment; but still there was
always a privilege, and a time given to the
prisoner, be the crime what it would, to take
that advantage which the law ^ave him, to
prevent judgment against him. Now I agree,
It is irregular and unseasonable to offer it now,
and quite different from all former practice;
you might have done it before now, the act
says expressly it must be done before evidence ;
but you might have taken advantage before tlie
jury was sworn, nay belbcs you had pleaded,
but you have lapsed your time. Yet truly,
notwithstanding y<>" ^^^'^ lapsed your time, I
cannot satisfy- myself to take away the liberty
that the law has given the prisoner sometime
or other, to except against the indictment. It
is plain that before this act, after verdict he
might have moved in arrest of judgment, now
he caunot do so ; whether the tault be in the
counsel 1 cannot tell, but the great prejudice is
to the person that is to be tried, who will now
be wholly precluded from making any advan-
tage of the exceptions be has to the indictment,
because by the act he cannot move in arrest of
judgment. This seems a strong implication
that the parliament intended he must hare some
time or other, but before evidence given, to
offer his exceptions. I say this only to those
particular things that are mentioned in the act,
mis-writing, mis snelling, false or improper
Latin ; as to these four particular things which
the party is barred from moving in arrest of
judgment, I cannot satisfy myself but that he
■hoald have one time or another to take thu
advaatago before tho c? idence giTOOi mud thera-
8
Trial ofAmirose Rookwoodf
fore I think he should haver it now : It ia
it is altogether irregular, the jury being ■
and it ought to have boen done before ;
hope if it bo admitted now, it u ill be witi
observation, that nobody wiiKever offer a.
time to come. An tbia case is before u
the act of parliament, which perhaps ma
led the counsel into that mistake, that it
be any time before evidence given, ■
they know the proper time, and the ■
method in other cases ; yet I doubt it
to put such a construction upon this acfe
sudden, ^uite to debar the prisoner of M
nefit of his exceptions to the indictmeoi.
Just. Powell. I have already dedaB
opinion, that the prisoner has had bis
time for making his exceptions, but
lapsed that time ; but 1 am not mfnm
motion iu a case of life, upon ao indiotnr
so great a crime as treason is ; and wb4
oonitequence is so great, if it may <wdsxs
the rules of law, and it be the sense^
court, and the king's counsel conaaat
them be heani, I submit to it, nay I
second or third that motion that they m
heard.
Just. Eyres, Truly I am of the warn
nion, 1 think we ought not to alter the ti
course of law by words of implication, b
any further than the act of parlianaent doc
press. The act appoints that a copy of d
dictment should be delivered to the prison
many days before, to enable him to mtl
exceptions, and therefore deprives him i
benefit of those exceptions af\er convid
arrest of judgment. 1 see no words in tl
of parliament that do alter the coarse of
ceedings as to this matter, from what it i
all civil and criminal causes before ; p
must take their advantage of excepting ii
proper time, but when it comes to issiM
next thing to be done is the trial ; and ti
must needs say the counsel are to blame
knew this so very well, that it' they bav<
advantage of excepting, they did not tak
advantage sooner, it is their fault ; but i
it is so, I am of opinion not to foreclose tfa
soner, as the case stands. I would be 1
of life, but at the same time I declare m;
nion upon this act of parliament as the r
my brothers have done, to prevent the obj
for the time to come ; yet seeing there i
misfortuue, and there would be auardshif
the prisoner by the default and neglect
counsel in the case of a man's life, I wo<
so tender as to indulge them to make the
jections now.
Mr. Baron Powyt. I am of the same •;
the prisoner has lapsed his time, for 1 1
this clause of this act of parliament haa.D
tered the common course of proceedings j
I take it, it signifies very little in this ca»
certainly it was intended to disable the pri
and not enable him at all ; and theielb
the case is, I think it very irregular an
practic^le to introduce so great a noTol
to admit the motion forqaashing thai
in] Jbr High Treason*
■«i,«bnithejiii]r k twoni, and when the
Ad iitke ooljr angle pomt to be detemiiaed,
iiri trciT tUnpebe ooj^ in legal course to
raatbm or after, but for us to contbund
MM, «• lime for pleading, another time for
lriil,a<iMlber for arrett of judgment, all at
eaee, arftihtTe a jury attending merely to
hnr cMMd tt the bar moot points of law,
«hiih iri[k be determined either before or
rfbr Attml, iiw very irregular, that it really
jgaihuM Mtbing but confusion, which courUi
tfjriiBeNgluto avoid aboTe all things, and
e^kliheep to the proper seasons that the
kvibai. Therefore, truly, I think in strict-
Mitf hv we oi^bt not to allow it ; but it be-
i^iiiCMof life, and it being a new case
9im I Mw Id of parliament, if the kind's
otmI llub fit to consent, I shall be for it ;
Vh^ I tkmk io strictness of law we cannot
iU,Ga. My lord, I am Tery unwilling to
^Ae pnNMf any advantage that he might
fcwirity thiv act of parliament, though his
•MiHafcilipt the proper time; if sir Bar-
Mkv Shower will say bis exceptions are
H Mf sf the four particular heads mentioned
■*■ Awe of the act of parliament, for we
■■oifiDctheni to that, then we do consent
Atf he Aoold make them now.
^C/. Truly, Mr. Attorney, if you do
^MM that they take their exceptions now,
na^csonler of it whether it can be ; hut I
**^*g fco* we could admit them to that li-
[i****' ^''^ ^^ *^®™ ^ •"y i\img ma-
JiWy Diy nMve it in arrest oV judgment.
,Jf^^^, And I believe tliey won't say
» ^jWiuuj are ip slight, as to be only
■^■fcrm ; they say they are substantial,
"**iyeor lordship will hear them in a
^^fiwfr. I do hot know whether I am
**Miiithelaw, I am sure you are mis-
fen ■ ike indictment.
_f ^'- J- H ell, do you eonsent to let them
Hitfcdroijections, as to those four heads in
■iflefjiafliameijl?
da. GfR. ^'es, mjr lonl ; if it be any niat-
kifrjbstaoce, that is out of the case at pre-
^ ^ the provision of the act of parlianicut
^*!y ^ mere matter of form, and I should
**i^ uowilling-in auy point that is material,
^■■k a prtfoedeot iu such a case as this.
^C/. 1 confess if you bad consented far-
"^iHoooiknow bow we should hare ad-
I^C. J. Trek^. I tell vou how I thought it
Wtbednoe ; you might have committed an
*|khniy, for ii>liich in a case of life, and
2*'Mw law, i believe aud hope we should
"•k«« forgiven.
^C J. Well, for my |iart I will not com-
''"■rimgubuity upon any account whatso-
^1 1 cannot see how by law thev can take
ygyionsto the indirtment ; Mr. Attorney
"Jl'BKnmli and '^' h« <K^* I ^ink it could
rH nleasbe did also csonaent to discharge
*!J*7i bat I ne they will Dot ofitr any ob-
VOLXIIL
A. D. 1696. [178
jections according to your consent, Mr. Attor-
ney, and therefore pray go on to open the evi-
dence.
Att. Gen. May it please your lonlship, and
vou gentlemen ot the jury, the prisoner at the
bar. Ambrose Rookwood, stands indicted for
liigh»treason,yin compassing and ima(riningthe
death of his majesty. Gentlemen, the overt-
acts that are laid in the indictment to prove this
treason, are ; that he, ton^cther with divera
others, had frequent meetings and consultations
in order to assassinating his majesty's royal
person, and did provide horses and arms for
that purpose.
Gentlemen, the evidence that you will hear,
to prove these facts that are thus laid, will be
of this nature ; you will hear by the witness,
that there has been for some years a design
carried on to murder the king's person ; that
bhis was discoursed of, nnd several debates and
consultations were had about it the last year,
some thne before the king went to FlanOera ;
there was several meetings, where were sir
William Parkyns, captain Porter, and Chjir-
nock that was executed, and several others,
and there they did consider in what way to
take off tlie king at that time ; and you will
hear they did expect a commission to authorize
it from the late kin^ James ; but then the com-
mission did not come, they had not any such
at that time ; but they did tlunk dt to not it in
execution without any such order and autho-
rity, and therefore they endeavoured to have
got a vessel to have carried them off afUr they
had executed this bloody conspiracy ; hut it
happened his majesty went to Flanders sooner
than they thought, and they could not provide
themselves of a security fbr*n retreat, aud so at
that time the design was laid aside.
Hut, gv-ntleinen, you will hear this conspi-
racy was renewed, a*nd Ki:t on loot this %vinter ;
and in order to the accouiplishmcnt of it you
I will hear, that almut Christmas la^t there wertt
several persons sent from France hy the late
king James, on purpose to put this horrible
desicfn in execution. Sir George Harcley was
to be at the head of it ; he was a lieutenant in
one of the late king Jauies's troops of guards
in France, he wos sent over with a ci>mmission,
and Mr. Hmiktvond, tlip prisoner at the bar,
was a brigadier in the guards there ; these
came over, and several oilier troopers of the
late king James's guartl)«, by two or three at a
time, that they mii^ht iiol lie observed; parti-
cularly you will hear, that when sir George
liarcley was roine over, s<*vcral troopers were
sent hy king James hini*^elf to come to him at
St. Gernmins : and there he told them he had a
piece of service for ihcni to do in Kusrland, and
that they should obser\e sir George llarcley'a
orders and directions. !\|ore particularly there
was one Harn« aud Hiire, two troupers in the
guards, were sent lor by the late king Jamea
into the late queen's bed-chamber at St. Ger-
mains, where colonel Parker was present;
they were told by the late king, he was sen^
sible they had lervti) hiin t'aithtnlly, and he
1T9J
8 lAlLLIAM lU.
Trial ^Ambnte Ronkxaai,
[M
woold advizioe tbeni, aod he had now a pieee
of fervioe for them to do, which woolJ enable
him to do h. He told them they must go
orer intu Engiaod, and be sore to obej sir
Geor^ Barclev's directions ; and the¥ were
ordered tu enjearour to find out sir George
Barcley when they came into England ; and
were told by him, that they would meet wa
Geor{;e Barcley twice a week in Covent-
garden- square, m the ercnine. and the token
by which they should know him was, he
w'ould wear a 'white handkerchief out of his
pocket; this they were toM by the late king,
when h^ sent them upon this errand. Cokmel
Parker wai* by at the same time, and beioff
there, be was' ordered to go to Mr. Carol,
secretary to the late queen, who had order to
famish them with monev to bear the charges
of their j«fiimey into England ; and if they
were detained by contrar}- winds, thev bad
letters of recomin»riidaiion'to Monsi<nir Lsioar
the French king*!-: president at Calais, to
furnish them with money to bear their charges
orer into England ; and aocordinsfly they went :
bat being detained at C&lai.^ fur w'ant oV wiuil,
they were fumishe-d Hy the French president :
ancl by the beginning of February tliey came
over, '
But I omitted one tiling, trt'ntlemen: Be-
fore they came over, the late king when they
were wit'h him took a list nut of his ptx;ket of
names, and told these two. Harris nnd Hare,
what names they should go by in England ;
Harris was to go by the name of Jcckins. and
Hare by the uame uf (jiiiny ; and accordingiy
the%' came over in a boat, and landed in Kent ;
and when they came lotuwn. they endraTnuml
to find out sir Gcurge Barciev : The first time
I thiok thev did not tind him ; hut tLe sciond
time tlipy i\A find him ; an'1 he «a>uted them,
and told them he was g)ad tri S4:e them come
over, and he would fui'Dt^h them wi:h money ;
and he sent major ilnlnu-s tu tl.nii ; aud ac-
cording he d:J come , and gitc tiiriii subsis-
tence-money.
Now, geiitlemcn, ynu will hear that Mr
George Barcley being cuiue uvLt with these
troopers, and many others, to the number of
sixteen, that at several times were sent upon
this conspiracy ; I say. after they were come.
sir Geursfe Barcley had frequent meetings and
oonsuluuons with several other persons that
were to be engaged in the same design ; and
they met at several places, sometimes at cap-
tain Forter's, sometimes at the Nag*s-head in
Covent- garden, at anothir time at ibc: Sun
tavern in the Strand ; and \ ou w ill find by
the evidence, that the prisoner at the bar, Mr.
Hook wood, was present at most of those meet-
ings ; and there they did consult of the best
ways and methods for puuing this conspiracy
in execution; sometimes they thought of doing
it by an ambush laid on the other side of the
water, by persons ou foot, io a little wood thoe
Dcar RicbnMNid, whtfe the king was to pan
goards. This wi
another proposal to do it'eoAiindetheivale
and therefore to settle the matter ooeaft
ooospiratora. King, waa aentto view thegrM
oo the other side af the water; aod be i
gkKy that be had feand a very proper plai
and tbought il a Tcrr ooDTcnient lacikod ; I
vet they ware nat'aU satisfied ; and at t
SagVbead-tafcni in Caveot-gardca thcji
debate the matter again, aad it was WDlfed
have the gnmnd Tiewed again; Hid Fort
and Kjugfatlcy, aod King thai was eaacHh
went to vievrthe ground od both adea t
water, to see which was the most eonvnii
place ; this was about the 12th of Fetal
they did take an account of the most eoM
nient pbees on either side ; and when thej I
ilone it, they came back in the erening to fi
an account what they had done, to aaiv
others of the conspirators who met far tl
purpose; and I think the priaoncr atlbab
3Ir. Rook wood, was present there at thia dm
ing ; and you will hear, the place agreed ay
was the lane that l^«ds from Tamham^giiM
Brentfurd ; that they thought the moal «
venient ptace, becan^ there were several ii
iu aad about Tumham-grreo and Brealii
where they might place their men by twa
three in an inn, that they might not be In
to obf ervation : This was the place tbMH
appro\'ed of.
Then next, the manner of doing it waitB
considered and adjusted, and that wai ta
that the whole number should be divided
three parties ; one psny to be commaadn
sir Gf o*^e Bardev to attack the coach aaft
the king and all tliat were in it, while aH
same time the two other parties, to be ^
manded by captain Porter, and Mr. Rook*-
the prisoner at the bar, were to set
guards ; and ih*; time agreed upon to _
execution was the 15ih of February oa
day. that being the usual day the* king
to Richmond a-hunt:n?; and you wiU
that on Saturday morning they met in si
parties, not all together, hot under the
heads nf the parties, in order to be
the kio^ had gone out that morning, to
assassinated him.
Gentlemen, I say, \ou will hear of e^
meetings that d^ty ;' tliere was one meets J
>lr. C'haruock*s, where were present
Purter. sir William Parky ns, and several ocJ
and another meeting vou will hear of, w^
the jirisorier at the fiar was present, ^
lodgings of oue i'uuuter. another of
James*s friends, that came over for thi^
pose ; and there was sir George Barcley' v
there was the prisoner at the bar ; and ^
that were to be under sir Geoige's ooKaH
met that Saturday moming, in order to ^
ready, in case tlie king liad gone abiug*
have attacked him : you will 'find by tla«
dcnoe, that the prisoner was there; aadfY*
that was one of the troopers sent over ^
Fianoc, was tent for, and came in and i^
thaabagicathany; for Harrii was ii0^
fir High Treason*
\ Willi ibe immediate
^1^ die king ; but (inding
be ftsked tbem what
ftlicy tubl Uiiii tbev vere
Bdiaidv upon ihe dvsigfn,
I asked wbal it was ; mid
tliey were to go to nitack
_ i to awMstuate hiui ; anil
prisoner nl the bair told hitit| it'
> Coutiier, tie sbiiuhl bairc par-
L 111 *l ructions from bim what
Harris wertt to Cuiinter ;
burse, and Hare's borse
were; mid Ibeir borsca
ID Sofheraet- bouse, by
lile tbere» recoromen*ted by
of my lanl Fevcrflhaiii'a ser-
to tuLe c^re of tb^iti, and of
re that were placed tbere;
consul ratort bon«8 by tbe
kof Mr.Lewta were lodgred in
l*liouae, and looked ntler
ain's men; and tbithfr
Lliingnte were directed by
te fo f«T tbeir horset.
I kappened by ¥ei-y gtMHl providence}
I BAJifvty did not c^o abroad that day ;
B of tbe onlerly men ibat lodgefl
togi\e ititelligerice, came iVom
tbetn that tbe king- did
uiiig, M> tbere was liotbint;
Sftrria %vai told that be abould
r »l thai time, and take it away ;
time, till they were to go
I they were to ride out upon
' bad 0]iporturrity« to make
"viee ; or else it would be tboug-lit
t ii\ at tbe time of the atiui^k,
up in gooit time aud order
if and il Hinitd be ttioii^bt
rin ttie rider; and accord iu^jy
laootber of those cnnipiraturii,
rris ajid Hare to ^merset- house
boraes, and tbey carried
( m 8ubo ; but for several jii|^bt«i
I kept at Horoertiet'houae.
^ fiad, fcntlemen, that Mr. Rook-
It priiuaf rat tlie bar, was concern ei I in
iMiitultaiioiui and meeting, in m»(k-
pnooQi for Ibe a^aaasination ^ tbey
Im 1 Mid, to do it on the ] 5tb of Fe-
t ^ that not taking^ effect at that dav%
UhlNd the Haturday following, Mr,
^^aii^otly 10 tbe company of Mr.
[^K)Mr. Lowirk,and otben«, inhere
t^Roui^c of Ibis ttjiflafliiinatioii, and
Itjltrik It 31 vrty barbarous thing ; but
« they would do it, ^br
y «ir f itorge Bftrcjey :
apr»-M«iy declared by Lowick and
ftl they bad diret^tions to obey
1 wbat be would hare them to
i: tbty tnubt and would obey
rcaidution, even u|miii
I of so bloody and
r, Gentlemtiif by tbe
A* D. 1696.
[I8S
evidence, that the next Saturday, being the
two-and twentieth of February, they rcsolf ed
to put it in exeeution again ; and accordingly
tbere was a meeting on tbe Friday before at
tbe Sun tavern, where were present sir George
Rarcley, JMr. Porter, ami others ; and there
Ibey did re^iobe upon it, though they had at
first some apprehension tbe tbin^* vVas dis*
covered ; but thry w^re soon satisfiud there
wiui uo fiiicb tbiug, because, they laid amoug*'
tbctuselves, thai if it had heeu so^ ibey should
have been taken up, and not have been per-
mitted to meet there : therefore they resolved
tbe next day to put it in execution ; and ac*
cordiogly they met at several places, and got
ready in the mornings in case the king had
^oue abroad. The prisoner met that morning
at Portcr'jj lodging, with several other trooperi,
to make ready tor the enlerprijsc : and there
tbe prisoner at tbe bar did, at that time, give a
list of ibe names ibat be was to command;
for he was to have one party of those that were
to attack the guards, ot whom Harris was one
and Hare wan another, and Richardi^on waa
another, and Blackburne was another^ and his
own name was chief; and be ordered Harris
to go and see to get them ready, for I hey must
go out that morning : accordingly Harris did go
and got them ready, and came back and gave
an account of it. His majealy did not g* abroad
that day as it happened very fortunately, by
reason of the bappy discovery ; so that newi
being brcnight back again, ihougb they had
made all things ready, those preparations were
put of^', and ihey did nothing that day ; and
quickly after the discovery was fully made, and
made public by tbe apprehension of the oon^
spirators*
Gentlemen, you will have this matter fully
proved to you by several witnesses, that I
think there can be no room to douhi the truth
of it thsit there was such a conspiracy, and
that the pri«;oner was as highly concerned in it
as those who sufPered the just punishment of
the law. We will call our witnesses to prove
this ; and 1 beliiive they will lie tibte to give yoii
an account <d' the whole affair luHter and mora
fully than 1 ckin do^ or can prttend to open it.
SoL GctK Call Mr. Harris and Mr. Porter.
Sir Ji, Sii(*ucr, Ue 0[>|K)se the swearing Mr.
Porter: I must beg the favour of the court to
hear us in it ; if my instructions be true, we in-
sist tipon it, that he is uol capable of being A
witness ; lie standi convicted of telony ; here we
have tbe record, and we desire it may tie readi
Copt. Porter. I know nothing of the niBtter^
that there is any such thing nUindingoul against
me.
H\T B. ShimeK Then sure we are mistaken
in the man. Pray let us heur it read.
C/. o/Ar. (Reads the Record.) This i« an
indictment of murder ugain^t George Porter,
for the killing of sir Jamts Hackel, knigbt.
Att. Gen. Do you know any tliiiig oflbiS|
Mr. Porter ?
Forter. I came off with tnanBlaughter» and
pleaded the king's pardon lo court.
8 WILLIAM III.
Gen, Pray read what was done
Here's the jury's verdict
Trial ofAmhroie Rookwoodt
V
upon it.
CL of the Crown,
" Uiiod praedictus Georgitis Porter est culpabilis
* de felooica iDterfectione pnedicti Jacobi
* Hacket, et bod culp.' as to ttie murder. Here
is a * Curia advisare yult,* aud I suppose there
was a pardon afterwards.
Just. FouelL Was he not burnt it the
band.
Porter. No ; I pleaded tlie king's pardon.
L. C. J. And there are iteveral acts of par-
don since.
Mr. Cowper. See the time when the indict-
ment was.
CL of Ar, It is the 8th of December, in the
S6tli year of king Charles the Sud.
Sir JB. Shower, We agree that he did plead
the king's pardon; ami then the case is no
more than this, a man is convicted of man-
slaughter, and the king pardons him, he still
remains unqualified to ue a witness ; we say,
this has been the case that has been much de-
bated in Westminster-Iiall, and upon debate it
has been resolved.
Just. Povell. It has been so, but always
against you.
Sir B, Shower, It was in the case of my lord
Castlemaine * at this bar ; one of my lords the
Judges went to the court of Common-Pleas to
ask their opinion, and these ^ases were put f
In case a man be outlaweil of felony and par-
doned ; in case a man be c(tnvicted ot felony and
had the benefit of his clergy ; and in case a
roan was convicted and not attainted, i)ut par-
doned upon the second case ; they were of opi-
nion, that the receiving the punishmeiit of
burning in the hand had purged the very guilt,
and did set liini upright by the statute of the
loth of queen EiizatMSth, thoy thought it did
operate to that pur|K)sr ; but in the case of a
pardon of a man attainted or convicted, it was
agreed he was not qualilicd to be a witnc&s ; and
Dangerfield, against whom the objection was
made, bnng burnt in the hand, was received to
be a witness; and it was only made use of
against him to take off his credit. I'be record
ot that case is in iliis court, and I looked upon
the print of Uic trinl this d:iy. Ue say, that
there is a case in 1 RrownloM- 47. a nrian at-
tainted of felon V cannot he of an inquest, though
pardoned ; and we think, he that cannot be a
juiyinan, sure caur.ot be a witness ; there is the
same exception to his being u witness as there is
in the case of :i jur^ man ; tor the oii<> ought to
appear as free, aud sluad as cltur and unsus-
pected, fn respect of his probity and verity, as
the other, as th** oiic is sworn to try and deter-
mine upon OhXli, so the other is sworn, and his
oath is to sway jti.d dclcnuinc the jury, and in
consequence it is atl one ; and upon these rea-
sons we hopr.' he is not a good witness.
X. C. J. Where is that case in Brownlow ?
Sir JB. SJioictr, It is i Bnmnlow 47. and
* See his Case in this Collection, vol
1867. t i^ vol. 7, p. 1098.
7,
then there is 11 H. i, 41. 3 Bubt 1S4. tl
mv lord Cook says, if a man be convicte
felony, and pankmed, he cannot be a iuryn
for though the punishment is pardoned,
guilt remains, so that he is not * proba
* legalis Homo ;' and every particular pe
has an interest in it, that they have free
clear persons to be jurymen and witnesses.
Mr. Fhipps, My lord, that is the distin
we go upon, which was taken in Danger^
case, U|)on tlie trial of my lord Castlema
where the whole court were of opinion, tb
Kardon from the king ouly* would not n
im a good witness ; but if ne were burnt in
hand, that by the statute of decimo octtm
zahetha, amounted to a statute pardon, am
him right to all intents and purposes : and '
thev did take notice of that book that sic
thoiomew Shower cited of 11 of Hen. A
a man attainted could not be a jurjr
though pardoned by tbe king : it was o%
be might be a witness ; but Mr. Justices*
said, it was the same reason if he be
for a juryman, he is not fit for a wituetaa
ought to be both * probi et legales Uc:»
thus the case stood there. And thsjifc
book of Bulstrode is the same ; it waaa
case of a prohibition for a Modus De^^
where the suggestion is to be provecS
witnesses, it Was objected he had not j^i
by two witnesses, because they were I
tainted of felony, and thontrh they «i^^
doned, yet that did not make them gf^v
nesses in the opinion of the court.
L. C. J. This is quite another case,
not come up to your point ; here is no ai^
and here is pardon upon pardon, by act ^
liament.
Mr. Phipps, As to that, we think the 0
luent pardon is out ot the case ; lor if iim
don from the king be a good panlon, XM
no guilt for the act of pardon to work upC^
Sir B. Shower. My lord, this we thiols
a g(K>d distinction as to that matter, a ma i
is actually pardoned tlie punishment bj
king's pardon, and afterwards an act of p»
comes and pardons all offences, that w^
does nothing, for he is not a subject of ptf
for he was discharged of his puuishmeut Ir
Alt. Gen. Sure these gentlemen are m
earnest when they make this objection.
Sir B. Shower, When the king has ones
doned him, he is not an offender witliii
meaning of the act of parliuiitenl, and t.
fore the act works nothing as to him, &
he stands as much disabled from being ■
ness, as lie was before.
3 usi. Pou'tll. In the case of CutingU
llobbard, there it is baid the pardon takes
*• tani Hfatum quam Pu:nam, &c.' An e
being brought for calling a ntan thief, ^i b<
been indicted for felony, and convictedi
pardoned, the court adjudged, that heoiigl
to be called so ; tor he was no thief, f»
pardon had u-ashe<l him entirely clean, ai
was discharged both of tbe guilt and pi2
ment) and ail the cooiequences ol it.
Jwt High Treamn.
I ibtt bav# be«o put are
I •! ill in Ibtt matter ; for where
^% fooiriction of mnnslnughter, and the
k 9«hloiifil, we think that pardon of the
^H a wiy oi* ditdi^rge at much ta
Aiu^ in tH« hand, I tnke it, it is the same
' l4i^ idmit, tlml will dlschari^e liim to
nil and Biirpo$f#« tind k» we think does
'HRwiiiallv; * t his clcr^-y, and
l>y way ot statute
\ -nian, I take it
.ise ; but even in
tto^it, I ,ir ^ I, ,h.*i «he purty coii-
*^ ifWr I uti prdooe<l him, 19
™Wfriinii ,. ^ jury ; bat sapposing"
>^taWiio, yctltierc are many caies u herein
i • ttifl mi V i; I :i V it II tjs , t h a 1 c*n not he a j 11 ry -
■•* ic credit «»t' such n ^vimess
I ii^« m it i« no objection agfainst
iii ba^ t 1p|JiI \i itncfis ; and it is a very
M^ iipiueni to m«f, that because he was
h fvMb tb kin^.iftliat shoutd hedetiden^
IikiliOTforr th# Hfi of panlon sihoutd have no
^- " r i» to &ay, that the king^'s
P^ 10 have nothing left fur the
p^Mn^or.ii.n to work upon, and certainly
■VilnD 10 nght» thai 10 all iulenu and pur-
f^kia it {rood u witnifiis as erer tie was ;
•i I •Tlhiii^ remained to Ijc done, the act of
pv^^^i hj« (lone itf and supplied the de*
m\ Ia Ifhink the king's pardon is sutlicicnt.
J^Cn*. My InnI, I supjwae, they do not
«tf<piit, js ifjiiikiniif there is any great
P^ a ii. l«iji orI V tor uhjecttoii fake ; but
2. Jj^*^** 001 Hi lb standing this objection
^ I, Ihey take this exception
1^/ L, for ihey bpeakto hii cre-
LCJ, Hf^* they except to his being a
*i (Jn, W'lo, your lordfUiii retnerobers a
■■te m before your loroahip not long
jj'^^^o Kislcr tcrni laai, when one wat
" " I bar for trenaoti, and Aaron Smith
a witness^ and the prisoner
li^am^' *'if»' •^'= f^" "/>od witness.
f btb*i| iii>* , and your
Jllje eon. . , .■ , L at the uct of
^■^Wreniiire hiai to all intents and pur-
tCnyin. lu the caap of the earl of Cai-
^^ii bub Ibe courts of Kinfj^'V bench and
*■■■• Plwui held Dangertield a legal wit-
•^ Ifcwfh biinifil 111 the liantl for felony,
■■•»i»dic opinion of Roll« : in Siiles re-
■•J((8, htnf thfti hatli been hununl in the
^ ^ Wooy, may tiiHwitlist:indlng he a
^^' SketPtr^ My lord; in answer to that
^^ wii pyt, titat after the king*s psirdon
■Mb ttoiy 1,^ , rlj^t was an
2*ii*» my biri - .... i cane, that
2^^ ** ffooAt lutd our notion that we
'JJJJfcr,!* good loo; he cannot be im-
'^'^^lafifuik iiDpoted to btmf when
A. D. 1696. [180
once tKe king has forgiven him, and yet that
may not restore him to U\^ entire credit, t» wa9
my lord chief justice ^»croggs' diMtnctiun iit
the cast; of Dan^erfield ; and as to the i^aeie of
AaroD 8milh, that was very di5*ereiil : the
reason in that CAse was, because the crime for
which Mr. Htnith waf; indicted, did not im-
port any such aciindalous oHence lor which his
ci^dit could be impeached.
L. C. J. No, no, we did out meddle with
that, wc went upon the pardon.
Sir B. Shower, But in that case« they did oot
insist U|»on it that he hud a pardon antecedent
to the Act of Pardon^ so that he was rnhjicium
capas^ tor the act to work upon, he was an of-
fender that needed a panlon ; wlipreas Mr, Por*
ter beiug pardoneil belbre, could not be an of*
fender neediiig a jiardon, and consequently not
withm the &^t words of the Act of Indemnily,
because he was pardoned by the ktog before;
but he was noi by that pardon, say we, re-
stored to his credit to make him a good wit-
ness« and the act of parliament did not affect
him, he being not su^^eci urn mAterUij as not
being an offender.
Mr. Phippt, As to Mr. Solicitor's case of
Aaron Smith, we agree the act of parliament
did restore him, because he ncrer ^ha par-
doned before by the king* so there remaineil an
oifence for the piirtiainent pardon Ut work upon.
L. C, J. Do you agree that, then you may
agree the otlier ; for the act of parliament par-
dons uoue but those that the king can [mrdoti
generally.
Mr- Pltipps, It is true^ my lord ; but we
say that an act of parliament pardon removes
tliose disabilities which the king's [lardon does
not ; for ef ery one is in law n party ti> an act
of j>iirl lament, and thereti'te un person shall
be permitted to a I ledge in diHahihty uf uoolher,
any crime which he hinisielf haih pardoned,
for that IK to aver against his own act ; but it
Is otherwifle in the case of ihc king's pardon.
L, C. J. Why the very par liniment pardon
comes from the king ; the king has a full
power of pardoning, and where lie does pardon
under tlie great seal, it has the full cfiVii i»f
the parliament pardon. A pardon, hetore at-
j tainder, prevents all corruplinn of blnod, so
that though a man forfeits his goods by cnn-
viciioo, yet alter a pardon he is cap.djtk^ of
having new goodn, and shall h<dd them v^iih*
out any forfeiliire whatsoever ; (or the paidon
restores hira to his lormer capacity « and pr^
vents any further forfeiture. ludeed, if lie
had been attainted, wh^-rcby h\s hUyiM\ ita^ 1 r^*
ruptetl, no pnrdon, whether it were by the kui^
or by the parliariieni, cimld purge' his Uund
without reversal of the attainder, by vtrit of
error, or act of pailiament, or «-\presu word«« 1 t
the act to restore blood; but either p.itd.i.,
makes him a new creature, giieshiiii kw^ i .
pacity, and makes hi 111 to all intvut<t »nd pur-
poses, frou» the time of the [lardon, tr> be ♦ pi*o.
* bus et legalia homn,* and a good iutne»fc.
Indeed this crime might be objected against
his credit ; but il ii not to be urged agiuusi
I
I
I
S WILLIAM ilL
Ihe sufficiency of hi^ evidenc^^ that is, his be-
ing a witness.^
Att, Gen. My lord, we tlcsire he may be
sworo* (Which was rioue.)
SoL Gen, Now, Mr. Porter, do you give my
lord and ibe jury an account what you know
of ihb intended assays inatioo^ how it came to
your knowledge, a ud what share the prisoner at
the bar had in it.
Forter. My lord, the first account that I had
of this assussuiation was tVom Mr, CharDock^
who brought to nie sir George Bare Icy and
major Holmes to my lodgfing in Norfolk. street,
where I waa sick of the g-out. Sir George
Barcley did not then parlicularly acimaint me
with the lusine^, hut said, he wouUi leave it to
Mr. Charoock to telJ me what it was.
L, C. J, \S lio told you 80 r
_ J*orier, Sir George Barcley ; and after that
ire had several meetings, at which the |»risoner
at the bar wm present, particularly at the
Olohe-tavern in llatton-Ganli'D, where it was
consulted of the best ways and means to as-
ias&inate the kiu]^^ as he cauie from Richmond :
s^')me were of opinion that it was best to be
done on the other :^dc of the walar ; olhei h
were of opinion that n sliouhl be done on this
side, by a party of mc^n on horsebiicit: upon
this dilTereuce of opminn, there were persorjs
apiiointed to go and view both places; I was
appointed lor one to go with captain KuighlleVi
and Mr, King went along with me, and we did
view tlie ground on both sides, and when we
came back, we gave an account to sir George
Barcley, and those that sent ua ; and upon our
report, sir George Bari^ley 's mind was chancned,
who was for the other side of the water before.
And he agreed to do k in the lane that leads
from Turn bam- Green to Brentford, After-
wards there was a meeting at the Globe-Ta-
vern in Hatton- Garden, and there it was agreed
thai the king should bf3 attacked on S^Lturd ny
the 151 h of February* by sir George Barcley
and hJH party ; and Mr* Rook wood, the pri-
soner ut the bjir, waii* to t'c»iamand a party of
men that came over from Prance, who were to
as^nli the guanlii on one sitk; and I and Mr,
Charnock were to set upon the guards on the
other side. Sir George Barcley, with four
men out of each psrtVt was to attack the king
in his coach, and to kill him and all that were
there in it.
Z. C. J, Who were at tliat meeting f
1*0 tier. There were sir G. Barcley, capt*
Chai-nock, sir Wm. Farkyns, myselt, major
Holmesj capt. Rocik\%ood, nod capt* King.
* As to ilie operntitm of the King's pardon in
giving credit, see Mr. Hargrave's very learn-
ed Discourse on the eflect of the King's Par-
doii of Perjury, as referred to at vol, 7, pp. 1032.
1090. 8t4f, too, Peake*s Law of Evidence, ch.
5, 8. 2, art. Witnesses restored to CrCiStt by
Pardon ; and in this ( -olleclion I he Cases of
Heading, vol 7, p. 295, of Collier, vol, 7, p.
1043 ; of lord Castkmaine^ vol. 7, p. 1067,
and <)f Crosby^ vol. 12, p. 1291,
■ andiifC
Trial of Ambrose Mookwaod^
i, C. X Where was thisP
Porter, At the Globc-Tavera in
Garden, upon Saturday morning the 16th,
having two orderly meu tliat lay at Kensi
to give intelligeuce, had notice brought us
that the king would go out; Durance,
was one of ihem, used tA» go every moi
court to get us what itjieihgence he coi
e;ir Geotg'e Barcley told me upon the
that he should give me an account a*
ever he coukl, the next ruorning; and
morning at my lodging in Little Hyder
in St. James*s, he came to me, and
the advance guards were gone out, and
king's kitchen was gone, and all was pi
for the king's going abroad, and tUeje wtot
great many noblemen and gentlemeu «*bi
back wiih bim> and therefore he thought
would be DO opportunity of eflectingtbe
8aid L that's no objection at all, nor i
son for putting it off, because when the
over, all the company goes away, and
comes only in his coach ^rtth tlie gua
said, he would give sir George Barcley
count of it, jiud he came back with sir "
Barcley and Mr. Hfjokwood to my
and upon repeating that objection, and
giving the sarue answer, it was agr«e«l
kittg had gone out that day to have
design in execution.
Alt. Gen, Was the priaouer ot tlie
at that time when that was agreed UfHUil
Porter. Yes, he was.
i. C. X Where do you say was
ing.*
Porter, At my lodging in Little Rid
L* C X Haxl you that discourse with
George Barcley in the presence of the
soner ?
Porttr. Yes; sir George said, he di
wc could not do it, becauie there would go
many with the king, but I objected against
that after the sport was over, all the eomi
went away, and the king came t>sck in
coach : then it was ai^recd to gu on ; thi
sir George Barcley, l>nrdnce, and the
at the bar, and myself in the room.
L. C. X This yoii say was Saturday tl
16lh, in the morning i*
Porter, Yes, my lord ; but I cannot say
saw the prisoner at the bar at any tneetii
af>cr that.
An. Gen, Pray, tell my lord and the j
what method ]^ou*were to take in putting
design in execution.
Porter. There were to be so many ho
armed and prepared for that purpose.
George Barcley told me^ we should be
40 or 45 horsemen, and they were to be dividi
into two |>anie$, and sir George Barcley *•
to have four meu out of each pariv, a'ltd
business was to attack the king, and all
were with him in the coach. Captain Roob
wood WAS to command those that were coi
out of France to serve under sir George Biri
cley, and captain Cliamock and I were to
mahd the other party, and both parties were
w
nfMin the guards at the same time that 91 r
Qtar^ Bifcrctcy attacks tl Uie kioij^s coach.
Ail* Crn. If the prisoner Ts^il! ask him any
liir i . Pray, captain Porter, wlicti
itrat meet nig' at tlie Glotie-Tavern ?
^rnHer^ If was otie day in the h i^«^k before
Skomtr, Was Mr, Rook wood, the pri-
t die bir, there that day?
r Ye«, he wiis.
SAtm^^r* How loo^ before the 15lh?
IWf«r. One day that week, boi I canuot tell
Sf E> S^iMPer, He says it was agrcf (I so^
amim I desire to know whal words Mr, Itook-
voad stlefeil at that time P
nrf«r. It was discoursed by every one
9om4, wbtHi wai the heuX vtay and methniL
Mr. Rook wood say, indef^d^ he he-
\ it a Tery desperate tiling, and he wa« not
wmj wilUn^ to engag:e iti it ; hut when nir
Itaipe Bareley told htm lie should command
In^pBtTt tie repliefi io French
£1 Gm What is the meatiing of that?
^^ter. Tbere is an end of it.
Ah. Gen. Vou say the prisoner was at your
M^iii^ Saturday the 15th, in the morniog^,
VImI diioatirfte bad you there f
Pcrtir, He waa theri? upon Saturday in the
|, the 15tti of Pebrnary, and Durence
I account titat the kiug-'s Hrst §;uards
««e ^w»c^ and the king's kiicUen was ^one
Miirt.aod it was expected tliat the king would
|0 ibMl eleven a clock ; bitt it was <^aid, that
ONffWefe a great uiany preparin^f lo gfo with
kiiin,iiiAtlierefore it would not be convenient
W4i»il^t day : Haid I, that is no objection
it ill, fMT the nubility and gentry g*o out of tiie
Mimnma as the sport is orer, and the king
wti m ^ with a few (leople lo Mr.
PttHichmondf and therefore it might he
ii««fl done at that time as any timet Du*
rucrtiiade that objection at fir^'t himself; and
«Wfi I uiede him that answer, he went to sir
^ I Barcley, am! he came hack with sir
ga Barcley, and the prisoner was tbere by
liktlletame time, and sir George Barcley madtf
I liw iame objection ; it was at my lodcring in
IliitJe Hyder- street, and when ! told them my
••an aj^aiDit the objection, as I had done
•lirr, they all n^^reed to do it that day.
Mr. Phipps. lit that second meeiinfj, did
I llr. limikwotjcl make any proposal there ?
I F$rl€r. I only say , he came with sir Georije
Bfenley, tnd w*bat*l heard; 1 tell you sir
Qmge Barcley made that objection, and I
I five il tbat answer.
Mr. Bhippt, But what did he nny?
h/tUr, J cannot say that I Jieartl Mr. Rook-
■Md w^f any thin£^ in particular ; hut tfaey all
fRed to do the thing that day.
^ B, Skomtr, You remember nothing that
PW-I^, Sir Oeof^e Barcley said» we will
f> ind prqure; uid be went away with
I
[190
81 r B. Shimfrr. Pray, when did sir Geor^
Barcley come into Etitjland ?
Porter, Truly J Hir, 1 don't know that ; the
tjrst lime that I saw him after he came, Mr.
Char nock broug-ht him to my lodging" tn Nor-
folk-street J but before that, Mr. Chumock told
me he was come into Eii£(land»
L, C, J. Hark you, Mr, Porter, when you
came back from viewingf the ground before tlie
Rrst Saturday, and you said you made your
report, and then it was a^eed that it should be
done at such a place ; do you say the prisioner
was there ?
Att. Gen, No, my lord, he does not say so.
Do you say Mr. Rook wood was there at that
time? — Porter, No, my lord, I do not say so.
Sir B. Shower, I am sure he did not say so
befoR* ; and besides, your lordship will observe
there ia no «iuch overt-act aa that laid in the
indictment atjainst ihe prisoner, that Mr, Porter
made his report upon the view i that only con-
cerns Mr. Knightley,
L. C. J. No, that is not an overt-act, I agree
it^ but I only ask the question, whether the
prisorKT wut there ?
L. C. J. Trehtf. If it were an overt- act laid
in the indict raeot, it would not aflfect the \in*
soner, because the viewing of the ground, and
making the report, is captuip Porter's act, and
il must be the consulting and debating after-
wards that must affect the prisoner, if he be
coDcemed.
Mr. Cofiyers, The meetings and consulta-
tions that are laid in the iudictoient are tho
overt-ociK.
SoL Gen, Well, if they have done with cap-
tain porter, we desire Jllr. George Harris may
be ftworn.
Sir M. Shmt'tr, My lord, we beg leave l<x
oppose Mr, Harris's being sworn ; here was a
proclamation that did take notice of this bar-
barous conspiracy to assassinate the king, and
ihe proclamation did signify, Thai the king
had received information of several persons
concerned in that conspiracy ; and for the
encourageiupnt of tJiking those so accused, he
did promise a tliousrand pounds reward for the
taking of any of the c^nspli-ators ; and in the
conclusion of the proclamation there b a
clause, ' That if any of the conspirators should
* discover or apprehend any of thi* other per-
*■ sons that were therein named, so as thai they
* should be brought to condign punishment,
* such conspirator so discovering should re-
* ceive a thousand pounds rewanf for any of
* the other persons apprehended, and his own
* pardon,' My lonl^ we have a witness here
ready to prove thai this was I^lr. Harris*©
case ; he was himself in the proclamation, he
did actually discover Mr; Rookwood, the pri*
soner ut the bar, and was instrumental in the
taking of him; and consequently U|?on this
clause of the proclamation, if lie he brought to
justice, then is Mr. Harris intitled to this
reward and his pardon ; and conse(}uently he
has such an interest and advantage to himself
as will prevent his being a witaofis. ll\sVt^
191]
a WILLIAM III,
I
iii(teri], ii'liere it U at the kitt^*s suit^ in ft ea-
ItiUl rase, it iit |tretty hard to say I bat a mao
I3« un iiiiervt<i ; liut we tbink, as this c^se is
circumstiMitiated ujioti ttiis |M'iicUiTiation, that
the same ohje^tiou lieit atj^aiiisl him tta wmild
4o if this were it ti%il cans** j if we shew how
lie is to have an advanliige hy the event of this
cause, then he is iml to be udmltied a witness.
L> C, X Did he appveheDd any btidy upon
the pru€ lam alio u ?
8ir B. Skoner. Yes ; he apprehended Mr.
Rookn ooil himself, or was the cause of tt, and
thereby is intitled to the reward aud bis
pardon.
Mr. Phippt, That upon which we f^und
our objection is tbe ditfercnl penning of the
pioclamution ; for if any one that is not a
conspirator do but ilbcovtr and apprehend any
of the persons nsined in the prndaniation, he
lA intitled to the thousand pounds; but the
conspirators them selves must go funher ; for
a bare discovtrj and apprehending any of their
ac4;omp1iie}i will not entitle tbt m to the reward
nteniioned in the proclamation, but they must
discov€'r and appretuMid their acuomphces so
as they be bronjfbt to justice, before they can
be eutitled to the reward ; And to be brought
to justice for any crime, is in common under*
ctandin^ to be brongfht to such puuishment aa
the I'*w inflicts for the offence. Now, Mr,
Hanriir^i case is this: He discovercti Mr.
Rooiwoody antl went with the gnartis to tfje
Compter and seized l^im : And if Mr. Hook-
wood iMJo't conTicted, Mr. Harris U not to
bave any thiu^ for his pains; but if he he con>
Tjcicd, Mr. Harris is in titled to the thousand
Dounds and biti jmidon. Aud therefore^ surely,
Mr Harris cannot be admitted nn evidence
ftguiDSt ^ir. Ltookwood, since lie is to receive
CO jfreai a benefit by his conviction. Upon an
iodirtmeiu for an usurious contract, the person
trhofie deed it is ciinnot he a witness, because it
is to avoid his own act: So in an indictment
for perjury, on the stat, 5 Eliz. the party in-
jured by the perjurv cannot be a witness, be-
came \ie is to have lialf the forfeitures.
Ait, Gen. I suppose ihey will make out
their objection before they expect an answer
from us,
Sir B, ShoTser. I hope your lordsliip will
not put us to prove a copy of the procUiniaiion
from the iurolment, but that we may have the
imme tiivonr as in the case ot the statute book,
that the print of it may be ftUowed for
evidence.
AtL Gen. My lnr<J, we witl not stand with
them for tljai, we know the^r are mistaken
ttuoughout, we consent the procianiatlon
should be read.
CL QjArr. reads :
• By the King a Proclamation,
* William J?,
* Whereas bis majesty hi8 received infor-
« mation upon oath, that the persons herein
* after named havCj with divers other wicked
« mad Inutoious penoaS| catered ioto « horrid
Trial ofAfnbrose EooJcmood^
' and detestable conspiracy to Msainnaie i
*• murder his majesty's sacred pert<Wi tor wfa
* caus»e several warrants for high treMoti f
* been issued out a^iost them, bttt ihey '
* wittulrti^vu themselves from their i
* plucf's of abode, aud are fled frtjm juitiq
^ His majesty has therefore thouj^ht fit, by
^ advice of his privy council, to issue bU i
* proclamution, and his raaiesty dotU
* command and require all his loving su'
' discover, take, and apprehend James i
*^ Berwick, sir George Bardey, major Lou
« George Porter, capl, 8tow, capt, Wi'"
■ capt. James Courtney, lieutenant Sfa
* Brice Blair, Dinanl,
* bers,- Boise, George Higgins^ ftndl
*■ two brotheri^, sons to sir Thomas
* Davis Cardell, — G«
• Cramburne, Keyes, !
* gross alias Pendergrass, •
* ^ Trevor, sir George Maxwell,
' Durance, a Fl em mi ng, Christopher Kniek
' lieutenant King, — Holmes, sir \\i"
* Parkvns, — ^-^ RcM^kwood, where
* may be found, and to carry them
* next justice of peace or chief ma
* who 19 hereby reouired to commit ^
* the next ^a<4, there to remain uoliU
* thence delivered by due course of law^
* his majesty doth hereby require the i
* tice, or other magistrate, imme<liately to{
* notice thereof to him or his privy
* And for the prevention of the goiag
* said persons, or of any other, into Ir
* other parts beyond the seas, his maje
* require and command all his office
*■ customs, and other hi« officers and i
' of and JR tlie respective courts and 1
* towns and places within his kingdom i
* land, dominion of Walts, and town of
* wick upon Tweed, that tbey and eve
' them, in their respective stations and pla
* be careful and dihgeni in the examinah
* all persons who shall pass or endcavoarJ
^ pass beyond the seas, and that tbey do^
* permit any person whatsoever to go latv V
* land, or other places beyond tbe i
^ out a pass under his majesty^s royal sign I
* Dual until further order. And if tbe^ '
« diL^corer the said persons above-naq
* any of them, then to cause them to hmi
* bended and secured, and to give
*■ aforesaid. Anil bis majesty does
' publish and declare to all pei-sons wbd
♦conceal the persons above-named, oraovj
* them*, or lie aiding and assisting in the c
*■ iug of them, or turthcriog their escap
* tbey shall be proceeded against, for so
* offence, with the utmost severity, ac
* to law. And Ibr the encourag'emeot of j
^ persons to be diligent and careful in
* vouring to discover and apprehend tbe
* persons, we do hereby further declare,
* whosoever shall discover and apprehend
*• persons above- named, or any of them,
■ shall bring them before some justice of pea
* or chief magititrate, as aibrcsaid, aball U)
4
19S]
J^ High Trautnu
• wd ttouK n • vemird the auni of one thoa-
• md pood ; which w4 eun of one thoatftiid
• MM, the Ms oommiMioiiers of his ma-
•jtf^'i liuiwiy era herebj reqiiirtd end di-
• mad 10 Mf aoooftltiigly . AikI if any of the
•faNHewve-BUiied shall discover and ap-
*fgkainj of their aecoinplires, so as they
•mj be braigk to justiee, his majesty doas
*mij Mve, that every person makinip
•Mh ^tcttfaj shall have his majesty's
^fmm pudoB for his offeoce, aad shall re-
* CM the reward of ooe thousand pound, to
■hnTcd in inch maDiier as afonsaid.
'wn at Mir court at Kensington, the 93d
*AvefFebni87, 1695-6, in the eighth year
■viwragB. God save rns. King.'
1k,Fhifp9, My k>rd, the different penning
tflbcdMniiiiot only in that proclamation,
hi it if dw language of every proclamation
ttiibat^eoat for the apprehending any of
■afSiiiiiialuii.
itti ues. Mj lord, all that we say in an-
Mlillija obtfction, is, That Mr. fiarris is
■tiBBd IB toit proclamation.
IC J. What say yoii to that, sir Bartho-
Imm^nmtf He ii not named in the pro-
*"*"■/ aad an if he hath discovered and
^pihaM the prisoner, he has earned his
■■ey,wWther he be convicted or not, beoause
■^■"iPi Dane is in the proclamation, tho'
liiiBML
Jk,Hifft. Then, my lord, with hnmble
^■Mi here is another proclamation where-
■^•■■•■ed; we desire that may be read.
fcLtto. Aod when it is read, it will be as
■*J*fW purpow as the other.
J^^yca. Let them read what they please,
MBhi^Bothing at all to it.
^kA Certainly, upon this proclamation
■■■■•ijection; for he is intitled to his
jiy iheadj, though iUwkwood be never
SkPkipi. But is he not by this proclamu-
ii^ wlirh mentions his accomplices, intitled
MAhpardQa? If bo, he swears to secure him-
I (I / By the apprehending and discover-
ktkg m BBtlcd to bia pardon.
Mr. Pkipft, But not without he be brought
kJHriee; that b to say, till he be convictert ;
inCvv be cannot be an evidence to convict
Ik
L C. J. That is, as lo any that are there
itoed, if any of them discover and apprehend
^ aaother, it mOst- be so as thnt they be
b^ lo juljce: hut if any person that is
■iMBed there does apprehend any that is,
ha iatitled lo the 1,000/. barely by the ap-
Ur.FkippM. Then there is another procla-
■laa where they are both named, as Mr.
MftwDcid tells me.
fc&SAsver. My lord, we will set this
Mlv right ; w« will show the other procla-
■NB, in whidi, if I am ri^tly informed, for
kMCBBt nad it, Mr. Hams is named.
Ju.Gtu. IfyMhBVtBotmd It, I would
VOL. XII.
A. D. 1696. [194
advise jrou not to trouble the court with it ; for
you Will find the latter part is restrained to
three or four particular persons, of which he
is none.
Rookwood. I am named in the proclamation.
Ait. Gen, Aye, but read tho latter part of it,
and you will find you are not named in the
clause that they referred to : yon need not read
the former part of the proclamuUun, wc a^ec
the prisoner is named there, but only look to-
wards the bottom, which is the clause that they
refer to.
C7. ofAr, (reads). « And we do hereby fur-
* ther declare,' &c.
Att. Gen. They have not considered the
proclamation, and therefore make an objection
of they do not know what.
Sir B, Shower, We ore in }?our lordship's
judgment.
L. C. J. For what? See if you can make
or state a case for otir judgment.
Sir B. Shaver. Mr. Rookwood is mentioned
in the first proclamation, and Harris is not:
but there are the word accomplices : he is like-
wise mentioned in the last proclamation, but
not in the last clause of it. 1 confess, if he
had, it had been plain it would have taken off
his testimony ; but now we must submit it to
yon, whether he is not an interested person^
and consequently no good witness.
L. C. J. Truly I £> not see any colour for
the objection, is he not as well intitled to hia
1,000/. though Mr. Rookwood hail never been
ti^'d, by the bare apprehemling of Mr. Rook-
wood, as if he was convicted ?
Sir B. Shottcr. No, my lord ; because the
I words are, so as he may l!e brought to justice.
L. C. J. That is not so, as to any person that
apprehends one mentioned in the proclamation,
if the person that apprehends be not mentioned
in it, and named himself ; if any one that is
not mentioned apprehend one that is mention-
ed, he is intitled, by the apprehension, to the
1,000/. If any one that is mentioned appre-
hand another, then he is to bring him to jus-
tice ; now Mr. Harris is not named in this pro-
clamation, and so as to the 1,000/. he stands in
the same condition as any other person that
discovered or apprehended one of the persons
there nnmed.
Sir B. Shtrtrer. But it seems he was one of
the conspirators, liecanse he is himself described
in another ])roclamation.*
Att. Gen. If it were so, it would not be ma-
terial, nor any manner of objection ; but as they
have made tfieir obji^ion upon ibese^ procla-
mations, we think there is nothin^j for us to
give an answer to.
Mr. Cow per. Nay, my loni, if it were so,
will sir Bnrtliolfimew Siiowrr say his client is
not broiitrht to justice unless he be cK»nvicted ?
I am sure the wonls * convicted' or * attainted,*
are not in the proclamation.
* As to the admittin*; the testimony of a
Particeps Criminis, see Howard v. Shipley,
4 East, 180 ; and see 4 East, ^^ 686.
O
195J S WILLIAM III,
i. C. X There is notliiug^ in it: yoti roust
twear Mr. Harris. [Which wa* done acconl-
SoL Gfti, Will you give an accounl to oiy
lord aud the jury, whut you ka<>w of this cun-
spiracy against tlie kii^s lite, from the <irfil
lime you were acqu&iiited with- it, aad what
liatKl the prisoner ut the bar bad ki it.
Att, Gen. Pray gire an account of ihe whole
things your coroing over, ami who sent you,
and u|Miu what errand, and the whole tlmt you
know of this conspiracy .
Cap«, /i»rn>. Upon I he 14»b uF January
last, the Fmich Sule, N.^i, I was at 8t. Ger-
irt:)Lns, whtrc I wa^i sent for by kiii<j Jarae«,
and was ordered to wait his dinner till it was
over, ayd accord iticrty 1 did wait till bis dinner
was oyer J and then i came in, and col. Parker
%vjts with hirn, and one Mr, Hare, who is also
moniioucd in the procbmatlim, was there also:
lite kill i*' told (lie he was sensible I had served
btni well, and now he had an opiTortuoity of
doiuif sonifthinj^ for me; htitold m* he would
;id tin; into Eo|^laud, where 1 should be aiib-
tr<!, and I was to follow the orders o\\ sir
Cieorg^e RttrrJf y ; and accoi ding"ly be ordere*!
toe ten kwidortsto be paid by Mr, Caroll, who
is secretary to the lute ([neen ^ and colonel
Parker wt;i)t aloiiLf uilh me, and Mr. Hare, to
Curoll, an<t told him be aime IVom the kin«;\
and wc hud the lewidi^rcs, Hud we nent to Ca
bus, in order to «inr coniirtn^ over luiher: But
we wtre told if we were wind-Liouni]. that the
money we received would not Ijcur our chartjfi'* ;
the»e w;is orders pven for our further s^ubsisN
ance ai Calais, to the president there, Accoid-
ijijrly we came to Calais, and the wind did not
ierve us tor eif^Ui or nine days; and v^hile I
stayed there, the money that 1 spent at Caluls
wu> piiiil by the president of Calais, Monsieur
Lutour. Afterward!; i landed in En^landi near
Uomncy n^ai-sb, as 1 was told, and I came to
the house- of one Huni^ and be provided me
a]vd iriy eonirude with u couple of borseis; and
cjominj^ from tbencef I came in the tirst pUiee
to one Tucker^s an a|K)ihecary in Sand way ^
and next from thence we came to R jche»ter,
to CharleH Croft's, and from thence in a coach
to Grave^iend, and from thence by v%ater fo
Ixindou: That ni^ht we lay in Grace-Chnrcb*
street at an inn, it beiujr night, the night-tide,
ani! something late. The next day 1 came to
fi lod^iikg at auactfuaintaoce's of my comrade's,
Mr, Haie, at the Unicorn in Browulow-stixei,
one Mi. \Vatoman*s. The neJtt m^ht 1 went
to look lor mv (ieon^e Bjircley, whom the kiiSg'
told me i should certainly tiiid by »uch a sifrti
of a wliili* handkerchief haogin^f out of hi*?
pucket, on Moiidays and Thursdays, in Covent
Ourdeo, wl^ere bia walk was to be iu the even -
ing^, becniiNC be was nut to appear in the day-
time openly, ft iuippcnrd that tij^oii Monday
flight after I came tt> tow »i, I went there and
did not tind sir George Bjndey accordlnjof to
the kind's dirrctioti, which i admired at; but
tbcre wat» one Mr* Berk^nb^adt who ftotd my
coimada, a day or two ailcr, Tb^t lir George
Triat of Ambrose Ro€ihxood^
[
Barclay would mscds speak with me, and
conlitij^ly 1 met with bim ; and he askod
liow the kim^, queen, prince, and princeis i
and I told him they were ?ery well ; I told 1
1 was appointiHl lo attend htm, and obey
orders. He told me he had no mon^y at f
sent, but in two or three days he would m
some ; and so he did, by major Holfnei.
bad live shillings a day for buintstetice,
had no horse ; and when I had a horse, tl
six sbdlinG^j a d9.y \ after which rate 1 bad
sisteiice for a month at five shilling's a
Sruincas going then at thirty shillings. W
Holmes paid me the moit(::y by sir Ge
BaiTley V oitler, as he told me, and '
w ards gave mc a j^uioea, and that was
Satunlay when tbt* a.^sa8Sioatjon was d
for that we told hhu we watited moi
was net reabonable we should take
out of the stable before we paid for theiu:
I met sir George Barcley several tii
CiMrcot Garden, and he to hi mc it was.
ciou^ place, and de<«ireil me not to
more there i but when he had any
ordeis to give me, be w ould g'ive me
it where 1 libould meet Uim ; and
I did meet him several times.
Alt. Gen. Now, Sir, will yoM tell
know as to the prisoner at the bur '^
Hants. As to Mr. Kookwood, the
that the assa>Bi nation wa^i diKi^iu'd to
Hrst lime that I knew of it, i met Mr.
wuod, Qt one Mr, i^orck^s lodging*, wbcte
was up, and t saw him in a ^rcat hurry
MMtM! eun«Lernation, and in cau>e M, iiornard
] asked bim the meanini^ of it, and what
were uoiny' abimi ; and 5lr* Umikwoitd
me, if I would go down to captain Couul
(ibonid know -, accordingly I went, and to
best of my rmnembratice, he jfave me a li
iH>te lo captain Couuter* but that I am Dot
Sktive in. 1 went to ea|itaiii Counter, and
soon as ever I came, he told us, we must
immediately reudy lo ^o to Tumham Greepi
Ati. Oen. Where was that ?
Hnrris. Ai the Woolpack, that was tbei
aii near a-ii I remember. Mr. Mare
I were oi-deretl together to come there,
there was Mr. Uuugate, who had Ikceu tl
smne time, and when I came in, sir Get
Hrtrcley ilid dcclur*? lau^hioi^, *■ These
* jani?isaries.' And he talked sometl
brintj^inu: the garter, auil of .illacking thei
btit he went out of the room, utid af\i
he came in and det*laretl» ' W b* are all
* honour, and that tiw business we we
* about, was to attack the prince oJ _
but Dnrant came in alYer that, and said, *
* prince of Oranije did tint go out that
When he talked of attacking the prinoft
Orange, i was very rimcb startled, not km
ift^ any thin^ of it l)ctbre ; and 1 Came the
uioiniug to Mr, Rook wotkI, and asked bi
we werti to be the mnrdcrf rs of the pridca
Oranifet Sa^'g Mr, Itookwood to me, ' I
"^ afraid we are drawn into some such husim
* but it* i had know a it before I catoe orarj
m
«%3cf mains, tnd ool have came over hither:'
nd taid I, * This is rery fiuc, we have served
'to a very good purpf*se, to he «e(it oFcr upon
*iucb •!] errifid and iiccount.* After this Mr
RooIcvioihI, nod Mr. Lnwick, and I, had a
iB««ting at Retl hyou Aeh1^» where we did dis-
CQune about the mutter. I did often declare
against it, that it wax nt* hnrharous a thingf, that
oa man <»f ht^oour almost woidd he g"iiihy of it ;
tet major Lowjck an<iwtred, That ue were lo
dhiy orders ; for sure sir George llarcley
wmd not undertake a thtug of that Dature
VftlMKit orders.
^^^Att* Gen* Pray what said Mr. Rookwood ?
^V Barris, lie owned it was a harharous ihtn^ ;
^Ml lie was sent over to ohey liir Gtorge Bnr-
Hpj% orderB, which he had several limes de-
Hkunid be was resoked to do ; upon Ihnt
wi» pCftet) : So afterward? I came to Mr,
BmihriHMtV ltM%itig; it was the Saturday
wmvmg I catfie to him, and no weut to
■r Gf*>nje Barcley*s ; while he was there,
Hr. F* ! gate me a note, naminif
•» ma , pariicularfy Mr. Hnn^^ale^
Sfr. Huafiird, Mr. Hare, and his own name at
top, not the name that he is arraigned by here ;
^ a «liaiu name that he had| as the rest of tis
ill hid fiham names, which at that time we
wcntlr^.
L. C, J. What was your name ?
Hams, My name is Jetikias.
L, C, X Who gare you that name ?
ficiTti. Kin*? Jaines'al 8t. Gerinnrns» and
legpffeBff. Hare the name of GuiDey^ and
Mt* liwlrwood'^ name wns Robert*;, ^^ng
liMilold us in hiis bed chamber, we were to
filjribHe Dames.
w. Gen. Pi'aVi Kir, what did Rook wood
•fivyiio, when he gave ymi that lii^t?
Bp^ii. He ir»!d me, he was to go t<i Turn-
^QB green> and 1 waii to |^o alonfjf w'nh htm^
todnya he to me stiiilin2"i * You J^hall W my
lidde eainp ; and g'et the rest of tlie gonfle-
■fO fvmdy :* and aceordinpfly I went t'> look-
er lererai of the ]»ersun^ — pariitrularly *or
Hf* Bludttntrrie ^ ^ hen ! came back ag^tn,
t foood him lyini^ on hts bed^ and thnt sir
L Ccocge Bare)ey had told him the prince of
I %miigt did not go out that day ; and from
I ^kmett we went lo dinner, where miijor Low irk
€aed with us, and Mr. Bernard e and major
UwirJc seeing me in a heat, aske<l me. Why
I iru IQ such a s%veat ? I toJd him I were^et-
tinj^lboiie men really for Mr. Rookw not) ^ who
bi^ made me his aid de camp ; says majnr
Lawtek to me, You may very well do il^ for
rMi have six shilfhirjs a-day allowed you, and
Iwte nothing'; I hnnji;- two m».'n at my own
cbari^. Said 1« Major Lowick, I wonder you
^ ftot apply 3'nurieH' to fir George Barclcy,
lad tlien, I Wieve, yon may be subsisted t€H[».
Hemtwered me, He did not think it ivnrth
ilKwItiJeto trouble him, since hir had never
mfkt to him of it before : aod Uookwood, and
mnmgde^ and Lowick, and myself, several
lioei met b Red -Lyon -fields, and talked of
I the prince of Orange*
Alt. Gen, Who did T
Harris, R^okwood, Bemarde, I^owick and
myself^
Alt. Gen, P»^t Sir, let me aak ymi one
one question. Where was your horsse'at 6rst?
Harrh, At first it was at my lord Fever-
shames stables, as tliey told me, in Somerset-
House.
Alt, Gen, Where wera the other persons
bcrrses?
Mortis. There vva<« Mr. Himgate^s and Mr.
Harems hcirsies in the same place, at the same
time, UA tli<iy told me.
Alt, Ccn, How came you by yoiiir horse
there ?
Harris. Major Holmes did deliver my horse
and committed it to my care, aod I carried it
thence lo another place,
Ati. Gat. Did you ob^^erre there was any
more faorses there ?
Harris. I beliere there was five or siac, as
near as I can guess.
At i. Gen. Do you know where Rook wood
was to have his horse ?
Harris. He had a horsey but whence he
had it I do not know.
Alt, Gen, Had jou any arms delivered
you?
Harrii, Yes, I had by capt. Conoter.
Mr, Concert, Were you at do other place
together that Saturday night, the 22d of Fe-
bruary, lie cause you say you dined together ?
Harris. Yes, we were at the Bear tavern.
M r. Cmiyers, W hut discourse passed betM ccn
you there?
Harris. They were talking about the assas-
siuation ; but what any particular person said,
f can ant tetl.
Mr. Conifers, Pray who were there ?
Harris, There it is Mr, Kui^hlly, captain
RooKwond, and Mr. King; and' Knightly
went mtt, and came iu again, and dechred,
we must btive a jjrent deal of rare of ourselves
or weshonhl he taken up : and he whispeied at
fir*it, and lifter** ards I asked him whit it vias ;
and he t<»M me, and said, ' We must have a
care of ourselres,' Says Mr, King, staring
ihis way with his eyes, * Surely God Almighty
is on oilr side ;' and so we partctl,
X, V. J. Whcii was this?
Harris. This was the ui^^ht of Raturday the
22d, wlien il wsis discovered; for souie Oilhem
were taken tip the next day.
An, Gen, Was Rook wood there at thai
time at tlie liear tavern ? ,
Harris. I cauBot positively tay whether he
was or not,
Att, Gen. What discourse had you there?
Harris, We t:\lked of assassinating the
kin^; but what it was in particular,! 1 cannot
tell,
L, C, J. W as Rookwood there ?
Harris. Yes, I beliirte he was ; hut 1 cannot
positively say.
L.C. J. You say it was the la^st Saturday
that the king was to g» abroad, that you appre-
hended yott were ditco?cred f
199]
S WILLIAM m.
Harris. Yei , we apprabeiided we were di»-
oofered before that ; tor Mr. Lowtck told me
that three or four days before, in that week,
that his name, and one Harrison's, were given
into the council, and another, and another,
two or three of them, as he told me ; I think
three or four; and 'upon that account major
liowick went from his lodging, and did not lie
at bis lodging the night bc&re ; and I came to
major liowick, and he told me the same thing
at the King's -arms ta?em.
Att, Gen, Can you remember what discourse
you had that Saturday night?
Mr. Cowper. You say that on Saturday the
93d, Mr. Bookwood ga?e you the list.
Harris, i do not say it was the SQd, for I
cannot swear to the day of the month ; but it
was the second Saturday that we were to hare
gone about this business.
Mr. Cowper. You say he gare yon a list of
names : pray when he gave yon tmU list, what
discourse hapi)»2Dcd in the room just before, or
miler the giving of the liit?
Harris, Sir, I think I told the court that be-
fore.
, Mr. Ccmptr, Sir, I desire yon would re-
peat it.
Harris, My lord, T humbly desire to know
whether I am to answer that gentleman that
question ?
L, C. J. Yes, you are to answer, being
upon your oath, until to tell the whole truth.
Mr. Cowper. I asked him the question so
fairly, what discourse introduced the giving
of the list, and what followed upon it, that I
perceive this gentleman does not know which
side I am of.
Harris, Mr. RooLwood said we were to <^o
to Tumham green ; and he told me, that I wus
to be one of his party, that we were to attack
the Prince of Orange.
L. C. J. You suy yon were tci be one of his
party ; prav was it there that he tuld you, you
should be his aid dc ramp ?
Harris. Yes, he did tell me I was to be his
aid dc camp.
Mr. Fhipps, Whose hand writing was that
list?
Harris. 1 cannot tell, 1 iuul it fVom that gen-
tleman.
Mr. Phipps, Rut whose n riling was it ?
Harris. Indeed I know not bisTiand-writin^,
and therefore cannot tell whose it was : he w
for his life, but I believe he cannot deny any
thing that I have said, I suppose not : i should
bo very sorry lo accuse Mr. Ruokwuoil of any
thing that was not true.
Mr. Fhifps. Pray whose names were in that
list?
Harris. I have mentioned Mr. Hare, Mr.
Hanford, Mr. Blackburne, myself, and you,
Mr. I^kwood, had your own name at top.
RookKood. IVhattt that Blackburne?
Harris. He is a Lancashire man.
Hookmood. it is a very strange thing I
■hookl give you a list with a man's name
that 1 & not know ; I declare it, I know no
■ucbponm.
He gave it into my hands, and hai
me agam, or I threw it away aftpr-
Trial tfAmbrote Rookwoodf [XW
Harris. 'Mr. Rookwood, I belkvoyovoi
very sensible I do not accose you of any thnf
that is not true.
Mr. Phipps. When did you see that list
last? '^ ^
Harris.
it from
wards.
Hookmood. But you that were to be an evi-
dence ought to have kept it to justify your evi-
dence.
Harris. Truly 1 did not intend to have besn
an evidence at that time.
Att, Gen. if they will ask him any qucstioM^
let them.
Sir B. Shower. No, indeed, I will ask him no
questions.
Ati. Gen. Then, my lord, we have another
fnece of evidence which we would offer to yonc
ordship, which is not direct evidence agaiasl
the prisoner, hut only to prove a circumaCanoi
or two of what has ali-eady l>een sworn : wtt do
acknowledge, my lonl, it does not aftctNr.
Rookwood, but only to strengthen and eonfini
what they have sworn.
Sir B. Shower, With submission, we hopo It
will not be eviilence tit to be given as to the pn«
soner at all ; for because a man may i
true in the particular circumstance of a
that therefore he swrars true what he
against the prisoner, 1 ihiuk is no consequ
in ilic world.
L, C, J. ft is a thing distinct and foreign Is
the matter^ as to Mr. Rookwood.
Att. Gen, Mv lord, we do not say itdiradltf
affects Mr. Rookwood ; but when your l<irdili|^
bus hcurd it, we shal^ submit it to you, how w
it conlirms even the evidence given '^^
him.
Mr. Coni/ers. My lord, we say the pn
was to have his horse from SuinerseU bouse;
and that there were horses placed there for
that purpose we are going to prove.
Att. Gen. My lord, it is one entire ooupi-
racy, in which every one had his part; ont
was to have his hordes and bis party in ent
place, and another in another : Now that thcit
were at such time such horses at SaoMmsl-
house, and tliose horses were i lelivereit out fioa
Somerset- house, is certainly a confirmation tf
the truth of what the witnesses have said.
L. C. J. It is so. If that be it you offer, it ■
very material.
Mr. Coni/ers. We shall prove, That upnn
the disuppointiiient nn the iiist Saturday, tkt
15th of February, th«*y were to be ready agniMl
the 22d ; and you will hear how the honm
were diK|iod<Ml of in the mean time. Call
Chamberlain, Maskel, and Allen.
Att. Gen. Call any of tlK.>m, I believe itii
enough.
(Mr. Chamberlain appeared and was sworn.)
Att. Gen. Pray will ynu give my lord md
the jury an aucount what you know of UM
horses that were brought to SomeiMi4M«i»
abont February laat. and how long they i
there ? -^ ^
Jqt High Tremm*
A. D. 1696.
[2QB
There ivas six horses.
Aii. Gem, Who bn>u|^hl tUew in f
OmmUrU^t. They were sent in by iom«
pcnoo» in Mr. Lewis's Dstne.
AtL G€m, Had you a&y direction to take
tweof ibeaif
Ckmi^bfrUiin. Mr. Lewis sent in a note to
1^ cafe or them for a ni^fhtor two.
iff. Gtm* Who carried tJiem away ?
Ciaiiiieri!<t*a. f cannot tell ; some people
eiaa to wtt. tbeui thtU 1 oever saw before, and
di«f|ookcM« of them; I know not who Utey
«af,iiMl I defer saw tljera since.
Ml Gen. What tiuae waa it that they came
lirihn?
Ckamktrlain, U was about the middle of the
Att. Gen, W hat monlh wasi it m ?
CkamhTiitin, I think it was much about the
baer end of February, to the beft of my re-
Ail Gen. How kmg was it before the plot
[ m disoovered ?
fTTTTiff-^ " It waA about a week, or a
mttlier, before the plot was discovered,
beat of my knowled^re,
. Gem. How luog staid the horses there at
Tliree of them staid a nigrht or
-tet the otlier tliree of them about a
' of n week or ten days.
I, G^n* Who <*\vncd thcM»e horses ?
_ ..riain. They w^-e sent m in Mr:
»> iMjne ; but who owueil theoQ I cannot
ndeeil.
lU.Oivjferf. Then swear John Allen* [Who
mom.] Pmy tell mv lords aart the jury
jou know coucerning- any horses aoout
I the one of the breakmiic out of the plot.
dU, Gen, We mean in Soon ei set-house
m* There was seren horses came in.
, C^wtn. Who brought iheio ?
AUen, There was six in the firsl place j one
MIM is aiier wards io ihe evenitig.
Mr- C^myeri, By whose order were they
WMnrlit there ?
Mien, By Mr* Lewis's order.
Aii, Gen, How loni^ did iltey stay there?
Alien. Home of tiiem stuid there several
^lyi ; ihrM of them went away the next day,
» I thuik.
Mr, Cemiftri. Bo you remember about what
ine tlmae horses were brooght thither ?
AUim* They weye brouf ht there, I beheve,
ibout trfreo or eight days before the plot broke
J^, Gen. ftly )onl« we only ckll thewe wit-
M^ci to confirm the testimony nf the others.
Ibt them wisre auob burses there at that tinie,
lid Ibr lliejpinent we rest it here.
L, C, J. Then, gentlemen, what say you to it
fcr the pritoiier f
Uk B. Sksmer. If your lortkhip pleaae, we
Hiofoou— cJ for the prisoner ; and ih .t which
^ aie 40 tnaiat upon, is tkk, which we submit
to your iordsKipA* jndgmeut ; 1 u the fifpi place,
whether here be two wttneaaes against the pri-
soner to proTe this treason ^ according to tbs
statute of Edw. 6, which ref|atrestwo witiiessei
in High -treason, and lawful ones ; but that in
the 6rst place we say, there are not two wit*
nesaesat all, at least not to any overt-act ibatis
laid in this indictment. As* to what captain
Porter snys of what passed between him and
Durance« the dialogue between them where
Rookwood was preseut, we are in your jordship^s
direction ; and we doubt not but I he jury will
take It into their coDsideration, how fur ihat af-
fects the prisoner ; that he shall not be eun-
cerned in any trarisaction lietween Mr, Porter
and any other persons ; none of their declara-
iiooK, none of their treasonable practices, can
be imputed to or aflect him in any way what-
soever. Now all that captain Porter says of
Mr. Rookwood is, that he was once at the Ulobe
tavern, and there was a discourse about this
matter ; and then he telU your lordtbip of a
dialo<^ue between him and Durance, and an
account of what passed between them ; but he
floes not say any thing of Mr. Rookwood being
any ways concerned in the matter, but only
that be dropped this eiprcssitm, it was a des-
Kerate adventure, a dangerous enterprise, and
e seemed against it ;, out in tlie end he con-
cladpd i*ith something in French, which what
they are, and what they mean^ we must f^tdimit
to your lordship and the jury ; he interprets it,
when sir Georfje Barcley said he must have a
share in it, then Rookwood rcpUeil, There is an
end of it But there i^ not one word of aj^ree-
ment sworn to, that Air. Rookwocid spoke to
»hew his consent. There is hut utie time more
that Mr, Porter swears to^ about the prisoner at
the hiir^ and that is, at his lodgiog<t in Little-
Rid or- street ; for as to the other consult*, Mr.
Rookwood was not present there ; ll sesfiis
there was a discourse about the affair, but that
Rookwood said nothing, hut went away ; there
was not so moch as the learn intimation of an
agreement to any such design, or approbation
of what was a(;ritated in the enmpnny ; and we
insist upon it as to this in |M>int of Uiw, that it
amounts to no mor«' than mispn^ion of treason
at most. My lord, 1 will not now contend
about notions, nor w i1] I ar^ue whether con-
sulting and agreeing t>e eviileuce of an overS-
act ; I submit to your lonlship'^ directiona, aol-
wiihstanditig the* variety aitd difterenoe of opi-
Dions thai h«ve hf*en.
L, C, J. 8ir Bartholomew Shower, I know
not what yariety of opijiions you mean ; there
have been some dietcourses in pamphlets, 1
agree ; but it was always taken aitd hdd for
law, that consulting and agreeing was an overt-
act.
Sir B. Shiiwer. Here is no evidence ef any
agreement.
L, C. J. Pray let us hear what you sey te
that.
8ir B, Sfimrer. It is not the being present
where traitors do consult and conspire the
death of thie king, unless they actually agree ;
nor is it evidence suliicietit to ^tde or prevail
J03J
8 WILLIAM m.
I
I
I
upon a jurv^s conscience to afiimn tjponlhdr
onths, tnal such a oU€ is guilty of bigh treason,
because such a ooc w&s were, and said noliiing
at all ; for the not diaooveriog' nAenvards, tior
accusing, i« no evidence at all against Mr.
B<H>kw^. As to Mr, Harris, be gives ynu
an account of a great tJeal that does not afiPect
Mr. Roukwood, neither all that |iassed at 8t,
Germainst nor in their jnurnev into Knglatid ;
for all that wa) be true, am! yet the pris»>ner no
ivay concerned in it. \u to what he affirms of
the prisoner, we !>hall submit it to your consi-
deration : what it aniounttt eo, and all that bia
deposition comets U[> to^ i«, that Mr. Uonkwood
complained thai be was lu uky implicitly sir
George Bardey's orders ; uiiil i I arris g^res an
account but of one particular time that Mr.
Rook wood undertook, or did ag^ee to be con-
cerned in this matter ; it was but once, and
that was, when he gave him ibe note of those
that were to go to Turn bam- Green » and that
he was to be his aid -de -camp : and as to that,
we shall gire you an acwjimt by witnesses
whom we shall call, that these two witneaaes
ought not to be believed as to what they have
sworn, though they do not come up to make
two witucKses according to law upon ihij
indictment. What they have aaid as lo
this man, ia not credible, though thev
nmj speak true as to others; aud no douGt
there waa • barbarous conspiracy ; it appears
there was such, beyond all eiceution and con*
tradiction ; and the persons that bare been
condemned as cons|iirators have acknowlei^^
it : but, my lunt, that which is now before
your lordship and the jury is, to enquire whe-
Uier the prisoner is concerned in this nflair at
all J and how far ; and we hope the jury will
be of opinion he is not ctincemed. The
beinousness of the crime, and the aggravalioi»
of it, being to Ik* abhorred by all mankind, we
ihink ought nut to snay with the jury, nor in-
lluence thtfir judgments to believe a witness
ever the sooner in accusing any other pei*son ;
it ought rather to have a contrary allay; for
the greater the crime is, aud the farther off
from having any tolerable opinion in the world,
Ihey ought to expect the greater proof; and
no one is to be presumed guilty of such an
act, without very suOleicnt evidence of it ; and
the greater the crime, the proof ought to be the
more (lositive and undeniable. It is not their
being plainly positive that is sufficient, but
whether it is such that is good in law ; and
about that we are sure your lordship will give
(rue directions in paint of law : and whether
the witnesses be cmlible or no, must be sub-
mitted and lefl to the jury, afkT we have called
some wilnesaeD, ulio will give you an account
of their reputation.
Air. Phippt, My loffd» we humbly insist
there are not two witncMCi, such as the law
requires, to prove the charge upon this indict-
ment against the prisoner: the two overt acta
that touch Mr. Rookwood are, first, csnsulting
and agreeing bow to kill the king ; the other
ja» Ibe Coding artm and horses lor that purpose.
Trial qfAmbroie Rookwood^
But as to tin's latter, Ibe finding arms
hcki^ef, there im not one eviAenor that comes
to it : and tLs to the former, the consu
whether there be sufficient evidence that
op t*» that, is very much a question wtti
but we say, with submission, there are
two wit:iesses in that case ; for Mr. Porter ta^
only whut he was told by sir George Barcle^
thut sir George )iro|}Osed this matter !•
withal he teils yoti, that when sir G<
cley proposed it, and Mr. Rookwood
fonniKl what the design was, he
from conspiring, consulting, or agreetng to
it, that he said it was a bariiaroiia act, and
recoiled at it. Then at last says sir Gi
Barcley, * You must command a party*
L. C. /. Well, and what said Rookwi
then?
Mr, Phippt, Porter says, tie then 8»Md, ti
is an end of it. Now, my lord, what evid
is this of a consultation and ugreemtnt.' A
this is all that Porter says. As to win
Harris says, we are In consider whetl
list given to him be an overt- net ; and
the poitit in question is, whethr.'r that list
be given in evidence against Mr. Rookwi
upon this lale act of parJiamenl^ as an oV(
art, it not being laid in the indictment f Tf
is indeed an overt-act of a list laid in thei]i<
dictiuent, as given to Cranbnrne, but none
given to Mr. RookwooiL
L. C. X i*ray take the evidence rMd,
first, ubiit will you make an overt-act? HKf
do you thu^k when there is a debate ai
divers persons abaut killine the kiag ?
Sir B. Shower. With submi»isiun, that
be no overt-act, if there be a debate of sudl
matter, though he be present.
L C. J. Aye ; but when there ts a consnll^
and upon debate a resolution is formed, aui
Ihuugh he does at first dislike it ; yet when tie
15 tuld be must command a party, he says he
is content, or tliere is an end of it — W hat doy
you make of that f
Sir B, Shouer, He said he did not like it
it was a barbarous, desperate design.
L. C. /. It is true; but when sir Georai
Barcley said he should command a party, hi
aorpiiesced, and said there was an end of i1
There was a discourse about cutting off tb<
king, and that was agreed upou in the conn*
pany at that time ; and though at grst he dii~
Dut like it, yet he might after^vanls agree to il
Sir B. Shcfwer, My lord, that is it which
deny ; we say there is no proof of his agree*
meni to it.
L, €, J. Captain Porter says, he did
that he said be looked upon it as a '
desiga, and wa«i averse from being euj
it, but aftenvards did agree to it : whetl
not that such an overt- ad sa is laid in the ii
dictmeot ?
Hk B, SftDwtr, My lonl, we must beg leavt
for the [irisoner in a case of this nature, that il
may be recollected what the evidence did aay«
Mr. Porter did not take upon him to affirm th; '
Mr. Rookwood consented to it, but only sai
fmf High Treason,
If n ftd of it.' Now we must leave
e jorjr, what they caa make of such
laMrorioB.
[ CiO Mr. Pteter iu again.
n^tru My lord, the first meeting
ripnbof, where the prisouer, Mr.
I, wu, ii at the Glohe tavern, where
Hie wai ;. the next meeting that he
mfoo the Friday night before the
iby when the buiioess was to be
iamrwards he met at Porter's lodg-
ibirday morning, in RidernBtreet.
a Ca|it. Porter came in again.)
Hirk ye, Mr. Porter, the first time
■Iter was proposed, when Mr. Rook-
vcMSt, Tou say was at the Globe
forter. Yes, my lord, it was.
And you say he disliked it, and did
»beooiioemed in it?
Yes, my lord, he did so.
. Well, what said sir Geo. Barcley ?
Sir George Barcley said, he ought
ii orden, for he had such a com-
r nch a thing, and he drew out a
w it was to be done ; ana when sir
icley told Mr. Rookwood he should
bii party, he replied in French,
acnlof it.'
Thif was at the Globe tavern, was
ffto*. Yes, my lord, it was.
I. Pray then, capt. Porter, let me
Mber question : Was he afterwards
tioy other meeting, and when and
Be was with me upon Saturday the
\j lotlging in Little Rider-street,
V George Baroley and others.
L What discourse happened then,
rbey did there discourse the whole
lir George Barcley was not for go-
time, b^aose there was so many
rent with the king, that there would
d onportunity to effect the design :
n they would go off after the hunt-
', and so it was agreed upon to go
mdertaking.
Pray, at tliat time did Mr. Rook-
1 to ifislike tlie affair, or refuse to
It ail concerned in it ?
Vo, my lord, I cannot remember
B one word.
(Vas Mr. Rookwood there ?
^es, there was Mr. Rookwood, sir
ley, and Mr. Dun nee.
And had \ou discourse at that
lis buatinesN f
fes, my lord ; there was that ob-
of so many people going with the
Bade that answer that 1 tell you.
Why, then, suppose at the Globe
in expression had not dropt irom
hot a man is present at two con-
» Md about the death of the king,
liif «iilMr at the first or second,
A. D. 1696.
rsoe
Sir. B. Shower. My lord, I confess this is a
case of a very barbarous nature, of which I
hope my client will acquit himself: but I think
we have the authority of parliament on our
side, thut tills does not amount to a proof of
treason. It seems they lay a stress upon thta,
that Mr. Rookwood came to captain Porter's
MgingB on the Saturday morning the 16tli :
but then take the case as it is ; for aught that
does appear upon the proof, he knows not upon
what account the meeting is, befin^hand. I
think that is the case of my lord Rnasel, npon
which the reversal of his attainder went, that
the evidence came short, and that it was but
misprismn ; fi>r the evidence was, that he was
present at the supposed declaration's readtng,
but said nothing at all to it.
L. C. J. But i speak of two meetings ; thsrs
was but one.
Sir B. Shower. My lord, I do not know whe-
ther there were two meetings or one then : but
this is the ground we ^ upon, there ought to
be two witnesses : and if there be two meetings
upon s|ich a design, the second may be as ac-
cidental, and it does not appear to be a designed
meeting ; and there was no appointment of
Mr. Rookwood to be there, nor any negocia-
tion by way of message or otherwise, to that
purpose. Is this, my lord, an overt-act? Sup-
pose a man be present at a consult about trea-
sonable practices, and he uses words that are
indifferent, it is tme, in the case of a wager it
amounts to an assent, but it hardly Will come
to that when people meet by accidenty or for
they do not know what.
L. C. J. How is thb by accident?
Sir B. Shower. It does not appear that it was
by design or appointment.
X. C J. Thay were acquaintance.
Sir B. Shower. He had no acquaintance with
him but in sir Georg^ Barcley 's company.
L. C. J. But, besides, there was an express
consent at the Globe tavern, when Rookwood
said, * There is an end of it.'
Sir B. Shower. That is as much as to say,
I will not do it, I will not go with you
Sol. Gen. Sir George Barcley was the per-
son whom they were to obey; and Harris telhr
von he told them what they were to do, and six
horses were first placed, and three of them
after^vards removed.
Sir B. Shower. That will not affect him what
sir George Barcley said, any more than Lewis's
a|>pointing of the horses.
L. C. J. Then here is another thine, Wh j
did he give a list to Mr. Harris ? The list that
was given had Mr. Rookwoofl's name at top,
as he was to command the paity, and there was
H»rns*s name and Harems name as of his
party ; that is, their feigned names : Mr. Rook-
wood's feigned name was Roberts, that was at
top, and &ey were to go to Turnham-Grsen,
and Rookwood told Harris he should be his
aid-de-caiiip.
Sir B. Shower. My lord, for thatvl think we
have a point of law, that we apprehend will
turn off all that endence, ind sure we may
«7J 8 WILLIAM in.
take thai exception now. The words of the
act are, That no evidence ihall be tnven of any
overtpact that is not expressly laia io the in-
dictmeiit Now cannot I shew upon this in-
dictment, that there is an overt-act in such a
positive direct manner as tiiey now urge about
this list ? Will not that satisry yonr brdsliip's
jud^ent lo set aside all this evidence? To
make the indictment good for treason, there
ought to be a compassing of the death of the
king laid, and an overt»aet laid dedarinjg that
compassing ; but no evidence is to be given of
any overt-act that is net fand in the indictment.
L, C. /. You ans not to take exceptions to
the indictment now, bnt only to theevidsnoe.
Sir K Shower. I have tliis one exception
more ; there is never a * Quodque,' nor a < Ju*
ratotra ulterins prHsentant.'
L. C. J. There does not need f bnt that is a
fault, if any, in the indictment^ and is nor to be
stirred now.
8ir B. Shmtr. If there be not a presentment
by the jury, then tliere is no overt-act alleged :
and if there be no overt*act alleged, or no such
overt-act, then we are within the words of the
act, That no evidence shsll be given of any
such overt-act but what is alleged ; and it is,
if not expressly alleged, as if it were oot al-
ibied at all. Now here it is very feoee, * 6ec.
* iidem Chrietopliorus Knightley,' and so it
goes on with the rest, did so and so. There is
a presentment at first, that they did compass
and imagine the death of the king ; and then
the indictment comes farther, and says, that
forty men should do this business, and of those
forty these four should be some; and then the
* iidem' bought horses and arms, snd so it must
go to the last antecedent, and then there is no
express alleging of any overt-act; and then it
is as if no overt-act at all was alleged.
L. C. J. This exception is not to the evi-
dence, but to the indictment: it begins < Jura-
* tores preseutaiit quod ;* Does not tliat relate
to all P
Ijir B. Shower. No, my lord ; and 1 can tell
\rou a reason why not : if it be not so well al«
hfged as it should be, it is sn indictment as
if it were never alleged at all ; and so within
the words of the act of parliament this is not
an uveit-aot aUeged, and therefore they cannot
give evidence upon it.
Sot. Gen. Truly, iny loni, I crannot imagine
what tlK*y are doing, they are moving in arrest
of judginnit bclun* a verdict given : they say
the overt-art is not (*xpn!8«ly laid ; In that an
eareeption to the ovidence, or to tlie indict-
mentr
Mir B. 5AfiMT. If my lord will plc;iso M •{ivr
us ihe iihcrly, we would Hhrwtlieni can lie no
venlict kivcu upon this iudiotmeiit.
L, C. J. Certainly tliia ia an imv^ilur pro-
ceeding ; this is iiui'sp time of exception to ihe
j»lgmi*nt.
Mr. i^hippa. Then, my kird, wesiw in your
JMdgtnisu, aa 10 the ppaaf ikat has bean niveti :
if a own be pmssnat m aiastinir if several iier-
lip % PmmmmSim Mnt^absut
Trial qfAmbroie Rooktcood,
killing the king, and this man is
but neither assents, nor makes
how it shall be done, whether tl
silent, and saving nothing, is sncl
as fdiall coq,vict a man of treason r
L. C.J. i tell you, oonsentini
ous design is an overt-act of hig
that consent be made to appear b;
Now the question is, What is a gi
evidence of this consent ? A man n
times St a treasonable consult fb
king, and tliongh perhaps at tb
not, yet at the second he did ki
meeting was for such a design,
the purpose there was but two n
at the second it is determined to g
design ; Is not that an overt-ai
cannot be proved that the priso
thing?
Mr. Fhippg, If the first meelins
sent or an overt-act, neither will
third be, if there way no more dot
first, but they are like so many c;
out a figure.
L. C. /. The first meeting posi
accidental, he might not know wh
though that will ge a great way i
dissent or du»over ; but when he
with the same company, knowii
bad in desiffu; does not that prov
That was the case of sir Everard
Powder Plot.
Mr. Phippt. But where it may
my lord, whether it were with a
or a bad design, that he met with tl;
it ought to be taken most favoi
prisoner : This man might be pn
to a discovery.
L. C. /. But besides, that is m
you are mooting upon points that
case. When Mr. Harris came U
wood, and finding them in some
being inquisitive what was the
was sent u> Counter ; and when I
what they were to go about, h
meeting Mr. Rookwood, says to
sent over to murder the prince of (
Rookwood, if I had known of this >
1 came from France, I would hav
king's, that is king James's pardon
to nave been excused. Hereby
Ilia knowledge of the design, anil
to do ; aud though he dislflfied, ye
orders.
Mr. Phippg. Tliere is no doubt,,
he knew of it; but whttlier your
construe his silence as a consent, i
the question.
L. C. J. A man is at frequent e
killing the king, and does not re
great evidence ut' liis consent.
Mr. Phippt. Unt it is not prove
actually consent lo it.
iSii/. 'Gen, My lord, we most
your lordbhip, whether this is nol
IMPoper and irregular at this ttnw!
arguing how Ihr thn cntact i»lc
8
209] fir High Treason,
hhtt ibe time pf^per for sucti tin nirgiiiDetit
dit. Gen. If Uiey will call thdr whnes^e?,
kt them ; «jt if they say they have ncme, then
iht-v uiAy make ibeir observations upon the
^ii«»Dce ; but else we desire we may be kept
miiie tisuai met bod of jmiceeiling^s.
Mr, Fhipps, With submission, we thoutrht it
fklo know I be opinion of (he court fir^t, if there
be iwu witne^Ases against the prisoner ; for if
tet be not two witnesses, as ibe law te~
•BRi, ire Deed not trouble the court vritb our
I
*r B, Shower, Then» my lor J, we mott de-
^ IliM tbe reeori) may tie read of captnin
^« eotivictloQ of luaDslaur^bter ; a man
s been ^^^iliy of doin^; auch an act, felo»
, mahcioijshy and voluntarily, us that is,
m nnt a coiiifjetenl ^ritneifs.
Ci. fJ'Ar. It haf been read already.
da 'Gem, 1 thought we hatt been over that
«ljKiio0 Fiefore.
Sg B. SAcater. We think it h proper for us
li Mfve it now a^ahi ; for tbouoph it is no ob-
MEfjoQ to bid beiujf a legal witness^ yet we
mf^ It will influence his rep*Jtation as to bis
fur lie ibat has been g-uilty of killing a
In guch a manner as the indictmeut lays
" ll find but little credit, we hope, with a
of comitrymen. But since it bas been
;, and your lordship and tlie jury have takon
of Vt, we will call some otber witnesses
Id Mr, Porter's reputation and behaviour,
mk they wiTl prore things as bad as nn
, I shall not open them to your lord-
heg leave to call oor witnesses, who
ac^^naint you what they have to a^y,
da. Gf». Certainly, my lord, you will not
ik 10 let tbcm do so. I desire they would
vm nny ibing* of evidence without ac-
the court what ibey call ihem for :
Were the way to let thein in to call
to thiu^ that are not proper.
X Nay, without doubt it is not regxilar
ti'pfiodace a»v evidence, without opcniDg' it.
Ait. Gen. iFor if it be for any crime that a
ntn may be presented for, and there is no cod -
fiction ; 1 think that ou^ht not to be given in
evidtnaee to take awav a witness's credit : f f it
beonlv tr» bis gencraf reputation and behaviour,
cy may jjo, and we cannot oppose it.
1 desire sir Bartholomew Shower
irm opf^i to the court of what natare hii evi-
ileoce is.
Sir B, Shower. Well, 1 will tell you then
what 1 call them to.
L. V, X You must tell us what you call
them to.
Sir B. Shoti^t' Why then, my lord, if rob-
tifiirtipo Vivvayjf clipping", if convers-
ing with , it fornication, if bng-gfery, if
any of tbe^e irregularities* will t«ktf utf the
credit of a man, 1 have inj^tmction^ in my
Wif, of «Tidieiiee of crimes of this naturi*, and
jMint porpofe against Mr, Porter ; and we
that by law, a priiioner standing for liis
m tlberiy to give an acGoaat of the ac*
VOL, Xltf.
A. D. 1696. [2Ifl
tioD» and behaviour of the witnesses ajjain*!
him. I know the objection that Mr. Attorney
makes, a witiie<<B does not come pre[mrcd ti
vindicate and give an account of every cctioii
of his life, and it is not commoi^ly allowed to
give evidence of particular acTions ; but if those
act tons be repeated, and a man lives in the
practice of them, and this practice is continued
tor several years, and this be made out t>y evi- •
denee ; we hope no jur3'^ tiiat have utiy con-
science, will upon their cat lis give any credit
to the evidence of a person against whom 6Uclt
a testimony is given,
3Ir. Phlpps, We are speakings only, my
lorfl, to the credit of Mr. F'orier ; and if wo,
can shew by evidence Ibat !ie is so ill a man a«
to be guilty of those crimes that we have
open eel, accord ingf to the instructions in oilf
brief, wc hope the jury will not think him fit
to be a gooil evidence against us in this matter*
X. C. X What soy you to this> Mr. At-
torney f
Alt. Gen. My lord, they themselves know;
that til is sort ol evidence never was admitted
in any case, nor cun be, for il mu«t tend to the
overthrow of all Justice and legal proceedin^st;
for instead of trying^ the prisoner at the baf,
they would try 'Mr. Porter. It has been al-
ways denied where it comes to a particular
crime that a man may be pvosacuted for ; and
this it seems is not one crirae or two, but S9
many and so long^ continued, as they say, and
so often practised, that here are the whole ac-
tions of a man*s life to be riot up, which they ^
can never shew any prececfent when il wae
permitted, because a man has no opportunity
to defend himself. Any man iu the world may
by this means be wonnded in bis reputatioii,
and crimes laid to his charg^c that he never
thought of, and he can have no opportnnity of
g-iving an answer to it, liccause he never ima-
gined there would be any suc^h objetrtiou : It
IS kinitig a man in his good name by a side-
wound, against which he has no protection at
defence. My li>rd, this ranst tend to the pre*
venting all manner of justice ; it is agutnst all
common sense or reason, and it never was of-
fered at by any lawyer before, ns I believe, at
leastwise never so openly ; and theri-tore I
wonder that these gentWmea should do it, who
acknowledge, at least one of them did, that ae
ofleD as it lias been now offered it has been
over-ruled ; arid I know not for what end it is
offered, but to make a noise in t!ie court:
They know that it is irregular as muth as any
tbiiitj" that could be offered.
SoL Gm. IndeeiJ, my lord, if the prisoner
at I he bar had oflTered this matter, if bad bf en
f xcusabte ; but that gentlemen of ibe long
robe, and who are so w^ell acquainted with thu
practice of the courts of law, shoyld pretend to
do such a thine^, is unaecountahle. There
was somewhrit like this tliat was offered at
Manchester, but that was by the prisoner, to
prove that one Lunt who wits a witness had
two wives, and they brouj^ht a copy of an
indictment upon whicU i\ixx< yi^ u^ ^^'lyi^e^a''.
J
8 WILLIAM m.
I
I
I
811]
after lEiat they endeavoured to prove Uim
guilty of scleral robberies ; but all tbat sort of
evidence was refused. I only give tlu^nt this
iJiKtaPce to shew, ihftt where "the prisoner has
attempied it, il has l)eeo always rejected ; and
I am sure they caonot shew tne that ever it
was allowed, even to the prisoner himself, to
give any thiuj,^ of this kiud in evidence ; and
Ibis 1 must say, they can never shew me any
oue parlicidrtr ini^^tiiuce^ wlieii counsel ever en-
deavourerl it> do it, before this titne*
Sir Ji. Sh&iier, My lord, 1 ment'otied the
particular crimes, the faults which I had in
my instructions to object against the credtt of
the testimony of capl. Porter, in answer to Ulr,
Attorney's desire, that 1 would ojien the jiar-
ticulars of the evidence, that I would call my
witneascs to the truth of it ; I was loth tore-
peat the words, I think the thing's themselves
»o abominable ; but we conceive, with sub mis -
iiou, we may he admitted in this case to offer
what we have oflfered. Sun pose a man be a
commonf lewd, disi»rderly telhyw, oij^ that fre-
ijiiently swears to tahhouil lor his life : Wc
know It is a common rule in p«int of evyeoce,
that airainsl a witness you shall only give an
account of his character at large, ot bis gene^
ral conversation ; but that general conversa-
tion arisen' from particular aetionn, and if the
witnesses i^ive you an account of such dis-
orderly actions repeale*!, we liope that will go
to bis discredit^ which is that we now ai^e la-
bouring for, and submit it to your lordship's
opinion whether we may Rot do it»
L, C* J. Look ye, you may brin^ witnesses
to give an account of the j^eneral tcnour of
his conrersationt but you do not think sure
that we will try now at this time, whether
he be guilty ot robbery or buggery.*
Sir B. Shi/ner, My lord, we wd I give you
an accoutU that he used to have a private lodpf-
ing*, and cume in with his horse tiitd, aiid
several other such things, as tbat he used to go
out in disguises, and the like*
Mr* Fhipps, My lord, I cannot imagine
why a man tbat has been giiiltv of any such
crimes f and is not taken, should be of greater
credit than a man tbat has beea token and
pt)nisbed«
X. C. J, Wliat istbat y^u sa3% Mr. Phipps ?
Mr. Phipps. ^ly lorJ, I say it is the crnu»
that renders a ujan infamous, and 1 do not
know why a mun that has had the good for-
tune not to be taken and punished fur great
crimas by him coiumittedt should be in a belter
condition as to the credit of his testimony, than
one tbat is token and undergoes the punish -
mentof thelaw.
SoL Gtn. Mr. C ha mock urged that as far
ms it wouhl go, but we are obligSl, it seems, to
hear things that have been over- ruled over
and over; but I desire to know of them»
whether they can shew he has been guilty of
a greater crime than he has confest himsielt
3,
• See Peake*s Law of Evidence, chap.
WitueMe«y sect. 2, art. General Chamctcr.
Trial of Ambrose Rookwood^ [212
{(inliy of in court, I mean of tlie intended
sa>isioation.
Mr. Phippt. No^ we agree we can not ; hut
pray let us prove him guilty of as many
crime* as we can.
Sot. Gen. But, tny brd, 1 ho{)e you will
keep them to ihe general question of the CQfn%
mon ordinary tenonrof tiis r^nversation,
8ir B. Shouer. Call Mr. OldfieId» Mb
Nicholas, Mr. Millbrd, 6hck Will
[Mr, Mitt'ord appeared,
Cryer, Lay your hand on the hook. Tii«
evidence that you shall give on behalf of th
prisoner at the'bar »hall h# the truth, the wbol^
truih, and nothing but the truth. Ho bei|
you God.
Sir B. Shovecr. Pray will you give my lorJl
antl the jury an account whelher you knoi*
captjiin Porter, and how long you have knowi|r
hirn ?
Milford, I have known him about fonf
y ears-
Sir B. Shower. What reputation is he off
Miijhrd* I never knew any hurt by bim i|
my life.
Sir B. Shower, Pray what is your naoief
Miiford. Frederick Miitbrd.
8ir If. Shower. But the name tdk my brief I
John Mil ford, that is my man.
L.C^J. But you sec ibis man knows hln.
Sir B. Shoutr. Call ftlr. Oldfit- Id. ^
[Which was done, and he appeared
inglvO,
Mr. Phippt. Do you know captain P^
Oldjield, Yes, I do.
Mr, Phipp$. How long have you knowi
bim?
Oldjield, T believe about twenty yean,
Mr, Phipps. Pray will you ^ive my l'-^^—
and the jury an account of his lite and coAvec
sal ion.
Oldjield, I can say nothing, he was aliray
civil in nsy company, but he was lewd in '
discourse.
Sir B. Shower, What do you mean by bei
tei^d in bin discourse T
Otdjitld. Why, he would be talking
extravagantly.
Mr. Phipui, What do you mean in talking
Was it of what he had done himself, 8ir?
Oldjieid. No otherwise than that he
whored, and those kind of things.
Sir B. Shotiitr, What other things
whoring?
Oldjield. I know no other part of it.
Sir B. Shoucr. Where is Edward Boucl
(He did not appear.)
Mr. Phipps, CaU WiUiam O^Bryan
did not appear.)
Sir. B* Shaver. Where is Mr. Page, and
IlardimaD ?
(Wone of them appeared.)
Cryer* There is not a man of iheio berl
Sir.
Sir B, Shower. Mr. Webb#r, Do you kooi
where they are, fur the court stays fur them
I aooi^
1
(Bi
Jar High Treoim*
Webber. Inilced I Jo uol, llicy were
turned to he hrrc'.
Rf B,Shimcr, Where is Black Will ?
Crjftr. BUck WUI. (He ajipeai-e*!, und was
JL C. J. Ask him if lie be a Christian.
I Cryrr. I bav« asked him, and he says he is
ICJuistiaa.
(ThcD he was sworn.)
, /, Well, what do you ask hitn ?
^BoDkmoad. Will, Pray gire an account of
rQinster^aod of his file and convt'ifcatinn.
. Phtppt, You are sworn to I el I the tmlh,
-Uciirt.
It. I served him almost ei^ht years, aiid
L» t>ee-o a rcry good master to me, my
Shvwer. What do you know him to
af?^WilL Nothing al all.
Shoxer, 1 beUeve they hare put in
• men to confirm his reputation.
hCJ. Indeed,! thiols the king\ counaeT
iM hire called these witnesses if there had
t aceaAioa.
rB. Shower* We siibmit it to your direc-
Itow far this e?idence will aflect him ;
inolbiogsaid, aswc ap^^rehend, that wilt
, to treason ; if the prisoner lias a mind
_ any thing^ himself, we hope your lord-
» will p leasts to hear him.
. J. Aye^ if he will, let him.
od, Wy lord, Mr. Porter dops not
I consented to command a parly «
C. J. Is that all you have to say f* Then,
tatUmcat w ill von sum up ?
. Ctmyeri. My lord, we are agreed j we
t to the court' on btfih sides.
i C* J. Then, gentlemen of the jury, the
rat the bar, Mr. Roukivood, is indicted
Ibi^-treason, m compastsiug^, irna|riiiing,
Imtetidin^ the death and destrnction of the
, by a itumi barhaitius and wii'keil assas*
you have bad an account of this de-
two witnesses that have been pro-
the one is captain Porter, the other is
ris» who swear ihey were Inith con*
< as actors in it.
Captain Porter tells you, about the tatter end
of Jinimry, or the beginning of February last
ot^^e Barcley came over into England
(France; and there was a former ilesi^i
der the king; and al^er several meei-
conferences amon^ the cons|iirators,
itne to a resohitiun itiat he shnnlil be a<;-
Bled ; but which way to effect ii^ ad-
l of a dispute among them ; (or the kin^
yoa have heard, going frequently, aliont
tm week, a hunting on theotlttfr side the
Richmond, the design was lirsl to
ISBvituite hitn at Hiatimond P/^rk, or tlierc'
Rl he riHurufd from liiinLin!jf, and pre-
vras made acci}rdin;rty ; bui thai not
folly agreed upon, the convenicncy of
held iiill some debate; for sojne were
, _ .A* that it was better to make the at<
Irniptao ibii ii'Je the water» tbao un the other i
A,C. ie9f.
[21*
.iKai
tfftma
. Uarris
theTefore, as Mr, Porter tells yon, to deter-
mine that tlifficulty, ihfre ivt^re several men
sent, wtit?rei>f he was one ; Knighltey another,
and King a third, to view the ground on both
sidas the water, ami to make their report : the
grannd Ijeing viev»ed, and the report made to
some of their aecom|»lireJ3, v%lio to receive it
met at the Nag\s'Head in Covent Garden,
which was about the tenth or tvvehUi of Pe-
brnary last ; it wa^r (hen agieid Ibai tlie king
and his guards slmnld be attacked on this side
tlie water, about Turnham-Green.
Mr. Porter has told yon, that at several
mpt'iings lor I lie carrying on this design, the
prisoner Mr, HiM>kwood was present* m<>re[iar-
ticubrly at the Olobe Tavern in Haiton-garden,
where were also sir George Barcley, Mr.
Clianioek, sir William Parkyn^, himself, and
others, and tliere they did enter into a consult
liow they might assassin ale the king ; and it
beini^ proposed, Mr. Hookwood did not like it,
as Ml'. Porttjr says, but said it was a desperate
a I tempt ; and thereupon Kir George Barcley
pulJed out a scheme tbi^t he had, and shewed it
at that time to Mr H<iokwood, and said, yoa
Hte sent over from France, and ate lo obey ray
orders, and you are to command a party ; and
then Mr, ilonkwood made an answer in French,
' There's an end of it,* which, as he says, im-
ports a consent.
Then at another time, which was tlie Sa-
tnrday morning the 15ih of Feb nary, they
met at captain Porte r^s lodging, and there was
a discourse about going on to put the design in
execution; and one Durant, otieofihe men
that was lo watch the king and the guards
going out at Kensington, came in, and th«
question was, whether they should go that day
upon the design? They h&d di^tcuur^e abonc
it, and Mr* Huokwood the prisoner was ihera
present, and there did not up|>car any dissieat
in him to the prosecution of the design, but it
seems it was readily agreed among ihem, to
pursue it according to the former detertaina-
tion.
Then the next witness that is produced ia
Mr, Harris, who gives you a large account of
the beginning of his knowledge, and of bi»
being concerned in this matter ; lie tells you
he was in France, and at the court of St* Oer-
mniits, where the laic king then was^ and tliat
he spoke with him, and xvhere was also co-
lonel Parker ; and king Jiiines took notice of
him and of his taithfut sen ice, and tuld him^
he ulways designed him a kiulne^s, and then
h'^d opportuuily i>f doing it, jlthI «:atd he would
send him over into England, where he shouM
he subsisted, and directed him to obey th^
orders <if sir Oporge Barcley ; and there beiog
one Mare by « who was to come over with him,
knvj James gave them both names of di!$<^uise
wtiich ihey were to go by in England, and, as
it ^eeuis, i»ther& that came over did also assume ;
tor Mr. Rook wood went by the name of Ro-
berts, Han is was to go by the name of Jen*
kins, and Hare by the name ofGuiney; they
were directed to apply thftxtselroitoiirGeori^c
I
I
I
I
I
Biircleyf ^Ttd had ftirRctioDS how lliey shnuL]
f]|]d hint^ lihith wtre lo f^ointri Covenl-g:ar<leii,
in the ev*>ning, ujmti a Momb y or a Tlnii-siby
unrj it' they nnw ii persui) thiit had a vihtte
hantlkerchitrr hanLi";^' out at liis pcu^kel, they
were to Xnke nonce »it' him tn te sir Gc-orije
liarcley, urMl liny hud len levvisd'itres a piece*
tor Ui^ir ji}ume\s tt* carry Ihem uff; ami 30U
haF(7 hi^ard tram whom tney had itietii ; anil
|bey were toM, ihai ifat Calais they were kept
2im|i^ei- than I hey expected, whereby their mo-
ney was spent, care wns takf^n tiiat they sihould
i>R till ppl led from the governor of Calais^ the
Sresj.letiithere; and it sccm*i Mr, Harris and
Ir, Hare m ent together to Calais, and lay a
coaHiijerdlde lime for want of a wind, wherehy
Iheir oioupy fell short of defray injf their cx-
peuce^ ; hut thry were afterwards aopplied by
the (Tovernor of Cnlaii, acrordioj^ as was pro-
iniaeil at St, Germains.
Gentlemen, lie tells yon, thai af\er they came
intu Eot^huulf tlie firt^t time thny went to seek
air Getiix'e Barcley, wfts npon the Monday
uitfltl, huL ihi-y didnot find bun at thyt time ;
hnt al'teruauU thry met with him, and Mr.
Harris hail snbsistenee- money from him, ac-
cording to kinj^ Jameses promi<«e, which vvai> lit
^he rate tA' 5i. a -day, when he had rm horae»
«nd afterwards when he bad a lior^e, at 6*.
fi-day ; this is the account he ^i^ca you how
lie came overt ami of his jounjey and inetftiniif
with sir Grorye Bare ley.
^nd now he conies to «i{)eak particularly con-
cerning* ilie prisoner at the bar, Mr. KookwomI -
He tells you, that on Saturday morningf I he
l^th of February ^ the first day when tliis as^an-
■inuiiou was deniirucd to be committed, he wi nt
to the lodi^itig i>f one Burk» wheie Mr. Rook
wood was, with others, and he found tlipm all
ia a i^eut dii^oriU^r ; and ihi^reuiiim Iil^ asked
rijeni, what wjir the matter, and what they were
l^oin^'' In do ? And Hftokwood bid liiiu go to one
Conuter, aiid Uv shuuld know ol him whal wu8
the matrcr : acoordtnifly he went to his h»d^*
la^, atid Counter told him ami those vUio weie
with bnii, tliat ihey muiit {^f't ri'udy to go to
Turnham Giien ; tiiid at the same time and
jdace hi' mt*t widi sir Giorj/e Barcley , and atWr
tome ttiNcouriie of aitnckui»,r thi* coach, sir
Ge^iri^e Bdrclcy at the fir^t said, they nvre tit a
iiinizarie< j ;ttu\ athrwards ^TfjjM^ out, he caiue
in ngaui aiul sbhU llit-y were mm ot houonr, and
ihut iiu y wtre to go ahroad lo attack tlie piiuce
pf Oninge,
The n«'Xt day, or a little time after» Mr,
Uarriv mei witi» IVIr, Hook wood, and enters
jntii discourse \* ah hrni to iIiir cHVcl : \\ hai !
jire we sent 01 cr to aiunler the prime of
Ornmre? It m a strange sort of employment :
(for It fcecrn» lliey wer^^ not inrormt'tl iuViauce
what lliey « ere to do here, hut they viere to
put themseKes under ihp cjihiuci <d »iir Gemije
Barcley, nndohe^ lissordcTS ) Air. Uuok^Mlod
taul, he wiw afraid thetljint^ vas >o, mid tliat
fhey wcredniwnin ; hiil said. It he had Unov^n
pf the dt-Mii^n helore-hnnd, be would out have
^fce o^ei*! but bafe begg^^ the king's pardou.
Trial qf Antdrase Roohmod,
Which »ihews not only \m knowledj^ of
desifrn, but bis being engaged in the pn
tion ot it.
And then, Gentlemen, you are told fiirti
Tl»a< upon the gfoin^f out iipon8dlurdn\ ihe \
whii b was the second time it w^^ to have i
put in execution, there was a \\^\ of meo 1
Mr. Uookv^ood |ravfc to Mr. Harris of sei
names that he ha« mentioned to vou ; lie sa'
Mr. RookwoodV niirne waii at the top, 3fi
that was to command the party, and I ho m
he went by w»& Roberlfi ; and there was (far
connterteii name, which u as Jenkins ;
Hure*!i comiterteit name, which waa Guii
and they wtie to nifike ready lo go to T(
ham-Gietn. He tohl liim, there was a
and thnl be and Harri<i was f 1 be of hifi pari
that he nus to attack the prmce of Orantje,!
that Mr. Harris .should l>e bt^ aid ile camp,
G( ntlemen, I fur^ot to tell you, That betwi
the tirstS^aturilay and the aec<md, Mt^. Han;
Mr, Hr»okwondt anti Mr, Lowick, walkriig
Hed-Lyoo- Fields, and tht^re in di^coi
amonf:*themselviii, Mr, Hun is and Mr, Ron
wood did express tiietosclveR lo he iiiueb c
cerned that they were to lie employed u
m»ch a desig'n as this was* w bich they owi
to be tery Jiarltaronai hut Mi% Rf»okwooiJ \
Lowick said. They were under comiuund, 1
tnuKt obey orders^ though Mr. Ruokwood
not like the design they were enifatfed in.
CJeiitfcmetJ,thev hii*etutd }ou ol horses I
were plai"©!! at fciuraenwt- ho«ise in a sti
thtre, under the cpre of Mr. Lewis, my I
Fe* ei'sham'si gemleman of the horse, about
or seven horspK, und those n\ horses tf
thereat that time were afterwards taken
but that \s only a circumstance,
80 that, Oetitlem^Ut tins i« now the aitm i
siibvtQUce ol this evidence thai has been gii
you, as tar aii it relates to the prisoner :
counsel in his ilctence have ins i^teU upon 1
veral ihiogs ; in the tirsi place, thougU i| 1
last merit loneil in tune, yH ii ou^hi to have \
first con!< id etation ; the ciiunset for thepriaoi
have endeavoured 10 lake otf ttie credit of ]
Poller, ami have 0|ieneil indeed very jjri
crimes ihut he Blioufd heg<dhy ol« whn h nil
»*ender htm a person n>*t u» be lieht*%edj I
tbty have not plowed iiny thio^ ; no utni
that they haie calleil ajjaiiiHt Mr. l*oit#r*a
the leufit a;(auii»t Imii lo invalidule hiK lestaiicii
or to induce yon lu disbelirte wIihi iic baa sfl
Thtn they Ray in poitit of law, Tliere is
overt- art pm^nl fd' iin> design agaioM |
kiiig^s hfe ihai affects ^\\\ Rtkokwc^od ; ui
that main-r you are to coiinider of, wbethep*
noil ilots a|*fi^»r by the it'^iuuony of two n'
I ne^^c^, that Mr liooki«ood hqs toneertiml
this desif^ii of U9»jia«}iirialiiig the kiOiT ; Cft|ill
Porter is pruiitive that lie ^^ aiv 31I the cuu!»uli
the Glolje-iavern, where it nas firopt^Ftd, 1
battd, and resoked upon ; but Mr, Rookwc
Kny.s, hu <ltd dii^like 11 ; (^o ^uyscapiatn V*\
lit- d d not Hpprove of it at the fiui updn |
bi tit;; ioifuuhitid ui h it-, but bein^ m
j to obey the orders of sir George Dardey,
•UUUl I
imi
High TreasomJ^
George Bareley producing a sclieme ready
drtwn« wlief^m he H4« tu cntnmaiul the party »
l«Hij]g hitik^ that be mtisl n\\ey oide rs. Wan
hrar wbai he sakI, uitl tl>e answei- he rrtiirnect
inPraiichT Tbrre is an etui oi it ; whether that
4iCi Mtiamuutil to a amsfut und a^rt^t-ment tu
biiOgfm^i in lU« cle»i*^n, is l«t'l m ytmr codsI-
4ii»liiiii ; trir i^' ii ilo^ it is pUmly an o?ert-act,
Tben, Genlletiien, yau hcAr further, that
liiiTTA was luld by iVlr, Rjokwocvl, that lie
■hAQlii b« orbts party, and le his aid itu campi
»B4|fotuTuriikiaiii'iir4^c'tJ to attack the prince
iift)r»ni^,and Ue had a]t»tot men given Iriuihy
Jliikiirooti, and viras directed to get the rc^t
ICfiff^&^cKH/. That was not in thcindietmcnt.
L*C J. But you were at that rattling, which
1 lU the itidu'tnieiit.
itrood. My lord, that list ig not in the in-
em ; the list in th« itidtctiiient rctcrs to
Mr, Cranbume,
L C J* Sq, but thai is an evidence of yoar
kifif in ihede^iun; I hope ih»t list of nieti
•iit^aitfiieetideQceot the Lunjieut and aj^ree-
■mtiJiaiMr* RookwouJ WHS to cifinmanJ a
6ur B. Shower. With ffubmission, my loril^
i^ftbcaci seem otIitTwise, and that
&htiii1d bt*|^veo in evidence, that is
iy allrili^ed.
L. C* /- But ran not there be one act, that
m%\ \m [if*H%i of another uet wbirh is a! ed^ed I'
liir B. Sfnm€r> Then there \s no advautau^e of
Ibiv lanr ; |iir« my h*rd, the end of the act uus,
Tttal tht y dhuiihi ktiu . the puriicuhir cnines
tbsltbry Merc to antiM^r tu.
LC'j. TUat cotdd ne^er be the end of the
law, \\ml all particular facts that are hut evi-
4ri3«F oT ibt' tnc)^ al led cieif should he set forth in
tW 4mJ*eUiietit ; it mii» sutlicient before the act,
to 4J**<d|;r any overt act; mid any oth^rovfrt-
aci, |Jb«Ma|^U iiut alh'd^^tdautil h^d no relation to
|lw ofipf t-sct that Masaiti'd^ed, ytt if it ucre
ID ilie cainif s^irt ol ireasou, might be given in
*ftr B "^hoirer. The law says, Ye sltaU not
^r e«iilei)i'«> of any overt-act that is Dot ex-
H ui«£iiiio(jed«
C J* It i« not urg^cd as an overt- act,
ft r»idence of ati overt- net ibnt is alled^rei) *
liriailsiiee. theov<rt-ait alledged iii, tbuf they
M HMWl attd conduit, ^hall not ihey fi^ive in
fvidf«l04$ wliat Mixv, ^idHiiiM^ii^ ^* thosi: tneet-
IDfpi, tliautrh not iilUdired :' ^ijr George Burctey
^roilnc4^i a sbcbeme at the (j lobe- tavern, $iball
oat tbe producing of that scheme be ((iven in
v^vU^tictr ^ If it may, why n^it the giving the
list tM Harris?
Mr V^ihjtfti. !^Vy lord,, it U plain it was
Itr Attofuey's opinion, it couhl nut ije gi*en
h ^viueoce, noteH!4 it wns alletlged in the in-
lifctiuent \ liecao'^e he has particularly al-
Id^l lh« bM lu Craubnrne^s case^ in this
bilifitinefii.
Oen. I know not ivhat those srentte-
by \\\i% twrl of practice ; certainly
iiet«r urera w^ mftoy irreg'uliM'ities com-
miitcd in any trial as in this, and tinw parttcn*
larly to break iu upon the court in the midst of
tlvc eliur^e,
L. C. J. Nay, nay, if ihcre l»e any nxiatakep
let us hear them, ih^it it n»uy he recltliied.
L. C, X Tre6y. I think we should receivo
them, to iiT if they can o*ake it our. But the
objection 1 do not very wi-ll understand yet j
^r, as I take tbe matter to stand, it is alJed^ed i
in the indictment, that ttiey hail prepared men
and anus, and horses, fai the execution of this
desijfn. Now ii it not fpa^onable, or can
there beany thiniif niort* proper, than to g'iv^
in evidence^ and prove that the fnisouer had,
and dehi ercd to some of the complices^ a hst of
those men that were to do ilf ^V'hy, it proves
the very thiti^ alktfged ; but let usscewbe*
ther it he so.
Sir B. Shower. My lord, there is do eucIi
thing a Hedged,
L. V. J. That ts strange ! pray see if It b«
in tb& indictment.
Clerk if Arr, (Reads.) * Conreniebant,
* proposuenint, traciaverunt, consuliavernnt,
* consenserunt, et a|^reaveiuut, ad ipsum Do-
* mhium Kegem nunc ex Insidiia et Dobper«
* cniiGiHUim^ Angiice * to as^ssinate,MDto^fici-
' end urn, «t murdrHndutn ; el ad execrahilemi
' horrendam, et dctestabilem Assasbinationem,
^ Angtice ♦Assassination,* et interfectionem
*^ illam cilius exeq»iendum ci perpetrandum^
* postea scilicet t^iadem Die ct Anno, ac di-
* verbis alii^j Ditbusot Vicihus, apud Farochi*
* am pro^diciam in Comiiatu priedicto, prodi*
* torie troctavtrnnt, projH'Huei imt, et consulta-
* veront *}e Viis, Modis H Mediis, ac Tempore
* et Loco, ubi, qnando, cjualiter ef quorimdo
* dictum Dominuiu Etegeni sic ex Injiidiis fa-
* eilius iiiteriicerenl ; el consenserunt, asjrea-
f vcTunt et asseuserunt, quitd quadraginta
* Hiimiues equestres aut eo cir<'iter, qnorura
* ii*ltm IJlirisiophorns Koighlley, Rohrrtos
' Luwicki Amhriiiiius Hookv^ood et Caiolus
* Crauburne Jbreut qiiatuor, et quilihet horum
* proditorie sujier se j*usceprt esse nnum, cum
* jjomlmrdis, Sclopis et fciclopetin, Putvere
' bofidianhco et GUdiuUs plumbeis oner at is, et
* cunr Ghifliis, Ensihus ct aliis Arm is annali
< imiidtiiti tortnt, et essent in ^iubse^sn, Art'
* gikt *■ in ambuiib,* adundem DrMiimum Rc«
* ^em in ftbeda sua, An^Occ *■ hif* coach,' cx-
* ihtentcm, qnando IbriN iret invurteudum ;
* quodqne quidam et competens NuTuerus do
*• HuminihuK il i^s^ sicarmatisinHaielhteft, Art'
* glke * I he guards,' ipsius Domini Regis euni
' tunc attendenies et bee um existciiti :^ agtjrcssi
* ibreut, et eoa expugnarent el deMnterent^
^ d nm alii eonindem IJoininum sic armiatoruiii
* ipsum Dominura Regtm perruterent> inter^
* tkerent, occiderenl ct murdrarent/
Mr* Ctwyfri. And, my lord, there k cH-
dence of some of these forty men, wKoM
nameti were given in a list by Rook wood t»
Harris?
Mr, Fhipps. But now, in CraDbnrne's perl,
the list is expressly altered as an OTert- icI*
Ttiai of Ambrose RaQkw:oi^
I
L. C. J* Never talk of Cranbum^, we have
Pdi him before Ui» uovt ; Imt wbnt ilo yua »ay
10 this of the ru.i|riven Uy Rookwuod to Harria ?
Hit B, Shoicer, My Lord, «ie s:i y this b
not evidence of aa overt- act, aceonlini^ tu tUii»
act of porhameol ; whicb sa)s, wo efi«kiiee
shall be given of any oiert-act, ihut is imt ex-
jiresBly ^ledgeci in tlic iuiliftinent ; lujw ihe in-
nictment says, tbey did sy^ree that T^rty hi^rse-
men armed, ot which liietour named werei<» In?
foor, and every one uudertook U> ii€- otie, ^vbo
fthoiilti lie ill wait to svi upoo ilie kii^i; in bis
coacbf aud a competent dumber sbuiild set upon
the guards; and then it E»ay$, in ordtitr to fulfil
this, they did pre^iare tiorscs and arms, and one
of Ibemby ihe cooseui ot all the rest did <'arry
forward aud backward a hst, that is, Crao-
bume; atid that partirulur hst is a purlictdar
overt-act alledged hi the indicltiient ; which
makes it plain, ihey thought it necessary to he
particularly alkd^ed by iliis act of parha-
lueDt, or they could not g-ive any evidence of it ;
now the list tliat evidence is given of, is sup-
posed to be delivered by rhe prisoner to Harris,
Now first we say, it is not evidence tliat torty
ahould du it, for tbey may dr* it without a list;
and next, it is not e%ideiite of iht; hst that tbt;y
have mentioned, lor tliat is alledged to be car-
ried about by Cranburnc j iiod as the prisotier
himself has observed, this litit ^iven to Harris
is not in the indictincat, and iKeretbre no evi*
dence cmo he given of it,
Mr. Conyns. It is an evidence ofthat overt-
ftct wbicli is el press ty alteJ^eil iu the indict-
iQent, that they met together to consult how
to effect this treason,
Mr, Cow per. My lord, wc are In a very
strange case berr, it we be not very proper iu
this part ol'our evidence; the overt-act livid is^
That the prisoner iint together wilh olheriJ to
consult how to assassinate the king, and tlui e
the prisoner among' tlie re^t did a^ree it lihould
be done so and so. It in admitted the prisoner
was there ; hut^ say they, if you only prove
that he sale by while there was a ja^cner^d dis-
course of such a matter, but do not provi^ ilnit
li« said or did any tiling expressini^ his usscnt^
that will not amount to a proof of the overt -uct
laid ; and yet, if w t? go abtuii to prove further,
any act done that manifests his assent, then ihey
fifty you go too fur, and prove an overt- act that
in not menuonetl in the iudictment. Thtis they
j^rant, the agreement U a sntHcient overl-act,
but object, that being' present barely is nol a
snflic'ient proof o!" his n^reerueni; then whcii
ive go to make prool of any thing' that is a auSi-
cient proof of bis agret* menl, they teU us it is
not proper upon this act of parhamcnt, be-
cause nut hiid in the indictment, though his
agrei'meut be laid in iho indictment : And m
they would amuse us, rather than mJike any
solul ob|ectioD to our evidence. Thi^ doctrine
is certainly very o<ld, my lord, and we doubt
not will bavc hitlc weight with the court or
the jury.
Ait, Gen, According to this doctrine, all ibc
evidence mu^ be put in the iodictuietit.
L, C. J, Tbey ask you, wbai Ais givii^
tliis hst does prove.
Alt. Gen, His tt§rr<-eing at that m^^liner
the cuuspirary, and the esecutufu of it, by ^t
ing that list of the names of iheni that were
he of bis parly, aud his own name as eoti
mauda* of that party, this he I'-ives to one tli
was to be nf the party, and particularly wan
l>e his aid du eamp^ in order to ^et them read
(or the txeculiun ; is not ihis an evidence
the agreement, which is the overt^act? N
man in the world can he convicted of treni
if thi!!( doctrine be true.
ihf. Lien, My lord, tbey have not txpi
something; m tfie iudintmifntthat has beeu
which will make it plain tlmt tins is the
pfO|»er evidence of the overt-act taid in liie
diciment. The indictment tiays, tUey
there hiHinld be forty men or ihcreaho
ed, of u hich a certain number shouhl m;
assuult upon the king's coach, while aoi
purt sliould set upon ihe guards: N^
proof wt: tnake is, that I^Ir. liookwooil
soner was to command a party that w
upon the guards ; and in order to it, '
a list of bis lueu to Harris, who was to
aid du camp, and bids hiui get those
reiidy ; and this was upi»n tlie day that tl
nmtler was ly be acted ; So that it proves vcj
pliiinly that oven-act that we suggest in ll
iudictment, that a certain number of thoae mi
were to ai^sault the king's perMoo, and tini
the guards And therefore tiiey ueednl not
huvtf interrupted your lordship; for this I
that Harris s]ieakii of is a very good proof
tlie (jveit-act that is laid iu the iudictment.
L, C X Then, gem I em en, as to this
which they have objected, that this liat gii
on the day of the intended asisa^inutiou, oi
nol U* ha nlhiwcd as evidtnee to prove: the ti^
son^ because it is not fipecially laid in ihe ti
dictment, but i« by the lute act of parliame
excluded from btuig proved to convict the pr
souer: Now though itie act d<*th exclude tf
{giving in evidence of any o^crt-act that h n
laid in the indictment, yet it doth not exclui
tiiah evidence as is proper and (it to prove tin
ovt rt act thai is laid in the indictment, T'
tore the <pit:!3»riiio ia, VV heihcr this giving of
hst drich not prove some overt -act that is
led^cd in the indictment P There is in the ia
dictinent an agreement l^iid ti» kill the km0
and if that Itc piovtfd, that is an overt-act of tlii
treason. Now when the cum sent and agre
rnent of 3[r. Kuokwood to that ilesign isprorc
surely the proof of his giving a list of men,
a furlher jiroof that he did sgree to it, and ihi
it is very proper to be niveo in evirlence -, t
if by the new siatoie no one act r^^n be givi
in evidence to prove {luollier, th' u must a
uii\y the 4jvei t-act, hut also the evi^ience of
act'be ejcpressed in the indictment,
ifontlcmen, Vou have lieard ihe witiK
wfial they tmy c-ucerning Ibi^i mutter. J
first place, if you do believe that there wj
cojiisnlttt and meeting!^, where tiiui inteoi
soisioaiioD of the kmg was debated and
a
Trial qfCharUt Cranbufne.
A. D. 1096.
[S».
I, mud tiMt Mr. Rookwoofi was present
a^ree to it» tbal is an overt-act: And
r yoa are ntisfied that there was an
lit to prepare and proride a number of
et opon the king and his guards, in
iDcr yon have heard, and he was con-
n making this provision, and was to
ost, and command a party in that at-
t is a further proof of that consent and
nt that is laid in the indictment.
men, I most leare it to you, upon the
that you hare heanl. If you are
upon the testimony of these two wit-
bat bare been prodoeed, that Mr.
nd is gailty of thbtreason of which he
ed, in compassing and imagining the
' the king, then you will finuhim
If yoQ are not satisfied that he is
eu will aoqoit him.
Jr. Cryer, swear an officer to keep
, (Which was done.)
J. Now, if yon have any thing to
I behalf of your other clients, pray
Skoteer* Yes, we hare an exception,
r a one of false spelling.
J. If so be it be any such matter as
i move in arrest of judgment, it bad
eseiied till after the verdict. .
. Skomer. Our exceptions wiH serve, if
be, for Mr. Rookwood in arrest of,
It, and tbey will serve for the others
■event the trouble of the trial, if we
or lord^iip's opinion that they are good
I the Jury withdrew to consider of their
jwl after a quarter of an hour's stay-
.Mwned, and gave in their verdict.)
fJr, Gentlemen of the jury, answer
Hmrs. Samuel Powell.
^melL H«i«. (And so of the rest.)
Cryer, Vousavez.
CC, ofAr, Gentlemen, are you all agreed of
your verdict?
Jury. Yes.
CL ofAr. Who shall say for you ? .
Jury. Ourfoi-eman.
CL of Ar, Ambrose Rookwood, hold up thy
hand, (which he did). Look upon the prisoner i
How say yon ? Is he gnilty of the high trea»
son whereof he stands indicted, or Not Guilty F
Foreman. Guilty.
CL of'Ar, What goods or chattels, lands or
tenements, had he at the time of the treasoil
committed t
Foreman. None, to pur knowledge.
CL ofAr, Then hearken to your verdict li
the court has recorded it. You say that Am-
brose Rookwood is guilty of the high treason
whereof he stands indicted, but that he had no
g[00ds or chattels, lands or tenements, at the
time of the high treason committed, or at any
time since to your knowledge, and so you sav
all i»— Jury. Yes. ^
Mr. PmoeU, We desire we may be dia*
charged.
X. C. J. We cannot do that, till we see
whether there be enoo'gh upon the other pan*
nel: We will give you as much ease as we
can: We shall not, I suppose, tiy the other till
the afternoon, therefore you may take your
ease for the present ; but you must be about
the court when the other trials come on.
(While the Jury was withdrawn, the court
offered to the counsel for the prisoners, that
they might move what exceptions they bad
before the Jury was sworn as to any of the
otiier ; which accordingly they did ; but that
relating to the case of Mr. Charles Cranburne^
in whose presence, being then at the bar, tbe
objections were made, mat part is left to bia
Trial.)
The Trial of Charles Cranburne, for High TVeason t At the
Sessions of Oyer and Terminer for the County of Middlesex,
sitting in the Court of King's-Bencli at Westminster:
SWuliamIII. a. d. 1696*
Aprii SI. 1696.
SR the trial of Ambrose Rookwood was
bile tbe jury were withdrawn to con-
r^Sacir verdict, the court proceeded thus :
:. J. (Sir John Holt.) Mr. Attorney,
w3| yoQ hare tried next ?
Gem. (Sir The. Treror ) Cranburne,
letdAmpleaiei.
if Ar, Then, keeper of Newgate, set
I Cranbome to thenar.
.flSS. Holt, 68a. Bast's Pleai
Gk»«i^e.S,a.40«49|6S.
L, C. X You, ffentlemen, that areof coonsei
for the prisoner, if you have any thin(|f to 1
for your client, you may move it ; but first let
tbe prisoner be uere.
(Then Charles Cranburne was brought to the
bar in irons.)
L C, J. Look j^ou, keener, yon should take
oiTthe prisoners irons* when they are at the
bar, for they should stand at their ease whea
they are tried.
See in this CoUectiooy ?oL 5, p. 979.
I
I
I
I
8 WILLIAM IIL
Keeper. My lanl, we UaTe no instruments
li«re to ilo it jnsjt now.
€L of Ar. You may send Lo the Gale- bouse,
tod borrow insiruuiciits.
Just Pouxti It sJiMild be 4uoe, mdeeit j
L. CT J. Well, go on I sir Baiiliolomew
Sbovver,
ii//* Gen. My lord, bf^foreuir Bardiobmew
Shower cuter upon his excrptioiiK^ ut)1c<i«i) tboj^e
exoefitiofHj of bi!» »re some of the pMiiiculars
m^nttotieO io this acl^ he imiNt tir>l do it tnav,
after plea pleaiJed, befur^ ibe trial ; btil be
iDUil ilo it in arr<fst uf jufl|rrtieDt.
L. C. J. Trcbif, It is true, regularly ; but
let bitu use his own juilgment.
L. C J. It is very true ; the course ha? nol
been to allofr them to ino?e to quasb an imliel-
meiit lor treatjon, or felony ; but it may be done.
Ait. Gin. 8ure, it must he only ft'r such
thinffs aa ihey cannot take advantage of in ar-
real m Juilg'tnent after ll»e verdict
L, C J. It hats uut been the eonrae, but it
may be done.
Ail Gen, Not where there is an isaiie join-
ed, and a jury returned to try ihnt issue ; I be-
lieve ihat oever vva» done, nor ai tempted.
L.C. J. Triby, If there were any prejudice
to the kro^ by it, it were not fit for nn to alter
the course ; but tel ii5 hear \% hat his ei^ceplians
«i*e.
Sir B. Shnwwr. I have several exceptions ;
five at least ; one of them is within the very
word« of the act, that is, improper Latin ; I atn
aure some of it is so.
L, C. X Well, let's bear what that is.
ii\T B. Shower, It saya, ^ anno re^ni dicli
• doitiini regi< nunc ^eptimo,' and Lewis is the
last kiofif rtienttont'd before ; and so here in no
year of the king of Eng^lond meniione^l. It is
A certain rule, that relatives most refer to the
last auteeedent ; and that rule hol(]» ahrays,
unless there Ue weirds thai accompany the re*
lative^ which undeiiiahly shew to what it
refers*
L. C. X Aye ; but do we call the French
kiB^ * cfominus rtxf*
L, C. J. Trehtf. He would have beeu bo, if
hm had succeeded in his invasion^ aud thi^ as-
sassin at ton.
8ir B, Shomer. In every indiclmenl, if there
be occasion to mention a former kin^, il \% al-
ways nupcr res and such a one, naiiiin<T the
©aiiie of the kiuj?, where llie preseut king's
Dame does iiiterveue, to prevent contiisioo;
and so in civil actions it i« the same ; and so it
shouki have been here.
L. C, X Ay , but I tell you^ it is * dotninua
' rex nunc/ which i^ our king^.
Mr, Phipps. It iii not said * Anfjlia?/
L.C.J, But wherever it is * dominns rex,'
we understand it of the kiniif of Kny:land^ and
nobody ehe» Readnhe indictment,
Ci.of Ar. ' Necnon cundeni Uoitiinum He-
• gem ad Morieiu et finaleni De^tiutiioncm
• ponere et adiluceret »c subdjtos suos fideleh,
• ct Liberoi llonaiues Hujus llegtii Anglia: in
Trial ofCharUs Cranbume^ fl
I * servitutnm intolernhitefn et fiitserrimani
j * dovico RpLri Ctullico sulijoi4:arf, et maneipal
* Dectmo llie Frferuanr, Anno Ket^ni dicti D
I * mini uunt* Regis ?»eptiiiio, el tltYersia i
I * DiehiH, &c.»
I L. C J Can any man imagine this to be
' Frem li king ?
I Sir B. Shower, My lord, jour lordship U
to imagine one way or other,
Mr. dm per. In the strictest sense
grammar in the world, it must menu kin|; \
Imw^ a nil no other. We do ncH need 3
irnsigmaijoo, v^ hi n in the strictest constnit;!!
it ift pin in who it refpvs to.
Hir B. Sh(*wtr. I am «nre no grammar
make it go^id ; nothing but a &up{M>sttii>ii
hefp it
Mr. Corrper, When it is said * Dictus 1
minus Hex,' if sit Barlbokmiew Shower
ItuiI out another *■ Dominns Rex* in the im
I tneni, then he may make something «d' hi*
i ji'Clion ; hui the * Dinnmus* is only appbe
mirovfn king throughout.
L. C. J . PnOj/. Hesides, as to the rule
sir Bartholomew Shower menlionUt it it
* ad proximum Amcceilens fiat relittio nisi
* jjediwl Henteufia.* That is the rc'stricti(
the rule, it must relate to the next aiiti
uidess the sense would Le projutltced ;
here if ibis const rut- 1 ion should be, it m
make this clause in he no better than nni
\ix. I'hat the Hidyects and freenieti of
realm « ^re to be brought into inii>lerabte alavf
to Lew«i the French king, snch a day m
seventh year of the reign of our lord the
king.
Sir B. SAoo?er. We say it is little better
notisense ; I am sure it is looin;, ami un^
and not grammar, but carries a tiew I
with it,
X. C. X No, it is as well as it con be.
Sir B. Shtnrer* Then, my lord, there i»
other exception ; it is said, ' riiver^B Diebin
^ Vieihus tnin antea quam ]K)stea ;' and tl
afterward*! it say^, * posieti nt ilicet eoilem 1
* cimo Die Februari* •/ that is repugnant j
is wi much as to say, That upon the lOtj
Fchruary, and two days after\*ards (to wit)
said lOiliday of Felnuarv ; ihat is, afler
days afler the 10th of February, viz. upon
same tenth day.
Att. Gen. 'Vhat * Postea'is another sentei
and relates to other tn att era
Sir B. Shower. It raunot in propriety
speech be said to hr after wanls ihe B^ame tfa
Soi. Grn. (>»ir Jolin Hawles,) If sir P
tbolomew Shower remcnlhers the evidence
we have given this. day, he will find it w&f
fact so ; they inirt on the 8atunlay mom!
and allerwanls met again the night of the
day,
L. C. X There is notlnng in that oh}
sure; it is a common form, when they tell
tliffereiit mnllcri.
Hif B, Shonrr. Well then» if yon will beti
the rest which are not of the same notntv,
bhuli come to what we think % faitid except
»]
fur llfgh Treason*
ite««f tbb b4lcltii€Qt af Hic1i^Trea<«on l>emg
tfiiii»4t • 9(i)>jecc hurt), ought to have liud the
irc>fJ»iii it, * Contm siiprcftium nutumleitt Li*
'^ijtfi l>oniiniim %uu%\\ ;* ac?cor<linif to Cal?irr»
V^ute in the 7th Report, \o\. septimt*
L, C. J> It h ^ L'ODtra Ligeonttie su:£ I>c-
kitiim,' IS it not ?
Sir B. Skouer. That won't help it, my lord,
fiDr «)t that H appHcaMe to an ahen horn : ami
foiifhe raae in luy tonl Dy«r, 144^ where it i^
■H, thai U' an indictmc tit of treasrrn he ajritini^t
ttufieii, you mai^t not pnt in the word nnttira-
Im; if yoti do, tt will be t'itulty, because he
#«w but a local alle^ance to tlie king of Eng*
bad, and not a uaCural one. Now ne say^
llmv are none of thase prisoners hnl are «iib-
horzi, and the constant fornn in queen
lb 'a time, and queen Mary 'a, was to
( the wortls * Natur&Jem Dominum/ and
f cannot a hew me any of those prece^leots
tit. There wa« occasion in Tncker'ii
tMelo lixjk into this matter, and seardi aJl tiie
frwl4R>t». 1 have looked in my lord Coke's
■Mi^ and alt the preccdetit;» ; * I have seen
Zlerd of £sjifx^it indictment, and all the
m in queen Eli/aheth*s time, and those of
lii b^orst in the Power- Piot, and tho<ie of
^ Rcpcide?*^ and Tucker's* own indictment
iMf ; nil a!oti«^ it is ' Njuuralem Ekiitnnum
wttm i* and the reason for it i^i, he that U
ilMvloffi, yon never pot in * Natumlem Do-
iImmii atitjm«' because he owes a double alle-
gincv; ufie natoral, to liis own ktni^ under
dotninion he was bonj, and llie other
to the king in whose dominions he re-
^for lie is bound to observe the laivs of the
here he livci: and if he violate them,
Wettlc the allegiance that he owes to
iment where he lives^ upon nccotnit
^|tf«i9ectinn he cnjuyn under it. But if he
h s fubjeet uf the king- of England, he
Itt kii ime oainral liege*lord ; and he Wwv^
^ai£iiffi»tiinau born, the kin^rstEinds in that
I to Him, as he does to all bia native ^uh-
fJHti * I to tbreigtters; and therefore it
Wia 1 I equisite to be, nnd has always
heUi ito indictments of trertson Qjraiujit
iiKjr And, my lord, we think the
•«\ f^:,.-,.M,vMi ofthe court, afterwards afdrmed
klbellou^euf Lords that reversed Tncker'ii
r, went upon thta opinion, that Ihe law
I * natormletn ligeumi Dooiinum' to be
pot in. There the exception was^ that * Con-
Urn Uebitum Lii^eaotite su»^ waa omitted : to,
vl^lcii it Witt objected, that there was * Dottii-
inn Sopremum Naturatem,* which was equi-
Hlmt; no, It was amweredjioth were reqtii
#i, becmu<ie every act chared in the indict-
Mil oiit^ht to he bid against the duty of hla
al^giaace. Now io indictnaents of ueason,
M« af» certain words ihnt are es«enti>tl, be-
Otte of their relation between the king; and
tei people. There are c^-riaiu forms of words,
"^' ' * ...i ....... f.-.-. I 'tjntoinHke
|f^ ►f Those
....^.,. ..^ .;. .....V,,.. . ^iidlhe want
will be a fatal ej(crptioa ; ^ vrc tliiiik
Xill.
A. D* 169G. [29fl
it would be in this case, ns nnith as if the word
^ Proditorie^ had been left out ; oras if in a case
of^lony and btlr^la^yl the wortls' FeSunice^anit
' Bnr^lariter* had been left ouU
Mr. F hip pi. .My lord, we take the prnctice
and precedents to be the rule of law in thecaiite ;
nnd I have looked over a great ninnv t>rcce-
derits, besitles thofie that sir Bartholoiiievr
Shower has cited ^ and 1 never saw any one pre-
cedent of an indictment of treason a|;ainst a
snbjeot born, without the wnrd Natui-alcTu ; ami
all ilie cases cited by sir Barlholoniew Shower
are full in the point. Counter's ca?te tu my
lord Hobbart, 2fl, wher^ it is i^aid, ihut if
there bean indictment agnint a subject iKirn, it
most be * Contra naturalem Domi.imu ;* if
n^^ainst an alien, * naturalem' must h<* left out*
Ty say * Contra Ligeanttfc susc Dfbiium* will
not do, it is not enough, for that may bi» said ^
ag'aiof.t an alien, because he owes a locsil aU
legiunce, though not a natural one. Ami I
take it, upon this difference, this indictinent ii
not Lfoml.
Att, Gen, My lord, 1 do not know how faf
you will think it proper to enter iuto thi» mat*
ter before the triaL
L* C. J. Mr. Attorney, 1 think yon had ai *
good speak to it now as al'an other time ', though
1 must confess it is not so proper in point of
practice.
Ait, Gen, Well, ray lord, then we u ill speak
to it now. The objection is, that the words
* natundem Donnnum^ is not in the indictment ;
which they say is conlriiry tolhe usual form ;
as to the 'prece<lents, llier'e are a great oianj
n here it has been, and lam sure a great many
where it has not Ijeeo ; and I am sure for this
six, seven, or eight years hist past, it has always
been omitted : and, with suimuassion to your
lordship, it is not at u\\ necessary, if there be
words m the indictment which shew, that what
he did was agiinst the duty of his aHcgiiincft
to his lawful and undoubted lord (wbtL-h are
the words in this inflictmetit). h u true, if he
he not a subject born,* naturalem* cannot be in,
because that is contradictoiy to the obedience
which he owes, for it if not a uiitui*ul obedience
that he owes, but a local ; but if a man be a sub-
ject born, and commits treason against (he al-
legiance that be owei;, that is against \.m na-
tnral allegiance; for whatsoever he doe*
against his allegiance, he does against hh na-
lural allegiance, and so there is no need to put
in the word ' naturalem i* becau.<ie he owes no
other alkgiance but that; it is sufHcient if
that be put in whieh shews its being ngainst
h\9 allegiance. If they could shevv that a
subject born has two allegianres, one that is
naiuralpand the other that is not natm-al ; then
if you would prosecute him, you must shew,
whether it was against his natural, or against
his other allegiance. But whrn he has none
but a natural allegiance, certainly against his
allegiance, without putting in natural, will be
well enough. It is true, where there is no na-
tural allegiance, it must be wrong if you put it
ID, because you put iu thatalle^uiiu:« ^Uv^k
8 WILLIAM III.
Triml of Charles Crmihurne^
I
he iloe^ liot owe ; but where he is a suUjcctborti,
to fHH ill iiaturul Lic^e-Iorij, there is no grouud
at uU lor it; there are words enow that sliew
it was against his allegiance to his biwfu)
ajid uudiJitljte*! lord.
L, CJ. Lrfiok vou.fiir Bartholomew 8iiower,
ho%v does it appi'ury that these uieu are subjectii
J>orn f The metier yuix go upon does not B|i-
pear hjjoq (lie indictment, and you are not to
ijo rttf trom lliat.
Sir B. Sitowcr. Every man is presumed to
\ be 80, unless tlie contrary appears.
L. C* /. Yoii quote Caivia*s Case, and the
oilier ca!»es that are there put ; those are all
cases of aliens; there is Dr Lopez's Case: he
hein^ au alien comes into England, and coin-
luits high-treason : why, say they, how shall
we indict this man ? We cannot say it ia * contra
*• Naiumlem Do m mum sutim ;' for he owes no
natural allegiance to the queen of England ;
how shall ne do to frame a good indictment
ag^ainst this man? They considered of thisj
and they said it will he a good indiclmeut, to
charge htm with high-treason, or any one elsc^,
leaving out the word * Naliiralem:* For if it
appear he ha<i cimimittetl an offence ai^ainst the
laws of the kiog^doni, and against the duty of
this allegiance, which h high ti-eason, that is
enongfh* ^ow as to Tucker*s Case, It was re-
versed for want yf the conclusion, * contra De-
* bitum Ug'eantia; sua?.* Thoise words arc ma-
I ferial ; for let the oifcnce be nevtT so much
tt^ainstthe person of tlie king-, as to assassinate
him, or levy war a^ain^l hihi, yet sliU if it be
not against the fhity of his alle^iducc, as it
cannot be if he owt^s him mine, it is not ht^h*
treason. And therefore if it be againi!il his al-
lr;fiance, whether that allegiance bo natural or
local, it IS ail one, it Is euough to moke it high*
tfttuon.
Sol, Oen, In that case in Dyer, ihey nht^w
where it was a fault to put thewoid in, but
tliey can she\f U4» caKC where it has bei'u ud-
judt;e<l lo be a fault to leave the word fiut,
L, C J\ No doubt it would be a fjiult lo have
that in, * Contra Naturalcm Dominum isuum/
where iheie is oidy a loia! allegiance due,
Mr, Vhipps, ifuw di^es it wppear whether it
is the one or the other that is due ?
L. L\ X It is no maltci whether the one or
tilt' utlier do appear, it is hi^h-treason be it the
I one or the other, if it be against the duty of \m
alk-q-iance.
Mr, Phippt> Nuppoii^ au indiclment against
an alien were, ' Coniru Natunilem Dominum.'
JL- C. /. That would be ill, because then
you liad laid it more specially, and otherwise
than really it is, and restrained it where you
ou^ht not" to doit.
Sir. Phipps, How then, ray lovd» shall it ap-
pear that lie onfy owed a local obedience ?
IL.C. J. It may be given in evidence, that
he is an alien Unu,
Sol, Gen. lie may plead it in abatement to
the indictmsnt,
X* C* J. He ought to be acquitted, for you
ktve indicted hiiu of a criine against his natural
allegiance, when he owes no such. Bui altc*
giance generallj coa>prehends all sorts of nU
leg^tance, natural and locaK
8ir B. Shou'cr, Ho*v then, my lord, come att
the lawyers of all ages to put in those wiird»ii]K
indirttuents of high-treason against subjecisi
born ?
L. C. X No. I have seen abundance of priH
cedents, that have only * Contra Ligeantisf sun
* Debitum' generally, and so the tnost part are
for allegiance is thi* genu^, and if that l*e sug-,
gestedj all the iijHi^ies are contained iindtrr tUat«'
Alt, Gen, Well, have Ihey any inore:* ,
Sir B. Shotrcr. Ves, we ha%e more. j
L. C. /. Well, you shall have them all in
lime.
Sir B. Shou.cr, My lord, here is another ob-
jection, and that is thi^ : Here is one Ihct tb«t
they have laid, and that is the second overt-
acL in this indictment, that tliey conaeoted
agreed (hat 40 men, (whereof* these four w
to he four) hut do not lay it to be done trailof:
ously. They 9>av * Consenserunt, agreaven
^ et assenscrunt,^ hut not * proditorie f anil
never saw an indictment that laid an ex
overt-act, without repeating the word »_
If your lordship pleaBics, the words in the ii
dictment are thus ; as to tlie first overt
is laid in this manner; *■ Et ad execi
* assassin at ioncm illnm cx^uend.' ut
time and such a place * proditorie tractaverua^
* proposuerunt et Consultaverunt de vii£ et i
^ dis mediis, (S:c/ and tlien comes this whie
we except against; ' etcoosensenmt, agiemfi
* runt et assenserunt quod quatlragiuta Ho
*■ mines,' 6:c. Now this is a plain di^unet i
and tiiere is no * pruditorie' to it ; and if ef ^
they can slicw me any indictment, in which \
overt-act was laid, of which they ga^re
evidence, and it liad not the word ' prouitotj
in it, 1 am very much mislaken. I am i
nevcir saw any isuch. And it is not i
say* ihat the nature of the thing is sue
that it cannot hut be a treasonable act;
they must alkdge it to be ho, by liie express i
of that word w liich the law has appointed
express this crime by. In the ca^^e of an
dictoient for felony, if it l)e not s;iid felony, it j
not g^uod* They are not to describe tfi
circumlocution, which is a particular
fixi by law, the}' must use the verba arii
terms of art, and no other i if your lor
plea!«es it may he read.
SoL Gen, Let it be read if you please j
take it in English, and ii is no more than I
thej did Irailnrously compass the death oft
king, and for that purjwse they did Itaitottiui
meet, and consult abtjut the wa\s and mo
and did consent and agrt^e that forty men,
C/.</ Jr. Reads; sEt:-'^--
' rendam et Det»^stabilem
^ glise A&iiassinaiion, et .i..v...--«
* Citius exequeiidutn ct anno ac Divers
* Diehus et V icibns apud parochiam pr
*■ ill Comitatu piudicto proditorie tractaveruiil
* propostierunt et ConsuUaverunt d,e viis i
* et mediiB ac Tempore et Loco ubl quaii
Vr
for High
^ ftidliler et <)UOfDndo Dictum Doaiinn na Repeal
* sic e% m^ditd facilius Interticerpnt."
SrJ5. Shower, There is an end of that, now
Aft. Gin. No, sir Burthnloniew, yon mis-
Itkr, there \9 no end of h, that ia done at the
tmm tiiDf^ with that wkiich tbibws.
Sr B. Shauer, No, it is oot iJie same overt-
Mi; but Irt bim ^o on.
€L tf Ar^ * Et Cons^iiscrtint Apfreaveruiit
*fi A^os^ruiit (jutxi ijuariraginla Homines
" lTe«.*
' B. Shotrtr. Weill vou DWil read no fur-
' for our objection. \Ve say there wants
t^mir4 * Proditone:* for there are tvvo uvf^ii
Kts lh^ oi>e is, that they Iraiioroiisl y did coii-
iulld^the ways and means haw to kill the hioj^,
iad that ovnt^act we agree to he vrell luid :
fcni i' - they consented and agreed Ibiit
lfc«»' lie fort)' raeu, whereof thciie four
ilmAk be four, bat do<*8 not say they Iraitor-
•i^ iigreed ; a/>e not these distinct acts *
m. Phipps. Surely, my lord, they are dis-
^ikta4:tf ; for this part of the bidictment upon
vfaidi ttir BariholoEnew grounds hh objection,
It tint overt < act of whkb the iist in Mr. K<*ok-
mmd^ Case was ui^'ed by tbo king's roiSusel,
md agreed by tlie court to be an evidence.
Tbeo the jury against Mr. Hook wood t^ame
^ % aud deb? (tred in their vejdiet, as it is in his
H ttmi^ then allerwards the court wetit on thu^ :
^L^i^G^n. My lord, the objection is, that
^HHHbie* is not inserted into that |ninif nlar
^^mt^nt the indictment, which shews thdr
fOti f ment that there bhfmhl he <brty
•m, ihe four named in the inditinirnt
•WvUibefuur Now your lordshlji observes
itov the indictment nm<i^ it is for €onipas«ini^
io^wairintn^r the d^^aih and destruction of the
fi aft*i »i >ietB forth for this parpuse^ thai to
compassing and imag^inUig', they
iraetdverunt et consiiUaierunt ife
fn Modis' bow theyshoithl kill the
^at which immetl lately follows
i>, tji** ^mrlicular method and means that
verc agreed ujwn, that is, t!iat there sliould
befbrty men. Now this is the strangest sojr.
'911 that ever was, when we have lict
^ fiiai fi iljoniusly they did so afjree of the
•i, anf] then set forth the parti-
tbat here must he * proditorir*
ai. Thia is such a construction us
nt adoiire how it couhl come into
Wf UQcV head. It iif part of the sentence ; tor
ilMotber part^a<? we have laid it^ i^ not com- '
ylBia before: it may be it might be sufficient
; setting' forth the finrttculnr waysi and
but when it is set forth it is part ot the
bt iuid refers to the tirst begin i&ing^.
-L C- J. Aye, sure it does.
Ait, Gen, 'I caunot tell what they vi onld
Wn^, unless ibey would have us repeat the
•wrt * proditone^ in every line.
StiL ijcii. Or before every verb*
Ifcr U. Shmctr. So ; but I think it oyght to
N npcileil tt erery overt-act.
A. D. 1696.
[■
sio
[ Mr, Conyfrs, If your lordship please*:, after
I thai they have set h^rlh that this was th^ par-
ticitlar method and way ag:reefl uj>on at their
confvdtfttionf that forty horsemen or ihere-
ahout!i should q;o about it, of wliich the per-
sons indicted w^r% to be four, it goes on, * Et
* Quitrbet eoriim protliloric super se Suscepit
* esse tmum/ there it is-pat in, and it ajijieari
to be as particular as possible can be.
Mr, Cofvpcr. i»u* Btirtholomew Shower says,
limt when we have alleg-ed that they did trai-
torously treaty propose, and consult of the means
and ways uf killing* the kin^, there we have
done the sentence, and ma^le that one overt -
act. Now h(nv U the sfnlence done? Tlie
next woj'd is a conjunction copulative, ^ et coit>
* scoiiferunl,' See. And what is the use of a
conjtinclirin copulative, but to convey the force
ot^ the wonls in a fornoer sentence to the sen-
tence following-, and to prevent the repetition
of every woril iu the suhsetjuent sentence that
wa.s in the precedent? But it is plain, they arc
both one anti Ihe same overt-act, andth^se'sub-
5e(|Ufnt words are only an explanation^ more
partictdarly of the overt-act ^^ct forth in the
piiet*etlent wonls.
H(r B. Shower. In answer to thaNtbat has
been said, if they shew me any precedeni,
where aniudiclment has lieen for rdgh-ireason,
settingf Ibrth several overt -atts, and nut the-
word * proditone* bet to every ovt»rt-act, then
they answer my ohj*5Ltioij. 11 lb c word • Quod*
bad come in, that would have made Iheni dis-
tinct to he sure ; and I think ihcy are as dis-
tinct aci5 now * suppoi^e they had concluded at
the end of tht! word * Interficereut/ that bad
been a good overt- ntt ; 1 am sure they will
arfri^e to that : and if it he so, then the oibcv ]«
a good oveit-act too, For it is n distinct thin^
friim that which was a pert ect sentence before;
and it either rei^nires a * likewise,' or the word
* proditorie* most be repeated. They have not
so much as sai«) * similiter Consenserunt/ or
* simili modo ;* there is an * et^ inileed, but that
does not ^o cou[de the sentences together, as
not to make them distinct acts. There arc se-
veral ' els* ibrough the vUjole indi"iment, hut
that does not, as iMr. Ci*wper would have it,
couple all tojifeiher to make one overt -act.
Mr. Phipps. My lord, if what Mr. Cowpcr
say « be allowed, (viz.) that the * et' makes it
one intire seott'Tice, tbrn there is no ovtrl-act
at ail ; for after the treason alle<;ed, the clauses
are coupled to one another by an 'et,^ und con-
sr(|ue4itlv, by Mr. Cuwper^H way ol" orijuing,
the ivbole inilictmcnt is but one entire senteiice*
L. C J. f do not utiderstaod your meuning'
as to that; they tell you * proditorie* is ai-
leg'ed to the consulting^, conirivini; and ag^ree-
iiig', tlien they tell } on what was the subject
matter of that contrivance and agrt'ement, to
assassinate the king*, at}d in order to tint they
agreed there shotdd be lorty men ; is not that
ffood enough, without * Proditone* to every
line ?
Sir B. Shoner, No, it is tiot said in * Ordine
^ ad/ there is no such iUit^ v ^^ ^^^"^^ ^^1 ^^
231]
8 WILLIAM IIL
Ttial (ifCharUt Cranbume,
[SSt
\
cunBitlt of tiie way* aod means, and did agree
tliat'40 hursemen titioutd do it, and ailerwai-dii
did 8ij:iee in provide horses and in^truraenU of
^nii'« Now ihat being- with a * QuodqueV tlicy
Kmnktflanew overt-act; but 1 caooot un-
Und Hliy ^ Uuodque' is not as much a
• C(»j>uUuvt* as ' Et,* and the one should not
XiA'v^ Ihe same f flfect as the other.
L. C. /. Fir*it, it letls you there was a cou-
cuU and a(r^ri'(>uneat to assassinate the king;, and
for the acoompUshnient of Uie said assassiua-
lioij ; at ter wards * cisdetn diect Anno Proditorie
*' Tractavcruat et ConsuJiavenint de viis et wo*
• dii»/ huw iliey shoo hi kill the king.
Hit' B, Shtitfcr, Thut is one overt- act, say
ive, and thei e yon should hio\u
L. C J. * tt Consenserunt et Agpreaveruni
' qnod quadra«^int:i Homines,* Ike, it is att at
lbi» snme tirne^ and must be intended the same
consult and ronirivance^ that lliey consulted
of the ^'£iys and nteansi and then agroed so
many men shouhl be provided*
BIr. J^hippi, No, u»y lurd, we say that is
a&oiber overt act.
L. C. J. Trehy* It seems to me to be a spe-
cifying and [lariicniarisini; the ways and means,
that I hey Itud consulted of, and concluded on.
fcsir B. Shorter. If it had been a sjiecifyin:;,
it bad Wen much better to put in either* then
and thei^>, or tliat this was the result of the
consultation.
L. C J. Tr€hy. It docs seern to me so, that
U was the nfsult of the consultation, and tl is
\Yv\i enough.
L, V, J, You had better have saved these
kind of extt»ptions till the trial was over.
Sir ii. Shower, But, my lord, if there W
vcie oveit-act ill laid^ 1 sulnnitit whether they
cflit ifive any evidence of that overt-act.
L. C. J. rrd>y. No doubt of Ihat, they can-
not ; but we think it is as well laid as it could
bt! laid.
L. C. /. Truly I am not well satis^fied, thot
it is necessary after you ha*e laid the * P;o-
• ditorip,' as to the jiarticu'ar treason^ to Jny it
iigain to the overt*act. For (he ovt-rl-aci is
but evidence of the treason : the treason its^elf
lies in Ibo compastiing', which is an act of the
tiuind,
L. C J. Trihjf. You cannot indict a man of
treason for aN«iiasi»ioating or killin^f \he kin^,
but you nmst in every such case frame tlte iii-
diclmenl upon the ait^cle fur cotnpa^^iuu^ unti
iinaifinTnt^ the de:nb of the kinj^ ; wliich mu^i
{\e laul tH he dnne tniiiurously. Tlien^ when
afterMardii you say the penittn aceuHtd diil
wound him, or iinpri^iau him, or consult and
a^rre to as>>uSKiuate hiiu^ or did aetiially assns-
sinaie biiUj ihipse are hut so mitny oven- acts *»f
c<nmw*sinutlif- di'alh ; and you hav.ut; fir^i said
that Ur did "" Prodiiorie' cuuipa^s ttnd tmujj^iue
the kiuji's death, you have ihi'rehy sheivn that
you char|(p him hiiIi a yi eater otS-ot-e ihan le-
Jooy (whici^ my Jurd Coke says is the use td' the
wiird ' Pio<*it<»r*ef) and that heujy^ thus iUmv,
I do nul a^ip eheud it to be nece&'sa.) that ton
should add ' Prodttonta' to all this rest 4>f the
following particulars; for they are only ex-
teroal discovt rit^s of the inwurd ireasuu ; and
more properly deemed to be evidence of lhe<
treason, than to he the treason iiself,
Z. C. X Tiie treason ti ooosuminate in th#
intention ; besides the words ol th« staial
make that the treason, not the overt^act, thai
is but evidence, and su it uas lield, (not u|iua'
this exception, hut ui^ui the reason that my
lord speaks ot) in the Cuse of the Regicides of
king Charles the First, That the indict
should not he ft>r killing the kin^, but lor com
passing and imagining his death, and the kilt
mg was alleged as an overt^acL
iSir B, Shtmer, It tnust be so if it were fnr
levying of war,
L^ C. J. Most true; for levying the war ii
the treason ; hut in this case we think tt isnl
exception.
Ail, Gen, Then let us have the Gfih.
Sir iJ. ShofL^r. Then, my lord, here m
ther thing. It is a question wheiher thert
any overt^act prcsenteil by the jury at alh
indictment says, ^Jurauurspro Uoinioo
* praeseniaut,*' that I hey as false trail
ciimpftss the deatli of the ktoii aud the sk
of his subjects, and they did meet, and
and agree how to do 'it, * Ht iidem Cii
* phor us Kntghtley' and the rest, to fnltit liiflf
said traitorous inlenltons and imaginations diiJi
aflrr^i ard'^, the lOlh of February, buy
ami horses. Now our objection is, Tl
does not appear, that any one of th
acts are the presentment of the jury ; h»
niissiim they oug'ht to have bi^f^uo it
eiiher with a * Uutwlque,' or somethi
should ba^e rt^ferreil it to the first, * Jui
* praasentun!,* or else ihey must have
quite again, with a *JurHlore» Uheri»is pr»;
» sentant,* and not have coupkni iheit* as thii-^
is with an * Et.* The mO!»t lorins begin wttll
an * ullertu!ii prtesenitirt,' but here we find 00
overt-act is so introduced. They might pre*,
sent part, mud not pre^^ent the other |mrt, f
any thing that does appear. Every i'
ought to be laid positively, 11s the jury 'a «hetii«h
it may I)e only the cleikS saying, and
jury's, lor any thing that does appear.
liirdslH|» remetnberti the case *>i tlie ki
Troljrid!;t\ upon a Writ of Error t# reverse
liulgmeut lor L't eiting and continuing a civti
agftiuNLihe hn m of the ststuie; now * Coi>tii
* IriiiiiHni SiatuiL^ uas in the beginning ol
indicuiient, bnt not in the couclusion ; to thi
erct'iing but not the t'ontmiiing. And ibotii|^
there uas there ' Juraiorrs idterius dicunt/
Wds not * iiUpf r Sut^ninieotum sunm/ and tli
did not aaVt he did continue it against the
tute ; and there being no hirmul presenin
ilial he maintaiued tliL* cottage noLwhhstamtii
the act, ^ Et' did lAUt so cou^ile it to ibr
l^art, us til mnke it a gooti presentmvnt. 8^
we Scjy in iUlh case, thi» is a tault, aul ilitlWeoli
I torn nil the common forms; thiMe ougut ••
be a diref t presentment of each ovfitact,
not toupJMl by an * EC For * Lt' wdl not d^
It; tor It is a distiact overt* act cf ery
£3SJ
for High Treason.
sbAald bare bera ' El quod Consul tavenint,
•qiKKkfue Ai;rem«eruut.' that a certain nil iiiber
fbiHiId do so and iio ; and to be sure, it should
bite been «o at the last-overt act, which is
mIv * El lidem Christopborus Kni^^htle)',' ^cc.
did* buy arms and horses. Nutv this last ' Et/
btug a hMMie voojunctioii copuative, in com-
■oa sense oug'ht to refer to that which they
bal a^TPeil upon, tor that is last inentioneil
ibere. and tbe iiilural sense leads thither, and'
Mktttbe lieginningof the bill ' Juratores pre-
*iattiiquod.'
Ik.tkippM, I shall not trouble your lord -
^ farther ; they ought to hare put in a
•fMqae,* or an • Ulterius piasentant.'
Alt, Gen. Where would you have tbe
' Qasdaue,' or the • Ulterius pnesentant ?'
Nr. rhipp8» Either to every overt- act, or
tf Inst to that last.
Ait, Cen, The indictment sets forth, that
Ibr; committed such and such a treason : their
^^jnsB is, tbat * quodque' is not put into every
Sfiati; and our answer is, that the first
'fMrf* fovems all that relates to tbat treason.
kaof be, if there were too distinct treasons in
AtUctnieDt, when von come to set forth tbe
-nand trg—oPy you should say * Juratores ul-
'Ins pnesentant' the second treason ; but the
•Nil-Mts to proTe the same treason, are all
pvlisl'that treason, and make bat one species
tf fenaan, which is the imagfiniog tbe death of
fclai^. There is the treason ; and to bring
illi fasi» they did so and so : this, roy lord,
■■Hhe part of the finding of the jury as well
m the treaaon itself, of whit;h these are the
yi ilia. Bot then if yon will lay the levy-
■C^w in tlie same imlictownt, then it may
li^ aost say * Juratores ulterius prasen-
*M amd,' &c. But it bad been a strange
iiaM^ to aay, ' Juratores ulterius praesen-
'^'sQch and such overt-acts: for the overt-
Mis aat a further indictment, but only a set-
laigftsth tbat which is evidence, upon which
IhM fcnod the indictment for treason.
ML Gen. "What the indictment says, is as
4rci affimuOioD as can be all along of the
pascataaent of tbe jury, that tbe orisonerand
tfbers did compass and imagine tne death of
lbs king ; and to bring it about, they did con-
aritlngelher, and did agree to make use of such
■d auch means, and were to have a party of
40 BeOv and they bought arms and horses.
Kow it does not repeat ' quodque,' or ' ulterius
' pwsentant quod,' to everv one of those sen-
Ince*, that tbey did so and so, and tbat tlicy
Ai so and so. Now I would fain know tlie
tferrace between saying, and they did such a
Aiag, and saying, and that they did such a
ttiof. Tbat is all the difference that tbey
thiBk to ovcrtanf this indictment for. The
imiiting of a ' Juratores ulterius pnesentant,'
aartainly is notliing ; for tbe first presentment
laas through the whole indictment, and there
4ta not n«d an * Ullerins.'
Sir B. SkoKtr. Certainly there ahould have
ban a ' dnodqueP at kaat.
L.C.J. No, UHlaadi I thud^ it ii better aa
A. D. 169& [834
it IS, than a^ you would have it ; because the
first * Qu(»d' goes tliro:i{{-h tiie whole. That in
onler thereunto he di'i «<o and so ; would yon
. have it said * et qno'l' in order thereunto he <hd
so and so ; bii though that may be good sense,
' 1 think it is not so jGfood as the other. This in-
' dictinent is lur one surt of treason, and ibat is,
i for conipaiwin^ the death of the kinif : and it
,' is, 1 think, more proper to have but one
* Uuod,' than to have murt' ; for it makes the
whole indictment more entire. As to the * Ju-
' ratores ulterius preesentant,' tbat is never
proptr, where the species of treason is the
same: fur, indeed, if there bad lieen two dis«
tiuct treasons, the one for compassing tbe death
of tbe king, and the other for levying of war,
in that ca^e you must hx'iufr it in by * ulterius
*' pnesentani :' because they are two several
offences, though comprised in one bill, and
tlu'y are in law as two indictments. And so it
is in the case that you mentioned of cottages :
it is one offence to erect a cottage, and another
ofFence to continue a cotta^^e, and tbey are to
have several punishments ; and because they
there jumbled them both together in one in-
dictment, that indictment was held to be
nought : for, by law, the indictment for erect-
ing a cottage, ought to conclude * contra for-
* mam Statuti ; and then the jury must begin
again, * et ulterius prseseotant quod' tbe cottage
was continued against the form of tbe statute :
because they are several offences. But here
the bigb-treason is but one and tbe same of-
fence, and the other things are but overt-acta
to manifest this tre&i»on, the compassing tbe
death of the king; and truly, 1 think, it is bet-
ter as it is.
Mr, I^hipps, I have seen several precedents
of indictments, where the several overt- acts
were to the same bigh-treasou, but still they
had each an * ulterius prseseutant.'
Alt, Gen, I believe it is hard to find many
indictments in tbe same words: I am sure all
are not.
X. C. Baron, (sir Edward Ward). Is it not
as great an affirmation to say, and they did
such a thing, as to say, and tbat tbey did such
a thing?
L. C. J. I cannot reconcile it to my reaaon,
but it should be as good sense without * that' aa
with it.
L. C. J. Trebtf, In a long deed it begins,
*This indenture witnesseth tbat* tbe party
granted so and so, and the party covenants
3ius and thus ; and so it goes on commonly,
without renewing the wonl * that' to tbe sub-
sequent clauses: but yet the first expression
(This indenture witnesseth tliat^ governs the
whole deed, though it be many skins ol' parch-
ment.
L, C. J. If yon begin with an indentore, yoo
begin, That it witnesseth so and so; without
renewing, unless it be a very distinct thing.
Sir B. Shower. My loni, we think that simi-
litude makes for us. A. B. covenants so and
so in a oonfeyance, and then further, that so
and 80.
I
S WILLI A \r IIL
' L. C J. But there you fe«tritin thai in ihe
beginning' of tlie covcuatjt to every particular
in that covenant.
An, Gen, Will your lordship please to cull
ihciury now?
L. C. X Have you a mind to go on with the
trials or la go in ilmner?
Att, Gen, I MitJfe your lordship can try
but oQe more to uiy^lu^ km\ that may he us welt
after iliuuer ns before.
L. C. J. Well, ilieot adjourn till five o'clock,
and in tlie mean time, you keeper, knock off
»U*r prisoner's fetters.
Keeper, They shall, my lord*
Then the Court adjourned till five o^clock in
the atlernoon, tt betug thea about three.
Post Meridiem, the 2lst of April, 1696. The
Court returned, and was resumed about
SIX in Ihe Eveuing*
Ci ofAr, Keeper of N'ewi^nle, hrin^ Charles
Cranbiirnc to Iho har, (Whicli was done).
Charles Cranhttrue^ hold up thy hand. (Wliirh
he did). Those good men that you ah all hear
called and persoually appear, are to pass he-
iween our ioveiet^n luv*! llie kin^ and you,
upon trial of your hie ajid death ; and there-
lore If yon will chalU^jig^e theni or any oi' theui>
your Utoe is to %^isk imt^i them as ihey come
10 Uit' book to be fiworu, and before they he
sworn.
Cranbmn>f, IWy lord, I hunitly desire I m^y
have pen, \i)k% %nd paper.
CquH. A)r» five. (Hehadlhem)
€L ff Jr, \\ here i* George Ford ?
Cf*Siei\ Vous avez.
Vrntth, 1 challenge hlrn.
%ofAf\ William Underhil.
Cranh. I challenge him,
ffCl.ofAr. Wilhaiu Withers,
[Jrfl«6. I challengii him.
Ir. Phipps, If your lordship pleasesi, those
that were of the last jury I hop*? shall noi be
called of this jury ; tjiis prisoner heia^ tried
upon the same indictment the lust was.
X, C. J. If thty be not, it shall he in ease to
them, but U Is not ui favmu' of you.
Mr. F hip pi. We humbly conceive, having
given their verdict upon the same indictment,
they are not such indiftercn t persons as the law
intends til e}^ filioiiUl he, mid thiuk it is good
rcajon they should not serve upan this jury.
L, C*JJ^ What ihnugh it be upon ihc same
indictment ? The evidence is not the same ; for
tbey are distinct olfenc^^s.
Mr. Phippi. I do nut know ulielhcr it he a
good cause of challenge, but submit it to your
lordship.
L, C. J, Well, you may doubt of it if you
please, and try tbeWceptiuu.*
* 8ee the seventh Resolution lo the Case of
Ihe Regicides, ante; and Peter Cook's Case
tn die same year, infra] and L#cach's Haw*
king's Pleas of the Crown, hook 2, chap* 43,
seel. 29. i
T.
Trial qfChnri^s CrSHhuitet
CL of Ar. Thomjiit Tr'^nch.
Cronb, l challenj^e him.
CLo/ylr. John Wolfe.
CrttnL i challuni^e him.
CL of Ar, James Bodiugtoti*
Crank I chaUenge him.
CI. nf Ai\ Jonathan AadrewR. {lle4lidtiQi
appear.) Jnhii Rnymond.
Crunk I chaHenge him.
C/. of Ar. GefTTf^e Hawes.
' Cranlt, 1 challenge hiui.
C/. of Ar, Francis Barry,
Crunb, 1 challenge him.
CinfAr. Arthur Bailey,
Crank 1 challenge him ; he was upon ill
last jury.
L. C. X Tliat is no reason i will you ch
lenge him peremploiily ?
Cranh. 1 do challenge htm.
CL ofAr, John Caine,
Crank 1 do not except againU hini*
CL of Ar. Hold Mr. Caine the hf>ok, cary
Crycr. liOok upon the prisoner. Sir,
shall well and truly try, and true delir
make between our so?crcign lord the king i
ihe prisoner at the bar, whom you shall hi
iu cliarg^c, arid a tnii* verdict give, accordingi
your evidence, so help you God.
CLnfAr Thomas Glover.
Crank \ challenge him.
CL of A r. Doru I er Sheppard . ( H v 1 1 id I
ap(ie4ir.) Ceoige Tredway. (He did noi i
peur.) Matthew Uateman. (|{e did not i
|»ear.) Timothy Thornbury.
Cranb. J challenge him.
(7. iffAr, Jarn^s Part he rich-
Crnnb, I challenge him.
CL 'ifAf^ Thtunas Freeman, (He did i
appear.) Ro licit Biedou.
Cnmb, t do not except against him. (E
WAS sworn,)
a. ofAr. Joseph Blisset
Crank I chalk'oge him.
CL ofAr. TimoUiy Laimo, (He did
appear ) John Harris. (He did not appeari
John Bil tiers.
Crank I have nothing to say against hill
[He was sworn.]
CL nfAr* Richard Bourn.
Cranb, 1 do not except against him, [H
was sworn.]
CL ofAr. George Carti>r. (He did not ap
pear.) Franris (.hap man.
Crttnb. 1 challenge him.
CL of Ar, AlexanikT Forth.
Cranb. 1 challenge hi in.
CL lifAr. JNiicholas lioherts.
Cmtih. I have nothing to say agaiost bifl
[He was sworn.]
CLof Ar. Ti 1 0 mas PI ay stead .
Crank I challenge him.
' CL o/At\ Wjlham Atlee.
CranA. I chiillenge him.
Cf,ofAr, Johu 3larsh. (He* did not ap|
pear.) Anjre^v C«j«ik.
Cnmb. I do not except against him. [I
was sworn,]
k
fol^ High Treason.
\r. John lUU.
I challenge him.
(r. William Partridge.
I challeoee him.
Ir. Peter Lerigne.
I cliailenge him.
\r. Thomas Moody.
I challenge him.
!r. Richard Belinge.
I challenge him.
Ir. Thomnai^vaiLs.
J do not except against liin. [He
"•]
(r. Thomas Ramage.
I have nothing to say agaiust him.
iwom.l
[r. Edward Townseod. .
I challenge him.
Ir. WilKam Guoson.
I cliallenge him.
[r. Philip Wightman.
i say nothing against him. [He was
Ir. John Wyboamc.
S&over. I hope 3'ou take an account
UengeSy Mr. Hardistey.
. Nay, you should take care of the
I, who are his coousel : if he had no
ra would take care of him.*
Here is Mr. Wyboume, what say
I have nothing to say. [He was
Skowcr, I hope your lordship will
'coousel for him.
'. We are to be equal and indifferent
the king and the prisoner: but you
mr his counsel by |aw, ought to take
iW lose no advantage.
Jr, William Strode.
I bav^ nothing to say against hidi.
iwom.]
Ir. Dauiel Bv6e]d. (He did not ap-
Icfwunin Noble. (He did not appear.)
labile.
I do not except against him. [He
■•1
ar. Cryer, countez. John Caine.
Ar. Thomas White.
Twelve good men and true, stand
I lod bear your evidence,
lanies of the twelve sworn were these :
iiae, Robert Bredon, John Biltiers,
Beam, Nich. Roberts, Andiew Cook,
Evans, Thomas Ramage, Philip
an, John Wyboume, William Strode,
■tt White.
dr. Cr^er, make proclamation.
• Oyez. If any one can inform my
tkiog'itjagtioesdf Oyer and Terminer,
'•Sdjeaot, or the king's attorney>ge-
^ this inquest be taken, of the high-
Hfereof ibe priooner at tlie bar stands.
tKsictoIha Cise ofDonPantaleon
A.D. 1696.
[23»
indicted, let them come forth and they shall be
heacd ; tor now the prisoner stands at the bar
upon his deliverance : and all others that are
bound by recognizance to give evidence agajnjit
the prisoner at the bar, let them come forth,
and give their evidence, or else they forfuit
their recognizance.
L. C. J. Mr. Attorney, do you think we
shall be able to try the other to night f
Att, Gen, That is according as this holds,
my lord.
L. C. J. T speak it for the ease of the jury,
that they might be dispatched, and not attend
another day.
Alt, Gen. I doubt we cannot try any mora
than this to night.
L. C. J' Well, it is no great matter, it will
be but a morning^s work ; it may foe too ffreat
a stress and a hurr)[ to do any more to night ;
and therefore we will discharge the jury for to
night, those of them that are not sworn; but
we will be here to-morrow morning by seven
o'clock ; and therefore, pray, gentlemen, attend
earlv.
CL of Ar, Charles Cranbume, hold np.tliy
hand, (which he did). You that are sworn,
lM)k upon the prisoner, and hearken to his
cause. He stands ilidicted by the name of
Charies Cranburne, late of the parish of St.
Paul Covent-garden, in the county of Middle*
sex, veoman ; for that he, with Christopher
Knightley , late of the same parish and county,
genUeman, and Robert Lowick, late of the same
parish and county, gentleman, and Ambrose
Rookwood, late of the same |)arish and county,
gentleman, the fear of God in their hearts not
having, nor weighing the duty of their alle*
fiance, but being moved and seduced by the
instigatrau of the devil, against the moat se-
rene, most illustrious, most clement, and most
excellent prince, our sovereign lord, William
tlie Third, by the grace of God, of England,
Scotland, Fjrance and Ireland, king, d^ender
of the faith, &c. their supreme, true, rightful,
lawful, and undoubted lord, the cordial love,
and the true and due obedience, fidelity and
allegiance which every faithful sul^ect of our
said lord the king that now is, towahls liim
our said lord the king should liear, and of right
ought to bear, withdrawing, and wholly to ex-
tinguish, intending and contriving, and with
all their strength, purposing, desiguinc^ and
conspiring the government of this kin^oom of
England, under him our said lord the king that
now is of right, duly, happily, and very well
established, altogether to subvert, change and
alter ; as also our said lord the king to death
and final destruction to put and bring, and his
faithful subjects, and the freemen of this king-
dom of England into intolerable and most mi-
serable slavery to Lewis the French king to
subjugate and enthral, the 10th day of Fe-
bruary in the 7th year of the reign ot otur said
lord the king that now is, and divers other
days and times, as well before as after, at the
parish of St. Paul Covent-garden aforesaid, in
the county aforesaid, falselyi maliciously, de*v
tSS] 8 WILLIAM IIL
X. C. J. But Ihere you reKtmiD that in the
heglnniiig' i^f ibe covenaut to every pmticuUr
in that covenatit.
Alt. 0 en. Will your lordship please to cult
iJiejury now ?
L. C. J. Have you a mind to gpo on with the
trial, or to go to ilinuer ?
Att. Gen, I belief e your lordship can try
but one more to night, and that n\iiy be us well
After dinner as be fore.
L. C. J, Well, then, adjourn till fire o*ctock,
and in the mean iiine, you keeper, knock oCT
the prisaner^s fetti»rs.
Ktcptr, They shall, my lord*
Then the Court adjourned till five oVIock in
the ifclVemoon, it bein^ then about three.
Post Meridiem. Ibe SUt of April, 1690. Ttic
Court returneiJ, and was resumed about
six in the Eveuiun^*
Cf. ^f Ar, Keeper ol Ncwj^ale^brin^ Charlen
Cratihurne to thi; liar, (>Vhich \\i\K ilunc).
iJ bar lea Crnnhurur, hold up thy hand- (Which
lie did). Those good mm that you h\\\\\\ hear
calletl and jiersouully appear, are to pas^ be-
liveen our soveieit^n hird the king arid yoUi
upon tritil of your life and death ; and there^
lore if you will ihallt^ng^e ihem or any of them,
your time is to spe^k unto them as tliey come
to the book to lie SMroni, and before they be
sworn. /,
Crunlmrut, My lord, I humbly desire I iii§Yi i
have pen, ink, and paper. ' ,
Court, Ayr. n ye, (He had them)
C/. (fAr. Where is George Ford ?
Crr/er. Vous avez.
Crnnh. I ebatleoge him.
Ct, o/Ar. William Underhil.
' Crnnh. I choJIen^^c him*
CL (yf At\ Wiihum Wilhent. ^ ''
Cranb, 1 challenge* him.
Mr. Phipps. If your lurdship r
(hat were of the la&t jtiry t Is-
i-alied of tins jury : »!ti^ pri-
wpon the same '"'
'x.c.j. 11 ;';;
them, built k ut^t ii* U\'
Mr. P hip pi. We hun»i
Trmt qftfi
a. qfA
Ctvnk
CL^fA
Cranh,
Crtmb*
CL ifji
ftp|M!iir«)
Cranb.
CL ^A
' Cranb,
CL of A
Cranb,
CLqfA
Crank
last jiirv.
L CJ
pivcn t^if i(
ijiey are ii
intends thtj [
reflion they ah <
Not liui
upon G(
are ; yn
i^'tiiltv 0
% of the
\mn\ the
J, «nd murder.
lordship,
LC.J. W
please, luul If
f
• H^ thf
the Re(;i'
in the m
klna'j/
(ir, a^(ain«»t
lAxI tiid caiivci with aod cad
eo^tte the nation to Ij^wIh the Frenoh
f: tnil lb** intlu^tment set? forth^ iUm the
nwr nt the bar <JiH t(»r ttiin purpose »n^t
bdconAiiit uiib st'Tcral fal^ Iraltons to the
«ri4 g«>%'erii*ii€in» ol' the v%ays, mnoTier,
rmeftftft itow, aii<i iIip time atitl place wh^n
inri whf^re to tt»iissinal^ the king'; md at
leoglh tlt«*3r ti|n*e«(l that iorxy horse men shoitld
|W logrtb«r, and set upon the king" in his coach,
ii he nftum^l lr«Hfi nuniini^ ; some to attack
■j^ccv^cb, IV bile others set upon the -(ifuiiriis.
^R\)ff mcitcttnent rjoes further ulmrge him with
^Ffeltoi^ hordes and amis, and pariicularly witli
B Mrr?iiu» a list ot the iissussm«lors irom one
i %ta»$iner* These are the particular thiugfs
I in tl)c indictment, and to this indict-
t Ue has pleaded not i^njlty ; if we prove
lit &cl^ gvtiiletuen, we do not doubt your
Au. Geft, May it please your lordship, and
ym ventlcm^n oj't lie jury ; the prisoner at the
Wf Charles Cranbnme, i« indicted for hi^^h-
ttWMi. tn cAnjpiMi!»iiig and iinsifriijHjg- ibe ileath
rfA# kinjjr, Ointleoien, the overt - acts JJiid
• id* imiictment to prove the prisoner guilty
tn; that be was at fieverul meeting's and eou-
MiHatioBaalKiiit the manner of puitinpr thia de*
ifA In esyecoiion ; »t which ni«*eting7s it Has
«frt€i1, ih«t there «hotdd b^ ahiMit forty UoiTse-
■a rr ■ prepared, and armed for that
fVjKt' y did provide hcii-fies and arms
^thmx very iiiingf, and did agree to put it in
(fi«ll»nefi(. the endence that you will hear
fndUfied against the prie^ner at the bar wilt be
^ tUi nature : You wWl henr iroro the wit-
liva^ tbat about Obristniaa lust, or the be-
|Ma( uf Jafmarv, sir George Barcley did
MM ifw fro*n France from the late kin g^
^^Agpk U> ^ h<.io be was an officer iu hta iruartlst,
^^^^p on for attacking- the prince of
^^H^p^ \ M)|r wur upon bis f»erson. lie
^^Eiroir«r MU>nt thnt time^ and several troopers
^Vlh« lAte kin*r James's piards, to assiBt bim
^BlKat hartmruutf conspiracy^ W hen sir Geor^fe
Bwcky c«iiie ovijr, he did acijuaint with this
^ iBMf a several persons in £n|>land, that he
itnil^t proper to Ite accompticei: wtth him in
k; pinicaUrly captain INirtet, Mr. Charnock,
K WdJinni Parky OS, and s**ver?il othcru wlio*e
Biiaai you wdi liear of, and they had several
iMetiiilfv ubout it the he^iouinj^ of February,
ai capt. Porter'ft lodginc^s, at the Nag'ti-Head
11 Covent- garden, at the Sun tivern m tlie
luiiid. at \Ur Globe tavf-rn in Hatton i^arden,
iiidt^ r ptsce^ where tlvey consulted
^ wi ,1 they mi^,'hl altenipt and ac-
iJiA Uoofly desi^fn.
en, you will hear, tliat at these
C' f ik£»4;.^ a was pro|K>»ed, ihat they should do
iib^ »iid.ofcade A*t the king^ caine from Rjch-
\ If hither ho used to go upon
' rs were for doint^ it on this
" A ^ tlicir opmrons bcinqf
:bt necessary to find out
the best place; and in
they employed cupiain Porter,
Mr. Kntjyhtley, and Mr, Kingf (wIto was exe-
cuted) to view the L' round; and accordingly
thpy went, and pitched upon the lane betue^o
Brentford and Turnham*^rer»n for this pnr-
|K»se. as the moat i-onvenieni phice r nnd bar-
ing m\ dune, they came back, and g^ave an ac-
count to those that had appointed to niet^t them|
to hear the success of their expeililmfs, t%i the
Nat(*»'Head in Co vent- garden ; and iu that
jdace, yoti will find by the evidence, tbat thofe
pcrsonx who \iere the beads of the conRpiracyt
undertook to tind their several proportions of
lUfu, for whom they would uudeilake that
would gn with them, and he concerned in this
desij^n. Sir Georeje Barcley was to furnisli
about twenty. He had the command of the
IrooperM tliut catue Irom France, and those
other oflTicers that came thence were under him.
Captain Porter was to furnish seven, Charnock
was to furnish eig-ht, .sir William Parkyns iitt«
lo furnish ftve horses and three men, and^ I
Ihiukf Loivick %vas to lurrush some njor<* : in
the whole niamber they i^eckoned there sJtoutd
be about Coriy.
It will appear, ircntlemen, that the prisoner
at the bar, Mr. Crnnburnc, was one of the men
that captain Porter untlertook to get, and en-
jjai^e Til ibis rlesijjn ; and accortlingly captain
Porter difl acquaint Mr. Cr^nbnrne with it j
and he did undertake to be one, and lo be ready
to go with liim, attd be concerned in this as-
sassination. Yon will find lie was aeqnuinted
with it nliout the I4t!i of Febmary, the day be-
fore the first time tbat they intended to assault
the king : then he did umleriake aTuI ffgree to
prepare himself against the next day, Thyf
next day. winch was the 15th of February,
they had severat meetingrs, and they were
fiiakiu!^ )Freparatton in order to go out. It
happened, by g-reat providenoe. his majesty did
not go abroad that day, and thereupon they ttts-
pcrsed themselves ; " but they had meeiin;f»
afterwards, at which meetings the prisoner wus
E resent with captaij^ Porter, Mr. Peodergrass,
ia Rue, and several others that were conecrrred
in the conspiracy, |inriicularly the *ilst of Fe*
hruary, the day before the second lime they
were to have put this in execution. Captafa
Porter being at the Hun tavern, with several
other gentlemen, and they resolving to b*ve it
ex<;cuted the next day, if the king wont abroad ;
captaio Porter sent tor Cranhurue. and Kryei*
that was executed, and Kendvick and 8hfr-
boro, four of those that' he had undertaken for,
(of whom, I say, Cranburne, the prisoner at
I he bar, was one) and then he ucquainted them
that ihey were resolved to go on with it iha
next day. And then they agreed to be in a
reuiliness accordingly. The next duy the pri-
soner, with some others, met at Mr. Porter's,
where they were preparing l<* go out and at-
tack the king, and they had several diseourses
about the ways and means of floiuLf U ; and
particularly captain Porter at that time snid,
that he had a vi-ry good gun that held about
SIX or «igbt bullets, and thai Mr Pendergra^s
was to have, who was tn tlUfcltiUi& ust^j^^Ms^
8 WILLIAM HI.
I
I
I
i
S4S]
shoot luto tb« ooadi ; Mr. Craiiburtie was there
presettt at that titiio, aiid Mr, Cratiburne wait
employ eit f^^ticitlarly by copl. Porier tu carry
a lilt that IVirter wrilot the names of fiettral
tneo that were to act iu it under liim, atid tUh
he was to carry to Chttrm>ck ; Porter writ it
and guve it hittii and he carried it^ with dirt^c*
tlou^ to bnng it back witli the list of the names
of Mr. Cliartiock^ii men* Cranburne itjd ac>
cordin^ty at thai tliue carry the list of thtf
tianies to cnpt^in Charnock, am) brought it
kick, nitU at\ adilitluual hst irom co{>t. lJhar>
90€k, nl hitimexi.
At t)>at time, you will hear further, when
Craabutne hroui^ht tiie hst, he biou^ht an ac
count thill he heard the king did nertaUily go
ajirond : for Mr. Charno^k hail intelltL^euce so
noni i*hamber«, who lay at Kensington to get
Hlteilij^^eace: at which there via» lory ^'eat
i^joii'iu^ among alt that wtre pres^^nt aX that
t|m(*f hoj^io^ they sliould have an o|iportuoiiy
to put thi« execrable desig-n in e^ecniioa ; and
!|0 they prt^jiared all of tiicin to ga out. There
were sf.Teral inns in Turn barn- Green and
ilreiitford« and thereabouts, and tliey i^ere to
Ve placeil two or three m an inn, that Uiey
might be ready to get together v,hen time
should »f rvCt It hap^tcited the kijij^ did not ^o
abroad that day neither, there beiu^ some dis-
covery of thit» de»i^, and so ihey aid dt«perse
tlieinseh eif, as appretiending it waa discovered.
Gentlemen, it vt't[\ appear by levera) wit*
QessfMtt that tlie prisoner at the bar waa
engaged tu this horrid tieasonahle defsigo^
and IV aa to hare acted a part in it. We will
cail our wit^ies&es that will make ilie particulars
out to you, and we do not qnei^ioQ but you witl
do what ia right. First, ^aU caiti^io Porter.
tWhowasawom]
ea»e,eqpt. Porter,
gire the court and the jury an account what
3rou kuo^v of this wicked mlendett as^as^ina-
tion, and what ahar« Ifie priaoner al the bar
had in h?
Farter* My lord, hehre ihia wicked assas-
«inaiioD was on toot, the prisoner at ihts bar,
Hlf . Cranburue, was employed by me to biiy
irms ; 1 naeil to give him money t«) go to the
Irokers to buy arms at second-hand, a»d he
brought a sword-culler to me, of whom I
bought aibout tvienty s^Tords. And when air
Gaofge Barcley earue into England, and this
bMMOCSs vfm reaolved u(Hm, I acquitinteil him
with the deaign, and promised to tnount him.
He newer waa at any of Uie meetings with cap-
laio Charoock, ur George Barcley, or sir Wui,
Parky na ; hut he w ent to look for a horae, and
waa ready both Saturday a to so along with me.
Ou Haturday the 22d 1 aeot nim with a mea-
■age to air William Parky na, for the note for
the two horses, which he had promised me lo
furniiih lue with, out of his iive that he was to
furnJsb ; be came back again, and told me that
there was a messenger came and said that iha
king did go out, and he knew where to have
the two horises ; that Mr. Charnock was afraid
w^ shoulii not liave the fuU ouiuber of men,
Trial ofCharUM Cranbume,
aud desired me to tend him the naiDCS of i
men ; I did write a hst of the names
men, and 1 went aflerwards to the Bin
I n firing- garden » whither he was to
nie j he din so, an^h^ brout^ht back the list 4
my men, with tbe iBt of Mr. Chamock'i mi
written uoderneoth it, and at the aaicie I
news was brought that the king did
abroad that day.
X. C. J. Vou say, that before th« i
tiau wus set on foot, you employed hin tol
arms and horses ?
ForUr. Mv lord) 1 ac<|uaitilcd hini witbl
the Friday before tlie first aS^urday.
L. C. J. Vou said l»elore the
vou employed him to buy arms:
that ?
F&rter. I said before the a^saastnati
on f'»ot t employed him tf> buy nrms.
Itim I waa to be a captain In cobnel Park
regiment, and protntsed to make him my i
ter-tDasler.
L, C. J, Hew loni; ago waa thia ? Was i
week before the assnssiutiUon was OB fwif
FsHfr, He has known of my I
tain in coK Parker^s regiment thia two j
Ati, Gen, I do doubt, toy bird, he i
distinguish the times when be bou
arm«,and when the assasii^ation was,
L. C i- Yes, yes, he <)o€9 imiw ; I mih
Crebended him at tirst, and thought b« tiii
ad employed bim to buy arma a w«ek f
the assassination was on loot ; but he
wtui a Ion gar lime.
AtL Oen. 1 desii^ wy l<Nrd, He HttJ
aaked what lime he bought arms before T
sassioatiao : when was the last time be I
arms ?
Ftftiir. It was several tnotUbs bdbr« i
assaitsitiation.
Ail. Gen* W'aa it within a yaar before ilT
Forier^ Yes ; 1 btlieve it was within a yc
1 gave him several tim^ money for tliat pi
pose, tti all above ten pounds, and be told a
one with anothut, he had bought ten caiei
pistols, and kept tliem in the liouae till
were oocaaioii.
A(i, Gen. How long ago ia it P
Forttr, I believe about a year; wilhhl
year*
AU. Gen. When did yau first acquaint 1
with the ai»sassLi)atiau ?
Forter, Presently afW sir George Bard<
aci)uainte4l me with it ; t sent to hin^ to \
him to get tlio pistol<» dean aiu) ready.
Ait, Gem. Did you tell htm of thedesignl
Farter . 1 toUl hitn titere was a demgu
footf and I would t4.dl him more when 1 1
him next ; and I desired bim to get ibe swo
from the sword- cutlers, and the pistols t "
aod ready. And 1 met him al^rwardiy
told htm of the design, aud that we i
do it on Saturday the J 6th; and be i
to be ready and make oni^. On the 1
fore the '^3d he went with me to the Cock«i
and there we met with one Mr. Gunn, ancl
aaked him if he knew where any good 1
fif High Tire&sdn.
nMit ^ Irtrf f H« Mid be }Mtft4 he
M; aailT teiil CraQboroe with htm, nut! he
■■i hmekj mod loYd mtht had fecund two or
HtfMOiM m Bloomshttrj.
L. CA /• I>K>li ye, eaptairi Porter, you must
101 ipMkti Ito, tt is inopossible to undertUod
i» viadi Bftlter ms you deliver without distin-
rasluafl' of times* Yoti iiaid, that some lon|f
mfe bmre the issafisinatioo wjis on foot you
•wt him lo hiiy anns ; for what purpof^ were
Aii. Gen. My lord, he has told you
L C, J, Pray, let me tiear it frntn liim a^ain.
t^rt^r, 1 »y, my lord, he knew ol' my be-
ii| i Cftptttn hi colonel Parker's reg^lfDeat iim
tpo years.
L C. X But what were those arms for that
belmai^ht?
Farter. To be ready Bfratnftt kin^ J u noes
knMm which n as desigtied several times.
L C* J» Why, now you make the matter
^ku to me.
in, C^^n* My k>rd, that is not the tUinn;^ we
fBipon* that is but introductory to the btisi-
MS thnl we are tMkw trying^. Therefore we
Me to liiii>w f»f him : captain Poner, when
M |«e Unit aequaint Crodthuits^ of the asass-
aniioii o£the kingf
Verier. As soon as air Georgfe Bardey ac-
^Bled me with it, and desired me to ^et #b»t
Ofii I eotilr) to effeet it. I sent for C:rai)biirne
f Mgfuga in Norfolk- street, and he caoae
y mm mw nomijif ; and I told lijm ili«re wak
lltaRgii on foot, and 1 would tell him more of
rwartl«,
► 0€U* When was il that sir George Bar*
1 yod with itf
About the Istt^nr end of January.
Ait OtH. And H hat said be to it wbeu you
him with it f
He did agree lo go with me, and I
I to furoisb itioi with horse and aruis i
I FrhHiy before tlie 15th I sent hinj with
r of pistolt to sir Wilhaiii Parky ns, to
\ the tnree oaen he was lo mouui with
I Knrses,
, C J. Who waa to have those thiee case
ifmiolar
Fort^. Sir Wllfiaro Parky ns was ; and he
einied them to ^ir VVilhuni Parky ns*s.
dit. Gen, How lung* was tUis, do you say,
Wibvt Ike assassioBCioit was to have been f
p9N€r* H waa Friday before thL- I5th.
Mt. Gtn, That was before the tinst time
llal M waa lo hare been done ?
Farttr. Ves ; and Friday before the last, I
mthifB to Inok after the horstfS th»t Guun said
hi behcreil he could help me to, and he came
lkmt%o the Stra-tavero in the 8triind, uud tnld
idJe0ery Gunn had found three horses
bury, and 1 came out «jf the room
I woa with i*ir Oeofge BafCl**y and
, and there was kendrick, and K^eyes,
and f toW them wc werc're-
I H m execution the next *hiy.
Well, prsy what discourae had
19» ivi^ hia tiie next day ?
A.D. t^.
[SM
PorteK The ocit day, the f 2d, he came to
my tod^iog at Maiden- lane, and I sent him to
sir William Parkyns for a note far the two
horses, that I was to mount of his : he came
back ai)d told me, he knew where to haVe
them, and that captain Chamock was afraid
we shoulil tiot have our complement of raerl,
and desired me lo send him an account what
men I could brings, which I did by Mr. Crafi*
burne, aud bein^f to gx» to the Blue- Posts, or-
dered him to brmgf it me thither, and he did
bring* it back to me to the Blue- Foils, with
captain Charuock^s list underneath.
Soi, Gen. Pray, eaptaiu Porter, was there
any body present when you terrt the list, and
tlie prisoner brou|rht it back to you f
Porter. Yes, there was Mr, De la Rue, and
captain Pender^rstss, and Mr. King, I know of
tjoue else.
Ati. Gen, Pray do you remember whit
heajttis were drunk iHer yoti heard the king
was not to go abroad ?
Porter. I do not remember u hat healths
were drunk Ihatttay particulSrly ; but whether
it were Thursday or Friday, (I catmot tell par*
ticuUrly the day). We drank a health to the
■qdeezuig of the Kettes Orange upon the uext
t$uturday.
Att* &Hh. Who w«^ present that day when
that health was drunk ?
Part er. M r. Craubume was there presettt at
that time, aud did djiuk the bentth.
Mr, Cowper, Pray, Sir, did he m^s^t you by
appoint meat oil Saturday the 15th, or was ft
by accident ?
Porter, By appointment, at afl the rest didt
to ret ready, as all the rest did, to go upou the
design ; and so it was both days.
Sir jB. SAot»er. If they have done with Mr.
Porter, we would ask htm a question or two for
the prisojier : we desire to know when it waf
thai thost; arms were bought that he talks off
For we moit ackaowledge that Mr. Cranburue
heretnfDre went upon iteveral messages for cap*
tain Porter ; when was that huyhj;j of onus?
Porter, I teU you, 1 cannot exactly teil the
month.
Crunbtttfte. Do you remember the year?
Porter. I lielirre it was less than a year be*
t^re the assassinuuoa was oti toot.
Crmi^urne. Jfyou remember, Sir, it was a
vnotith before colonel Parker was put ia the
Tower.
Porter. It was several timet ; I cannot tell
the pHrticulur times.
8ir M. Shower. My lord, f ilesire to know,
when he first commuuicated this dcsigu to Mr.
Crauburne ? and who was by, and where it
was?
Porter. I told yon I sent for Mr. Cranbume
one day in the week hettire the 15Ch, and he
came to me at mv toderfiig in Nortblk- street,
and I acquainted ]iin> thai sir George Barcley
was cocRp, and there was such a design on
foot ; and I desired him to ^t thome pi!>»toli
that he had of mine ready, and cJeaued, that
they ought be r«ftdy for thief ex«cvLiv(^u«
*t7]
S WILLIAM UL
Trial of Charles Cranburne^
D
I
I
Sir B. Shower, Wlml day was thai ?
Pprter, Oiie dav in tlie week liefore the
CrMtbvrne* Did yan erer oamc sir George
Burdev to a)^ in your JiJe ?
Foricr, Ves» i iliJ ; I told you he wm«!
ctitrie lT«>ni Franctv
Cranbunu. Wh#?re waa that, at Mr. ?
I*mier. In Nnrtblk -street, where I lay.
Crunburne. VVdu i*aa by ?
Pitfter, Nobf»dy hut mysf^U*
Sir J3, SkiUi^^rr. Upou vi'batuceajtioii did yoii
Beet there?
Porter. 1 sent for him lo my lodgtojf.
8ir B. Shimir. How lonj^ hud sir George
Barcley been in towu, Wlore that lime ?
Pvrur, I Ciinnot tell the limt; when he came
to town.
Sir h. Sftower. How loog was it after he
came lo toivu before yon saw hira ? Had yciu
P*'en him a week or a furtuight before ? Pray
recoilect yourself*
pQrter' J told you that the fii-st time I heard
of him, was the latter end of January ; c»|)taiii
Charooi'k told me he Has come, but I was then
fiick of ibe gout
8ir B. Shitmer^ Now ih^n I would desire to
know, who was by, upon the Friday before tlie
S2d, at the 8uti*iavern in the 8traud, whea
you and Mr, Cranburtie were there?
ForUr. 1 did tcU you, Sir.
Sir B. Shower, I tiesire to know, whether
there was aoy body betides Mr. Cranburne,
Keudriek, and Keyes ?
Porter^ Sir, 1 will tell you all I can re-
mem b^^r ; I was in one roum with sir Cieorg^e
Ilardey, and there was sir William Piirkyos,
caf^tain Charnock, and myself; ai:d ajterwanls
1 weot into another room, where there was
Kendrfck, and Cranburne, and Keycs ; and
J«0cry Guon came in afterwards j I remember
nt»bDdy else.
Mr. Phipps. Was not Gi}t)U there when you
you fif^t ciime in ?
Porter, Tq the best of my rcraicrobrance,
be came in aftet wnrd«.
8ir B. Shower, IMy lord, thts may be a very
roaterial part of our defence, and therefore we
must entjuire a little the more mio it. Mr.
Purter is pleased lo a^y^ that be was in a ronm
with sir George Barcley, and Ciiarnock, and
sir William Parkyos; and he e^me out into
another room, wberw was Mr. Cranburne, Ken-
itrickf and Keyes ; and there he says, at^er he
liad bceci there s()nrie ume, Gunn came in; I
desire to know whether Guiiu was ibere when
lie first came in?
Porter, Tr» the best of my rememhrance, be
came in afterwards ; but 1 cannot |iosiiively
IC'IU fftr t was in and out several tiincH,
Mr. Phippi, At the lime tliat ynu coramu-
picutcd this design to Mr. CraBbyrne, what £>md
be to you ?
Porter. When I first commimicated the
ib'mg- to bim, 1 told bim titers was a thintr on
foot Ibr the service nf kin^ J&ai4KS| and desired
him to go alQug wiih iii«.
i
L. C. J. What kiod of aerriee did you
htm it was?
Piirt€r, He asked mr, wh:it kind of »e
it was? I told him sir G«onje Barclcy
come Of pr, and 1 told the whoie d^t|;n of
assassin dtiou u! the prince of Or inge, thai
was intpib^rd to tuke bim oH't as Ur «:ame In
Ricbiiioiid trom buuiing'.
Mr. Phipps. And jHay what did Mr, Gn
buruc Siiy to you r*
Porter, lie said he would be ready to
aloni^ with me.
Mr. P/tippa, You say, yuu eent by bim thi
ca^e of |ii^lids iii sir VVili^am Parky ns i at ll
time did you tell bim tor what desijurn tb4l
pistols y% ei e f
Porter, I told him, they were for the thn
men that sir William Paikyns was lo omm
njion three of hifi tive borse«.
Crunburne, Did ytm speak to me to cti
ihoie pistoU to sir VVilliain Parkyns.^
Porter, t think so, to the l>est of my
menibraiice 1 ordered you myself to e
til em.
Sir B, Shower, Captain Porter, I desire
to recollect yourself, aiK^l tell us plainly,
tber the desi|fn was coiinnunicated
Cranburne belure the l'»th?
Porter, Certaitdy, Su-.
Sir B. Shower, Art- ycm sure of it ?
Porter Yes, Sir^ I am sure of it.
Sir B. Shower i I %hk you, because you
what has been said upon Uiis occaaiou in
trials.
Cranburne, Wliere did you write the nol
that you say you sent to sir Wiltinm Parkyn
Was that note seHled, or was it not? ^
Porter, 1 did not tell yoa that J wnHHt
note.
Cranburne. You fwore that yoti wmlft
note, and sent it by me to sir Wdhnrn Pu^jj
for two horses.
Porter. 1 said no such tbin^. Sir.
Sot, Gen, Look ydu, ca[itiiin Porter, let hi
ask you any quewttons ; and if they be prop
answer them, and let not bis attirmations
mistakes provoke yon to be angry.
PorUr, I said, 1 lent bim to sir Willi;
Parkvn!i, for a note to have the horsefr,
Mr. Lewis*
Mr. Phtpps, Did you send bim witi
ter, or was it a messdge by word <»f mouth f
Porter. ] did send hira by word of moul
for a nc»ie.
L, C, J. Pray, gentlemen, observe tht
deace : sir \\ itham Parky us was to irive a
JWr two horses, and captain Porter sent C
burne for the note.
^Ir. Phipps. I'he (question therefore that
ask, is, wbi'tber he trot a letter fur the no
or whether by word of mouth ?
Portrr, | sent by word ot mouth.
Cranburne. Prjiy will you tell the coi
what you said upoti the *4^2d to Mr, Peuderg^r^
and toe, alter you came down from the Bin
Posts, leaning upon the rail.
Porter, i do not remember i tvord of it,
iiOj
Jot High Treason*
I oAoitnt rememl^er etery word ihat I hare
Sir E, Showtr, If you can remember one
particutsr, sure you oui reiiieniber anotlit^r.
if ^tM csniif^t remember tUb, bow came you
M rrmeittlMfr fttiy pirt of tUe tluicounMs ibul
iMten^ ot the Blue Posls?
JVlcr* l^dkuse itial Has material to tbia
, far 1 Un^l very soon af^er a particular
I to recoUect U upon tbe breaking uul
tf IIm |»b>t.
CfttH^nuf. Pray what hour was it ibb Ski-
tiiiiiy the l^tb, Uiat you conimunicittiMt lliiii
^oifD Ui me t
ftrt^r, i caiiDOt teU wbnl hmir, but 1 say
t«a mrt at ttie Blue-iVsts Satunlay tbe K'^ib.
Crtm6i*nir. Vou say, you fommum^ateil it
tvinettie t5th.
Hi, Gen. lie mys be communicated it to
|0f, bclofff the 1 jtli.
Cr^mhume. 1 desire to know where be waa
tblMb,
fwi^r I say, ooe day before the 15tb ; m
tbi wwfk 1 sent for )i>u to c«me lo my loiltf-
iflfif and yon did cotue^ and tli<:re 1 t?<Hiiniu-
mmcA it to you.
Cr^mhmrni* il^ir, I was nut at your b»%inga
tbiweek,
Hr Fhiftpt, VYhat day of the week ?
ftrritr, 1 cannot be positive ultether it wa»
UnivmiUy or Friday, or what day \ but one
plir thai ^et!k it was.
\ llr. Fk%ppu You ought to be positive wbeu
I Fortfr, I do tell you as nrar as I eon.
L Mr. Pkippi. U'ltb tuhmikSion, niy tord, be
i lo be poeit&ve one way or other.
.C^J, ni&yt 1 do nnt aee that be ou^ht to
ire lo a day ; be may bo mj if be can*
kime* Pray what day did you say you
I tte ti> air George Barcley ?
I fmter, I do not say that 1 ever sent you to
^G^ense Uiirclty,
i Mr. Phippi* Can you take upon you to say,
A lie was at your lod^iug^ ihui week before
jlMh?
Forter, To tbe best of my koowbdge it was
DC ilay tbat week.
Mr. Fhippi* To tbe heal of your knowledge I
Are you sure of it ?
L.' C, J. Hpenk as certainly as yon ean.
Pwirr, Indeed, 1 believe sci^ it was In-fore
Ibel4th. i aui sure, I thiiik« it was with in
t fir four ibtys after sir GLinf^e Bare ley bad
aifileil me wrtb it, I sent tu ilie prisoner to
-,-„• i» me to my M)ilui;[% at Mrs. , in
Kor(u)k* street, uikI acijuiiinied him with it,
JL C\ X And i^beo you :ic^uainteil tiini with
it, w hut tbd yau tell bim? VVh^it p^ut uuti he
bactintt?
Ftrrier. 1 told him, I would have him ^n
lAan^ v»iih me, and that t had set liiiii down
for one ul my p^rty. ;&od wnuM provide hitii
Wie atid arm** ; aiud be did a^ree to gu along
ttilklM.
Ir a Shattter. Mr. Webber, Pray let me
far Cbintock*fl ximL
Sb. Buckingham. Why, air Barthofomew, is
Ibe irinl any ewnlence ?
Sir B. Sitou'tr^ Wr. Sheriff, I know what
use I can make of it,
Soi. Gen. Will you ask him any more ques-
tions ? — Sir B. S/iow€r. Nu» Sir.
SoL Gen. Then swear Mr. De la Rue,
[Which was dtme.] Fray, Sir* ihve the cuuie
and the jury, an account what you know of
the intended ftHsassinutiun, and what share tim
[ir4.<>oner had in it.
De id Hu^. It is too lon|f a story to tell
you all that I know ol this mailer ; but. if you
please, I will tell yon tvUni cH>ncerut the pri-
soner at the bar. 1 am heartily sorry tbat I
have oceasiiio m ap^K-ar nt^aimit bim, as I
would be truly at^aiiist any h<»ily - but since [
am here nptui my o.ith, t uinst flt*cUr*» th**
truth, and uothin^ hut the truth; und I hupe {
shall nnt deelart' uny thiti^ but what is truili.
U|ri>n Sut unlay thi; 1 5th ut FebrnarVf the da r
that (he detiiijrn w^a u* have been put in eice*
cution a^aiost biii mujeMy, and all that Wf>re in
the coach with htm, ntM\ ni;njr»jtt his (fuards; f
irteut to i^lr. Cbarnnik'si iiwljjing-s in Norliiik-
street, to inioroi mvBelf whether they re^cdveil
on that day to ^a out upon tbe design; and I
fbun<l hy ^Ir. Charnmk that (hey did re«iolr«
Jt.an<l I staye^l there nubile, tdl such time as
>lr, Chauil»*'rsuuHent ; 1 did not know nhejico
he etiioe then, but, an I uas inlorrned alter-
waiHlji, be came from Kensintjton to Mr, t'hnr*
nock, ami his boots were dirty ; and Mr. Char-
nock told me be bail sent a me^^Keuger to Mr«
Porter i ami* sayn be, * If you will wtay a tittle
* time, I shall hhve an answi-r.' 1 he rnessenifer
came hack, and told him. That captain Porter
dined at the Blue^ Vosih iu Spring -garden. I
did not 4to to dine wiib him, but went borne,
where 1 saw Mr. Kin<j, who told me, that
the kin^ did not ^t^ cnit that day. I told bim,
1 beard he did imt c E Ibund by Mr. Cbambers^s
e^iniin:^ hack, and (hat we bad no notice from
Mr. Cburnockj tliat ii was cuncludrd tbe kinnf
did not go out as itn3Sf;up|M>sed he should have
^nue. When I bad ilined at my hnh^iritr^ J
went lo tbe Blue- Posts m Spring-garden to
Mr. Porter, and there were four, or ttve, or six
people with hiui ; there was mie Mr, Slierlmrn,
and Mr. Kendriek, and two pi'opte tbnt I never
saw ht'fure, und another per^ni, but I cannol
t^ll now who be was, \Vhen ^^e had bten there
a little while, in cmnefi (bi« nnfor innate man at
the bar^ Mr. € ran ho roe ; i i hi not know where
be had hei ii ; hut hy hts coinni|( in so late, 1
KuppiiAe he bad not dined, and he onlered (he
dra%«er to ^ei biru some costelct<(. This is all i
can say an to tbnt day, l hiol seen capt. Porter
twice t>r tbrice bet ween (hat and the '2til, and
he dfsiretl uie to be at home on Fridav nig-bt
betwec^u eijiht and nine, and he wouhl send to
me: be ihd send, and I was from bonte. Hui
wlien 1 came 1 was iiiii>rnied his serf^aot had
been to i^peuk witb me ; and in (be mornm(i^,
about eh^hi or lune o'cloik, Satnrdav the v»^d,
be sent bis fcerrnol to me to tell me Kis mfLsicr
wuuld speak witlk rneai hii bdgin^. I wcui
I
I
I
t5I] S WILLlAAf III,
lo his todc^AQ^, and he then lay in Maiden-
lane» at one Brown's a surgeon ; when I c^me
iti, He Wis in bed ; anti h^ told me in Freoch,
* Toots purttes eotit presls/ M\\ partieB arc
f«ody. I tinders tood ftlk alimc^ that tiitre were
three panics to be engaged ; one to otuck the
king's ctiach^ and the tWD otht»rs the ^aftr(Js :
•if Georife Barcley ^t»i to he4*l the first, and
FortfTftnd Hinik^ood, the rest. Mr. Porter
arfise and dre^jsf d hi m<ie[f, «tnd in came Mr,
C rati burnt ; and Mr. Portpr tveni out to him
in the dtnin|f-nK)m^ and what he said I camiot
t«lt ; but mx^a alter eame in Pender|pNU9^ Mr.
ICeyc9, and Mr. King, and then he takes pen»
iJik, and pafier.
Sir B, Shff&tr. Who took that ?
J)t In Riu\ Captam Porter took p<pn, ink^
«ad paper^ and ^^^rites dofrn a lisf of [its paily,
3Hid put* me down first, Mr. Pendtrii^^
aaked me ifl was tiie captaifi ? And 1 made him
mme answer, but what in particular i cannot
tell ; I think I told htrtt I knew of the thing
liefore the ruost did. But I can renftember par*
ticularly that list was^feii to Mr. Craubm-oe^
to carry to Mr, Chamuck ; iipon whai account
it wa», 1 cannot tell; hut I conoliukd, that
Mr. C ha mock wahi to lie ncf|t)atnted with ihoi!j«
persons thai Mr. Porter wa»» aure of: and Mr,
Porter at that f inie totd me that he wa« dbap-
poioted of $ome people, and desired me to i?et
liicn some other men in their roon»«i ; and be
sent panicnlarly to one that Mr, Kinyr pro-
eiaed ; am) 1 did go, und hrou^bt him to the
lue-Po5ta, where captain Porter told me be
wai to dine ; and the f«'enth'nf*an I went to,
told me he wonlil meet me at the Blue-Poicts
in SpriLi^-garilen. When I came hack fn Mr.
Porter's lodifiojpi, Mr. Porter and iMr. Pendct*
grass, and Mr. Otdtield^ and f , went in a coa<!b
lathe Blue-Posts in Spring- jjardto ; Jind when
we had b**en there a little while, Mr. Cran«
bume camt> hnck to ^ive an account of the er*
rand Mr. Porter had sent liim upon, and he
brings this lisit.
J/r. Grn, Who brouerbt it ?
De la Rue. Mr. Cranburne.
Cranbume. I\ hither did I bring it ?
DelaHue^ To the Blue- Posts in Spring-
garden.
L. C. /. Yon must not ask any questions
till they have done with him. But Mr. Dc la
Kur, let me ask vou what duy wits this ?
De in Hue. 1" his waft Hainirlay the 2Sd of
February ; and lie told .^Ir. Porter there was a
tiiit uf VJr. Charoock*!* men at the bottom of
that list; and 1 took the list in my hand, and
there was 1^1 r. Chirnock^H hst of six or »cvftn,
or thereaboots, oC bis party^ and M the bottom
of it Wv8 R, C. I ihintj for Kobcri Chnrnock.
Mr Poner takea Mr. Cranburo^ from the com-
pany into another rootn, and I went *iftcf them,
and he told captain Porter, in my hearing, that
the kin^ did not ^o ool that day. There is one
tbin|jr 1 furgot winch now [ rceolWt, and I am
upon my oath to tell the truth, and the %%Kcde
trnlh. When I was at Mr. Po«tef*s lodging,
h« la!i me the kinf was to g9 dut ; aad that
TrM ofCharUi CrAnbume^
DW
Mr. Chambers^ the OTderly auM, hsd
word, That the king resiolrcd to go oat
len and eleven .
L.C J, Who said so?
De la Rtte, Mr. Cranbirme fold f
Mr. Porter's lodgings: I say I bad fofgut
but it occum to my metnory now, that be
me there before be went lo the Bliie P<
that th« kmg did go out that day between
and eletcn; for Mr. Chambers^ the orderly
limn, had been with Mr. Charnock or air W mi
Parkyns, to let them know so mucb. Am
afterwards, when be catne back with ibc* Ik
of ca|itain Porter's men, to captam Porter
the Blue Posts, in the Spring-garden, \\
was at the foot of that list^ a liirl of Mr. Cbi
tiock*9 m«n in attotber hand, t suppose writ
himself, but tliat I cauuot swear whose hai
it was I and Mr. Porter took him into i»ft<
room, and then Mr. Cranbnroe tcdd him
king did not go oat, and I belifva it waa tlii
between oleveo and twelve o'clock ; and
aUo tohl Mr. Porter, that Mr. CI)artiock wi
iipprflieusive the thing was discovered,
ihereibre desired him to have a e«re of
self, lor he himself was resolved not to
home that night ; I think, my lord» Mr. Porii
did seud biick Mr. Crnnburoe to Mr, CbtH
nock I I cannot be potitire whether he did <
fiot, but I believe ne did ; because I am wn\
Mr. IJranburue did tell Mr. Porter, sir Geotgl
Barcley would speak with him ; and Mr. ""
lor mnde answer, why should he desira m# .
go to him, when he knows 1 am under fon
ill circumstai^cefi, ami he can better e<iiii# I
iwe f And I believe Mr. Porter did send Mi
Cranburoe ouue again to Mr. Charndck.
X, C. X Well, pray do not say any thiq
of any matter, but what you can bo poiitiTt 11
De la R$t£, Bat Mr? Porter did not g«» i
Mr. Charnock, nor did Mr. Charnock cuoiel
him, therefore they staid there and dineil ; an
after dinner, or a little before dinner, Key4
the tf umpeter came up and told us, that mj
lord of 03tlnrd*s rcgiuient of Cuards wat
inrned from Richmond, t!>arning: Keys
down stairs again to learn intelligence, as
thought, and C4ime up and told ub be aaw
kin^'i conches newly returned to the Mc.
»nd Mr. Craiibnriie was by all the lime; 1 ihi
this was before dinner, and tbeti we went
dinner.
L. C* J. ] tell you agam, do not s|>eali mj
tbifik llml it material, but what you oati be |MI
sttifc in.
De la Rue. I am positive as to the tkiftg
and that it was the 9Sd of Kebruury, but I <»M
wvt be positive as to ill the circutni^tait«ec«
After dinner there was the usual bt*alib<$, t
Jacobite healths lo king James, and the priAtfl
of Wiiles, ami the Restoration, and the tike
and iift<>r that I think it was Mr. Porter ti
an Orangp in his hand, and i»c]ucezed it, 1 am
sure one in the coui|iany did, and drattk some*
thing lo (lie Rotten Orange, I cannot vei
Weil ren^eu^r j u&t now w hat it was ; but
would be cautious of spying any tbuig but fvki
m truth ; ^Li1 if ymir lordship will ^ve me
I Wte to rrci»IWct ray self, I will tell you what
il was — Oil ! it wfts * to the i<jtteeKiiitr of the
liutten Urani^e,^ aad the hcmlth i\^iit rottoit,
' 9t\d Mr. CraolKim^ was in the cuitipany, sail
I ^mtk tbtf l)f tilth. But bejug ilisapi«viul4Mi anri
fuled of tkm iletftgu hy the king's not ^q-
tJjat (fcay, aod Mr. Porttr b*^ing
9ped by Mr.Charaock to take careof htm-
lieing tolii that Mr. Cbamt»ck uoiild
^Mlie ftt lioroe that mfiUx^ and the guards re-
in that manner^ they were alt appve-
I tK»l the thing hnd taken ^ir, atiil t!»c
I of Aaaaaainatin^ the kui|^ was discovered,
lai Hicref^ Mr. Porter coiicludt'd of ^oln^
Mfif Ipwa ; aeveral heeltbt wfre drunk rouud,
lad I liitfik about tuo o'clock he weot out of
kitm^ wmd tlMO the cotnpaQy broke up. This
k vliai I €tm my as to the prisoner, and 1 hope
IkftTe aaid nothing- but what \s trutlj.
9tL Gem* Then, i»y \m-d, we dejire to know
l4flb€r they will ask liiio any questions i'
Mk. P^ippM. At the time yon say this list
Hf gireo by captain Porter to Mr. Cranbiirn«|
dUMr. F^ffMr declar€ to what purpose the li^it
mmmmf
Dt la Rue. No, Sir^ not a word of any such
Afi||^. Mr. King- was by, and Mr. Pender*
gnavwaui by, and 1 think Mr. Keyea was by,
Mdbtt irrii a list of his party , putt ing^ me down
fall #pil Mr* Pendergrasa said to me, You
'o, and he gasrc it lo Mr. Cmnburoc
it to Mr. Charnock ; what ilie partt-
wa«, 1 cannot ha poaiti? e : in-
do not very well remend^er the tnes-
tBe^km the list waa carried to Mr. Chamork,
iM lithe best of my memory it was to g^ive
Hr.diarfiock ao account what men bo wof
«it«f$ f<kr Mr. Porter told me of several dis"
appMoienls he bad had, of persons ikftt had
flMtocl inWf and failed.
Mr. Phijps, Can you remember what Mr.
tattlnirfte said upon Uiat?
Dr U Ru^. No, I do not.
Qrmmhmrne. Wiiat measag^e wa« thai» you
HI, I brought from air Geor^re Barcley ?
Dc la Huo I do not kuy that you brought
my mcflsage firom i?ir George liardey^
Carji^rae. You said that I brought a ines-
nigv, that air George Borcley would i^ee him.
ht la Hur, I du not say so ; hut I iay that
yan ttdd Hr. Porter that Mr. CljurnofJc sent
foia with a message to let bim know thai sir
&■•. Bardey was desiroui to see Mr, Porter,
10 ooofer about taking care of Iheniselvc^.
Cmmkumt, Did ynu hear me name sir
George Barcley** nnme ?
Sh l» Rmu. 'Ye», 1 *ay you lolrl Mr. Porter
Ikat Mr. C ha mock md you caution him to take
tan 0l'hiimm^il\ and that he wvM go tUcit way,
ftf air George Barcley, and he, ilesirtNJ to see
kin ; wd Mr. Porter said it was an uureaion*
iMtlbingfor Mr. Gharnock to desire it, be-
fittm iba J knew ho waa under cirotjmstancesi
llittlfna not proper lor him to go, and he
Mttdijud th^y would not rather come to bim<
L C\ /» nhu lime a-day was this f
k
De la Rue, Il was about twelve o^clock, i
think.
L, C. /. Waf it aAer sacb lime as the newt
was hrotight thai the king did not go abroad
that day ?
Jh ia Rue. Yes, my k>rdy il wtm aAer that
lime.
Mr. Phtpps, Were you with sir George Bar-
cley when he was here in England? jDid yoii
see htm here?
De /a Rue. I did nol aee him on this aide
oftbe water. 1 knew him abroad, and a great
many other unfortunate persons, that were
coDoerued in this aii'^ir ; 1 knew son»e of them
here^ and thot ihey were concerned in the de-
sign, but 1 did not converse with many, inde€4
with hut a very few about it ; for to shew that
J was not a man that defiigncd to trepan or en»
snare any man, 1 did never exchange two
words about this matter with any porsonfi that
f knew were eonoerned in it, but sir William
Parky ns% (and that lint in a small measure)
and Mr, Chiurnockt and Mr. Porter, and Mr,
King, and colonel Pnrker; except what passed
u|Kjn the 2 2d, between Mr. Porter and Mr,
Charnock, when Mr. Porter sent Mr. Crou-
burnc to Mr. Charuock. Mr, Cranbiirne was
one wlio Mr. Porter oalted his quarter- master:
I know thiB gentleman was coiiimonly depend-
ing upon Mr. Porter, but J think I never was
much in hit com pan v ; 1 did not know what
dchign be bad upon hfm, hut I was told by Mr.
Porter, that he intended to make him hi^
quarter- master, and I understood Mr. Porter
was to have a tvoop of hur:ie in colonel Parker's
regiment
Mr. Phipp$, Yon say you knew a great
many of litem that were eoucerued, but yoti
discourbeii and conversed hut witli & few P
I>c la Rue. I do so. Sir,
Mr. Phippi, How do you know that Ihey
were concerned, when you did not dtsoourae
with ttjem ?
De la Rue. By information from Mr. Char-
nock and Mr. Porter.
Mr. Phippt. Do you krK*w any thing mor«
of Mr. Cranburne, than the list, and what you
have said already ?
De la Rue. I give you an account of aU
that 1 do know.
L. C. X Answer that particular question.
Do you know nothing moi-c than what you
have said ?
De la Rue, No, my lord, 1 do not remember
nor know any inor<? aa to Mr. Cr&nbume thsn
what I have decbred, artd I am sorry 1 bad
occasion to decfure so much.
dit. Gen* Then call Mr. Pendergrass.
[Who was sworn. 1
Sol, Gen, Pray will you give my lord and
the jury an account of what you know of the
intended assussinittion, and how fur Mr, Cran-
hurne, the prisoner at the bar, was concerned
in it.
Pendergrais. My lord, the 13th of February
last, I came out of fiaitipshire, Mr. Porter ^nt
ibr me to come to town^ and j met hitu tK%t
^
855]
8 WILLIAM IIL
day At the Blue-Posts in Sprfogf-f(irden, and
there he told me of the assassinatiou that was
to l»e d«>ne on Setunlay tbilowing: the next
day we dined at the Kose-taTern, where the
Erisoner dined with us, and we talked of the
usiiiess ; that was Friday the 14th, and we
were to be in readiness the next dav to assas-
sinate the kingf, as he was coming from Elich-
mond ; but some oom|Niny comme in after-
wards, we lef^ oflT the discourse, and talked no
more that nt({^ht. The next day that we were
to do tlie business, we met at the Blue-Posts
in Sprinf^- garden, and findings the kinji^ did not
go abroad that Saturday, we dined there at the
Blue-Ptuits, and talked over a^n of assassi-
nating the king, and the priiioner was by at the
same time ; tliey were aJI mightily conoemed
the kinff did not go that Satunlay ; but when
we liad dined there, we had no further dis-
course am»ut the assassination that day, but
every body was to prepare against the next
Saturday.
L. C. J. Was that agreed upon then ?
Pendergran. Yes, it was by all the com-
pany ; so we parted that dsy. 8ome time the
next week I met 1^1 r. Porter, and Mr. porter
asked roe, if I had a horseman's .sword ? I
told him, No : says he to Mr. Cranbome, Let
capt. Pendergrass have one of the horsemen's
awords that you have got. 8ays Mr. Cran-
burne to me. If you will come to my honse
you shall make choice of one yourself, for I
liave several at home. Said I, Mr. Cranbume,
1 cannot go that way, but I will Uke one of
your choesing, if so be you will leave it at my
lodgings : he said he would do it, and did ; he
left it at my lodgingi in Suffolk-street, which
sword I have still. The day following I met
him, and he asked roe if 1 had received the
sword P 1 said, I had it ; and he said it was
▼ery well. AAer tliis, I did not see Mr. Cran •
bunie till Saturday the S9d, at which time f
came to Mr. Porter's lodgings between nine and
ten o'clock in the morning, and the prisoner at
the bar was there, and 1 heard Mr. Porter give
him a message to go to sir William Parky us
for some honti'S, 1 know not how many, l^hc
prinouer went, and in some time after came
twck again, and brought an account that the
king went out that Saturday the 33d to Rich-
mond ; so every ho«ly was to get ready : and
I'Ir. Cranbume said, that Mr. Cbamock de-
sired that Mr. Porter would send a Int of his
-meu ; upon which Mr. Porter wrote a list of
his men, and gave it to the prisoner to carry to
Mr. Cbarnock, and bid him meet him at the
Blue- Posts ; and Mr. Porter, and Mr. De la
Rue, and I, took coach, and went down to
Spring- garden, and when we came to the Blue-
Posts, there were some persons that 1 think
Mr I>e la Kue had an^iointed to come there : say on behalf of the prisoner in this rest
the tirisoner comes tnither, and brought the j this : Here are but tliree witnesses prod
list back, with a list of Mr. Chamock's men ; and as to one of them, De la Rue, there
underneath. 1 know not who the men were, i evidence that he ^ives your lordship ai
for I saw it only on tlie one side of the table in jury that affects this matter, but only that
Mr. Porter's hand ; at the same time the pri-
coiicr brought an aocouuti that the |^og did
Trial of Charles Cranbume^
not go abroad that day, and presently aft
had the same accoimt: from other hands
captain Porter and I went cot of town, a
heard no more of it.
£. C. J. Are you sure that ht did ag
this matter before the 15tli P
Pendergrass, Yes, I am sore of it
agreed to it Fri«lay the 14tli, at the i
tavern, in Oovent-garden.
L. C.J. C>n the 15th, it seems they
disappomted ; are you sure there was ao i
ment to pursue it the 22d ?
Pendergrass, Yes, 1 am sure there wa
lord.
L, C. J. Was the prisoner there ?
Pendergrass. Yes, my lord, I am sor
the prisoner at the bar wins there.
Crunbume, Pray, Mr. PendetgraM,
there any discourse about thia thiog w
was there P
Pendergrass, Yes, Mr. CranburiM, yoi
not hot remember there was.
Cranbume, What hour did I come 1
pray. Sir .?
Pendergrass, Truly, 1 cannot be potiti
an hour ; but you were there while thi
course was.
Cranbume, Whether I did stay thi
the while, and who was in the company!
Pendergrahs, All ■ the company bnil
about six o'clock ; there was Mr. King,
Porter, Mr. Kendrtok, Mr. Cranbume,
Keyes, and myself.
Cranbume. Was Kendrick there wl
was there ?
Pendergrass. Yes, I am sure of it ;
do you all the justice in the world that I •
Sir B, Shower. You say. Sir, he did
upon the 14th to this desigti ; pruy what ^
did he use ?
Pendergrass. He did agree that we s
attack the king the next day.
Sir B. Shotcer. Pray, Sir, if yon ca
collect yourself, what did the prisoner as
whether you took him to agree liy being si
Pendergrass. He said, he hoped we s
execute our business the next day.
L. C J. What day was that r
Pendergrass. That was the 14th of F
ary, and the same night I gave account c
matter to my lord Purtlaud.
Mr. Phipps. Did he agree to be one I
execution of the design ?
Pendergrass. Yes, he did ; he disoo
the matter to me himself.
Att. Gen. My lord, we have done wit
evidence.
L. C. J. Well, then, what say you to
the prisoner ?
Sir B. Shower. My lord, what we hi
was a list given by capt. Porter, and o
the prisoner to Mr. Charaock, and te br
for High Treason.
b. Bat he does not recollect, nor
oy ineMage that was sent from Purter
A. D. 1696.
[S5S
to Mr. 'Chamock : now, m v
bare carrying of a note of names will
idenoe of treason. Mr. De la Rue
iwear to any privity of the prisoner,
list was for, nor to the delivery of the
h is the overt-act in the indictment ;
what account this list was written, or
coaght hick again, or any word that
1 from captain Porter to him upon
e list, or any word when it was brought
in. So that as to De la Rue's tasti-
e must submit it to the memories and
un of your lordship and the juiy ; we
only proves a plot in general, of which
lo peradventure, every body is satisfied
re was such a hornble conspiracy :
It have been condemned and executed
sve owned it, and so it can never be
; but he does not say any thing to af-
pnsoner at the bar; for as to the
of healths, and being presant when
alths were drunk, though it be an evi-
' disaffection to the government, or too
kmI manners and complaisance to the
f a man is in ; yet that disaffectk>n, or
iper, or complaisance, we hope are no
s of treason. It is plain the prisoner
od very much upon captain Porter ; he
rath bis servant to go of his errands.
Beted an office from him, God knows
Mit it does not appear by any particular
hat he did any tbmg that can be treason,
r. De la Rue's evidence. Then, as to
r. Pendergrass says, I must confess his
t comes home : for he says there was a
of tlie assassination, and some agree-
'ibe prisoner to it ; but I must beg your
1^ favour to observe, upon Mr. Pender-
cvidence, if that stand akine, it will be
witness, and then we are safe by the
' of this act of parliament.
/. Ay, and by the law, before the
of that act.
. Shower. Then, as to capt. Porter, I
pg leave to say, if our witnesses are
lat were absent at the other trial, and
>ve what is in my instructions, it will
much questionable, whether theve be
idibiiity due to his testimony : then if
£ off nis testimony, there is only the
e of >lr. Penderrrass ; and if he be to
fed, to which I nave nothing^ to say at
in the case of a man's life, upon an in-
t of treason, where the law requires two
witnesses, his single testimony is not
It to convict the prisoner. We
call our witnesses, and then we shi
lo your lordship, and the jury.
Phipp* A% to the particular overt- act
he in«lictnicnt, ihe carrying about the
y Mr. De la Hue speaks to it, and sir
MDCW Shower has gif en it an answer,
laH not repeat it.
/. Ijtok y e, for that, if any one overt-
ovcd by 2 witnefses, it is well enough.
XIII.
Sol. Gen. Besides, they mistake, my lord,
extremely ; for captain Porter and Mr. Pen-
dergrass speak both of them to that particular
as tothe^ist.
Sit B. Shower. Wedonot deny it; the ques-
tion is, Whether you have two credible wit-
nesses ?
Cranhurne. Pray, Mr. Penderj^rass, do you
remember what daptain Porter said to you, and
I, when we came down to the Blue-Posts,
leaning upon the rail ?
Pendergrat$. Indeed, Sir, 1 do not.
Cranburne. I would have you recollect
yourself; as we stood against the rails in
Spring-garden, when we came down from the
Blue-Posts, after the design miscarried, Mr.
Porter said, Mr. Chamock and they might
thank themselves if it were discovered; * For,'
savs he, * I never communicated a word of this
* thing to any of my party.'
Pendergrass. indeed, I do not remember a
word of it. Sir.
Mr. Phipps. My lord, we have one piece of
evidence to offer against the testimony of cap-
tain Porter: he says, that he sent Cranburne
vrith Gunn from the Cock- pit to see for hackney
horses, and that Cranburne came to him to the
Sun tavern, and there they had some discourse
about executing the design the next day ; and
being asked, who was by, when he communi-
cated the design to Cranburne? and partica-
larly, whether Mr. Gunn was by? He says he
came in afterwards, hut was not there at the
time of the communication about the design.
Now we shall prove that Gunn came in with
the prisoner, and was with him all the time,
and there was no such discourse happened.
Sir B. Shower. Call Jeffery Gunn, and Mary
Gerrard. [They appeared/l Your lordship
will observe, what captain Porter swore, that
be went into the room to Cranburne, and Gunn
was not there : now, if we falsify him in that
particular, we shall submit to your lonlship
now far he is to be believed iu the rest.
Att. Gen. Pray, sir Bartholomew, ask your
witnesses what you will, but make no descants
upon their evidence till you have heard them.
Then the two Witnesses were sworn.
L. C. J. Well, look ye, you are both upon
your oaths, consider what \ou say, speak the
truth, and tell all that you know, and nothing
but the truth. Which do you begin with ?
3Ir. Phipps. Jeffery Gunn— Pray Mr. Gunn,
did you go to the Sun-tavern at any time with
Mr. Cranburne? — Gunn. Yes, I did.
Mr. Phinps. What day of the month was it?
Gunn. 1 cannot positively tell the day, it was
of a Friday.
Sir J5. Shower. Was it of a Friday, in Fe-
brua»-y, or January ?
Gunn. It was lu February.
Mr. Phipps. Was it before the plot broke
out? — Gunn. Yes, it was.
Mr. Phipps. How long was it before the plot
broke out ? — Gunn. I cannot tell that, truly.
Mr. Phippi. Whence did you go ?
8
»55]
8 WILLIAM III.
I
I
day a I the Blue- Pastil in Kpiing-^rden, and
thi^re litf toM me nf the HssFLs&itmlion that was
III he iUn\f on JSnlnniay ttil]n«vtu|^ : tLj? licxt
tlav we i\\nei\ al the K<>«e-tiiveni, wliere the
prisoiier iHi*€tl wiib us, ainl we talked of tt*e
buiii liens ; that was Friday tUe Htb, and we
VtCFv lo be iu readioes^ the iiext dav to ausa^-
ainale the king", ai he was comities fit»ni lUch-
niotfd ; but some cniii|mTij coming m after-
wuntij« we left utT the di^couiiKC, and latked no
more that nigliL The iiejtt day that wc were
to do lire husiness, we met iit the Blue*PiJst?i
in Spring- £;iirden, and Hndirig tltt^ kiu^ did not
(f 0 abroad that Salurduy, \^e dined there at the
Bloe*r«i»tii| and talked over aiTain of assas^i*
Haling' the kioqr% and the prisoner was hy at the
liamc tune; they were uU mightily concerned
the kiog did not i^o thai Satnnlav ; bnt wh«r^n
we iiail dined there, we had no further dis*
loutse uiniut the assassination that day, but
pvcry bmly was lo prepare og^aitist tJie ntixt
8atui^ay*
L, C' /♦ Was that agreed upon then ?
Pendrrgniss. Ye», it was hy aU the coiti-
fany ; so we parted thai day. home time the
next week I met Mr. Porter, and Mr. Poner
asked nie, if I had a hortwman^s iwmd ? 1
told liim, No: says he to Mr. Cranhunie, Let
<"ajil. Peridergrass have one of the horhemen's
KWonh tliat you hin^e §ot. t^aya Mr, Cran-
liinie to me. If you will cnme to my honse
V«>u shulJ umke choice of one yourself, tnr I
haveaeveral at home. Said I, iVlr. Cranburne,
i caiHiot go that way, but I will take one of
?'Oiir cb<Miaingr^ if ao be you will leave it at my
wlgin^ : he said he would ilo it, and did ; be
left it at my lod^ng^ iii Huflblk -street, which
aMord I have stilL The day fotUnvitig I met
him, and he asked nie if I had received the
fword? I said, I had it; and he said it H-as
Tery welL AlWriliis, t did not see Mr. Crau-
hume till baturduy the 3'Jd, at which time I
came to Mr. Porter's lud^gings between nine and
ten o'clock in the mominjr, and the prisoner at
Trial of Charles Crmnbume^
not ^ abroad that day, and presently after i
had the same account from other bvida ; as
captain Porter and I weat out of town, and^
heant no more of it,
L. C. J. Are you sure that he did agree
thia mailer before the 15th ?
Pendergrau, Yes, 1 am sore of it ; I
agreed to it Friday the I4ih, at the Rot
tavern, in Co vent -garden.
L. C.J. (In the ISUi, it aeenid they
disap^ioinied ; are you sure there was an agif
meat to pursue it the 22d ?
F4ndcrgrau, Y es, 1 atu sure there waa^
lonl.
X. C. J. Was the prisoner there ?
Fendergrati, Yea, my lord, I an
the prta«nicr at the bar was there.
Crunlurne, Pray, Mr, Pentlerirraas.
there any discourse about this thing
was there?
Fender grass* Yes, Mr. Cranburtie, y*
not bat remember there was.
Cran6urae> What hour did f come ll
pmy, Sir f
Fendergrau, Truly, 1 cannot be posittre
an hour ; but you were there while ibe <f
course was.
Cranlmnte. Whether I did itay there
the while, and whfi was in the company ?
Fender gra^i, AH the company broke
about hix oVlock; there was Mr. King-, cm
Purler, Mr. Kendrtc^lc, Mr. Cranburne, I
Key es , a n d m )'feel f .
Cranburne. Was Kcodrick there when
was ihei-e?
F aider grau. Yea, I am sure of it ; 1
do you all the justice in the world that 1 cj
J^ir B. Shmeer. You say, 8ir, he did
upon the 14lh to this desigu ; pray w
did he use f
Fender grass, ITe did a^ree that we
attack the kin**- ilic next day.
Sir B. Shower. Pray, Sir, if you
c«dlect yourself, what did the nriiioner
the bar ssas there, and 1 hearil Blr, Porter give whether you touk him to agree by being
him a messat,'*? tu go to sir Wilham Parkvns
for some hurbi%, I know not how many. "the.
pritioner went, and in some time alter came
iMck again, and bri^uj^bt an account th^t the
kiug went out I hat Saturday the Qad i<j Rich-
mond ; so every InHly was lo gut ready : and
^r. Cranburne i^aid, that Mr, Cliarm>ck de<
Hired thai Mr. Purler w*nild send a list of his
ineu ; u|»on which Mr. Porler wrote a list of |
htii %x\e\\ Bud gave it to the prisoner to carry to
Mr. Charnock, antt bid him meet hini at the I
Blue-Po«ts; and Mr, Porter, and Mr. De la '
Rue, atid I, took coach, and went down to
{»priDg-gpirdeu,and when we came to the Blye-
Posts, tlieie were son^e persons that 1 think
Mr Dc la Rue had appointed lo come itiere
Fender gntu. He said, he hoped we si
execute our hintiuL-s^ the next day.
X. C X What day was that ?
Fendergraii. Tliat was the 14th of Febr
ary, and the same night 1 gave account of
matter to my lord Purtland.
Mr. Fhippi Did he agree lo he one io
execution ot the design ?
Fender grass. Yes, he did j he disooti
the matter to me himself.
Ait, Gen. My lord, we have done with^
evidence,
L. C. J. Well, then, what say you to it
the prisoner ?
Sir B. Sh oner. My lortl, what we hare
say on btdtalf of the prisoner in this respect
the [prisoner corner thither, and brought the j this : Here are but tiiree witnesses prodtii
ha back, with a liiit of Mr. Charnock s men
underneath. 1 kuovv nol who the Dien were, i
for I saw it only on the one «ide of the table in
and aa lo one of them, De la Rue, ibere is
evidence that he gives yuur lordship and 1
ury that utfecis this matter, but only that tbi
Mr, Porter's hand ; ^t ijjc saciie time the pn* 1 was a list given by capt« Porter, aud carried
foncr brought an accouut, thai the |^og did , the prii^iner to Mr- Charoock, and so brat^
w
Jur High Trtaion.
bthit\
EiorQpon
a^fn. But he doe« uot recollect, nor
T to aoy message that was sent from Purler
the prtsooer to Mr. 'Chamock : now, my
|fcrd, tJie ban earning of a note of names will
lie ixi evideoce of trt^sott. Air. De la Rue
iMn swesr to any priyity of tiie prisoner,
the lis»t wnA foi\ nor to ihe delivery of tbe
t, which is the overt-act in the imiictment ;
what account this list was wrjittn, or
;, or brought buck aj^ptin, or any wont that
'ed from captain Porter to bini upon
the list, or any word when it was brought
ftgain. So that as to De la Uue^s testi-
1MDT, we tmiist sn limit it to the roeftiones and
leooilectton of your lordship and the jury ; we
tbiak he ooly profesa plot in general, ot wlitcb
Ibffe is no pcradienture, every body is salii^fied
1^1 there was sncb a bornble conspiracy :
thoK that hate been condemned and escectUed
^il^ have owneti it« and so it can never be
4ouiiUnl ; but he does not ^ay auv thing to af-
hX ibe prisoner at the bar ; for as to the
i^Amis of healths, and betn^ present when
tbMt])«alihswere drunk, ihough it be an evi-
Iao0 of disaffection to the jrovemment, or ton
tndi good manners and complaisance to tbe
tmffV^y a man is in ; ^et that disatTecttoo, or
^fdimper, or coneiplaisance, ue hope are no
tfiieooea of treason. It is plain the prisoner
44 Impend very much upon captain Porter j he
»u in truth his servant to go of his erranils*
ind e3rpecie«i an office from him, God knows
tbni; but it does not appear by any particular
lavHuthai he did any thing that can lie treason,
span Mr. De la Uue*s evidence. Then, as to
WA Hr, Pender;; rass says, I must confess his
^bec <?onies home : tor he stivs there was a
^1^ of the assassination, ami some agree-
MHI«f th4^ prisoner to it ; but I must beg your
MiUp's favour to observe, upon Mr, Pender-
linrMli eridcDce, if that stand alone^ it will he
mime witness, and then we are safe by tbe
Ifonifvr of this act of parliament,
L, €. X Ay, and by the lavv^ before the
^ikiaof of that act.
Sit U. Shirmer, Then, as to ca|»t. Porter, ]
lioat beg^ leave to say, if our witnesses are
cooie that were absent at the oihtr trials and
Ik^ prove what is in my instruclions, it will
Ve very much questionable, whether there be
lay credibility due to his teitimony : then if
jou lake off his testimony, there is only the
tridcoc^ of Mr, Penderpass ; and if lie he to
be beheyed, to which I have nothing to say at
proent^ in the case of a man*8 life, upon an in-
(ifltonent of treason, where the law requires two
Qiilble witnesses, hts single testimony is not
■fieieot til convict the prisoner. We beg
ktve to call our witnesses, and then we shall
lave ' • r lordship, and the jury.
II As to tlie particular overt-act
Wi**...v ■' ' nt, 1 he carrying about the
bl« only t [iue speaks to it, and sir
navtSioliiiu. er has given it an answer,
lad I that] not repeat it.
L C J bx>k 3 e, for that, if any one overt-
tct n proved by 2 mtueiiet, it ii \vetl enough.
^OL. XIII.
f
SoL Oen. Besides, they mistake, ray lord,
extremely ; for captain Porter and Mr. Pea-
dergrass speak both of them to that partlcoJar
as toihe^ist.
Sir B.5Aoarr. We do not deny it; the ques-
tion is, Whether you have two credible wit-
nesses ?
Cranhurne. Pray, Mr. Pendergrass, do you
remember what (Captain Porter said to you, and
I, when we came flown to the IMue-Pofit9,
leaning upon the rail ?
Fcndergrau. Indeed, Sir, 1 do not.
Cranburne. I would have you recollect
yourself; as we stood against the rails in
Spring-garden, when wc came down from the
Blue* Posts, after the design miscuriicd, Mr.
Porter said, Mr. Charnntk and ihey might
thank themselves if it wire discovered ; * For,*
says he» * I never communicated a word of Ihia
* thing to any of my piirty.'
Pendcrgrass. Indeed, I do not remeniber a
word of it, Sir.
Mr. Phipp$. My lord, we ha?« one piece of
evidetice to offer against the testimony of itap»
tain Porter: he sa}% that he sent Cranlmrue
with Gnnn from the Cock-pit to see fur hackney
horses, and that Cranburne cnme to him to the
8un tavern, and there they had some discourse
about executing the design the next day ; and
being asked, who was by, when he Cjommuni-
eated the design to Cranburne? and particu-
larly, ivhether Mr. Gunn was by ? He says he
came in afterwards, hut was not there at the
time of the communication about the desj|fn.
Now we shall prove that Gunn came in with
the [irisfmer, and was with him all tbe time^
and there was no such discourse happened.
Sir B. Sihower, Call Jeffery Gunn, and Mary
Gerrard, [They appeared."] Your lordship
will observe, what captain Porter swore, that
he went into the room to Cranburne, and Gunu
was not there : now, if we falsify him iti that
particular, we shall submit to your iortlsbip
liow far he is to be believed lu the rest.
Att. Gen, Pray, sir Bartholomew, askyom*
witnesses what you will, but make no descants
upon their evidence till you have heard them.
Then the two Witnesses were sworn.
X. C. X Wetl, look ye, you are both upon
your oaths, cousider what you say « speak the
irmh, and tell all that you Icnow, and Dothiug
but tike truth. Which ito you begin with ?
Mr. Fhipps. Jeffcry Gunn — Pray Mr Gunn,
did you go to the Hun-lavprn at any lime with
Mr. Cranburne? — Gunn. Yes, I did^
Mr, Fkippi. What day of the mouth was UP
Gunn, 1 cannot positively tell the day» it was
of a Friday-
Sir B, Shower. Was it of a Friday, in Fe-
brua'-y, or January ?
GuHH. It was m February',
3Ir, Ffiipps. Wan it before the plot broke
out? — Gunn, Yi^s, it was,
Mr, Fhippi. How long was it before the plot
broke out ? — Gunn, I cannot tell ihat^ truly*
Mr. Phippt, Whence did you go f
859] 8 WILUAM HI.
Gunn, I WB9 at the Cock-pH, and I went
from thence to the Sun-tavern.
Sir B» Shower. Whom did joa meet there?
Gunn, I saw captain Porter there.
Sir JB. Shower. What room were yon in ?
Gunn. We went mto a room next the street.
^^ir B. Shower. Who was there with you ?
Gunn. There was Mr. Cranburne, and I,
and Mr. Keyes.
Sir B. Shower. How longp was it belbre BIr.
Porter came in to you ?
Gunn. He came in about half a qnartm- of
an hour after I was there.
Sir B. Shower. Were you there from the be-
ginningr till Mr. Cranbnmc went away?
Gunn. Mr. Cranburne and I went from the
Cook -pit together.
Sir J^. Shower. How long did yon stay there ?
Gunn. 1 was there about an hour and a half.
Sir B. Shinocr. Were you out of the room
at all in that time ?
Gunn. Yes, 1 was out of tlic room once.
Sir B, Shower, How long were you out of
the room ?
Gunn. 1 went home to my lodging.
Sir jB. Shower. Were you ever with Mr.
Cranburne at the Sun -tavern at any, time be-
sides tftis ? — Gunn. Never in my life.
^ Sir Ik Shower. Whom did you leave with
him when yon went out ?
Gunn, Captain Porter and Mr. Keys, aa I
remember.
Sir B. Shower. Were you there before cap-
tain Porter came to him f
Gunn. I was with Mr. Cranburne, and cap-
tain Porter came in about a quarter of an hour
afler ; we came from the Cock- pit together.
Sir B. Shower. Vny recollect yourself, and
tell us upon your oath, Were you there when
captain Porter came in ?
Gunn. Yes, I think I was there uLen capt.
Porter caiue in.
Sir B. Shower. Did you go and leave him
there ?
' Gunn. We went all out together. I was
there about an hour and a half.
L. C. J. Nay, but you said you were absent
some time.
Gunn. I went home, and came back again.
Sir B. Shower. When you went home, did
you leave Mr. Cranburne behind you ?
Gunn. Yes, 1 think so.
Mr. Phipps. Did you leave captain Porter
with him ?
Gunn. I think captain Porter was with him
then.
Mr. Phipps. But, upon your oath, was you
in company with Mr. Cranburne at the Sun-
tavern, wlien captain Porter came first in ?
Gunn. Captain Porter went in and out se-
veral times.
Sir B. Shower. Did you see captain Porter
before you went to your own house?
Gunn. Yes, sure. x
Mr. Phipps. Then it cannot be true what
Mr. Porter says, that Gunn did not come la till
aflerwards.
2'rial of Charles Cranhume^
Att, Gen. Now, Mr. Gunn, 1 1
a question or two first,. Were yov
while that Mr. Cranburne was
you go home ? — Gt^iin. I went I
Att. Gen. Did yon come ^k
Gunn. Yes, 1 went home and
tuab.
Att. Gen, How long were you
Gunn. I came back in half a
hour.
Att. Gen. How far is it to yoi
Gunn, It is not above 100 yar
Sir B. iSAoiver. Did Mr. Porte
you before you went home, w
came in with Cranburne ?
Gunn, He came in after we
room.
Mr. Phipps. Captain Porters
came into the room Gunn was no
L. C, J. He did not say positi
he rcniembereil ; now I would asl
tion or two.
Sir B. Shower. Pray, mj lord,
from this evidence is this : Ct
says, that upon Friday the 2tst ol
was with Cranbnme at the Sun-ts
of one room into another ; he <
Cranburne, and talked with him n
ami after that Gunn came into th
the communication was over: i
swears he went from the Cock-
Cranburne, he was with him in
first when captain Porter came
afterwards he went to his own he
captain Porter with Mr. CraQ!)ur
back again, and they came aw;
now, we Ktiy, these two are incc
captain Porter swears that Gunn i
till alter the cominuntcation was <
L. C. J. As he remembers.
Mr. Phipps. Nay, I think he
he came in afterwards.
L. C. J, As I remember, he \
tive ; but call captain Porter yjjaii
Mr. Phipps, When you cuir;
year house, who were in the roon
Gunn. The same company as
as I remember.
Mr. Mountagiie. Was captain
room* when you came back ?
Gunn. Indeed I cannot direct
lieve he was.
L. C. J. Pray observe what
snyaj he says, captuin Porter can
and was there several times be:
awav.
Gunn. Yes, my lord, he was
L. C. J. And J ou were absent
bnt were you there some time I
came in ? — Gunn. Yes, I believe
Tiien Captain Porter cam
Att. Gen. Look \e, captain Pc
that man there ? — Porter. Yes.
Att. Gen. Pray give an accoun
know of that man's coming in tfl
Sim-tavem.
IBJ) Jhr High Treusofu
F^Ut, I came several times out of m
G«ofge Barcley^s room into UieirSf and to tbe
^of my retnembraoce, Mr, Cranl>ujne wi»
ilitn? tyf^fore HtuiD came in.
'-. D« jau rf?meo>ber wljtnher
: ii4t ^ou went out of sir George
^ riHitii la speaL uiiti ilr. Cranhuroe,
. luj was tbere?
/V*r/cr. To tUc best of ray remembrance be
*i* not ; to the k^it of my remembrance, Mr
f-vtjm, 1 NHiv Mr. Cranburne m ibc room be-
luic yoii V, -IS iber*.
hit B. Shnuer. Did yoo not order Gutin to
fiome Willi bim to the Sun-tavero T
Gorier. Ve«, 8ir, 1 did.
Sr B. Shof^cr, Caouot you tell whether they
«yM logetiier ?
Fmi^r^ 1 was not in the room wheD tbey
WBtt in lifstf but to tbc best of my ri^meni-
bmctt ba itaiE not there ivbeo 1 csme in the
tatmw.
LCmJ, Now, GuDD, you hear h hal cap-
Iti Forter iayi ; before you went awuy lo
fsirowti boucc^did Mr. Porter come into the
mm Id you P
Oayrn. Indeed, my lord, ( am not poattjve, I
.Att. Gen. Neither of them is positive, arwl
iL It % circumstaoce not very material ;** for it
Most lia waa abseutt imd toen the diieouiae
tiffbilMw
JL C J. No, it is not material, but you see
tfqtt ft itriet est a mi nation what it comes to,
Sr B. Shower. Th^y ava a^nrd upon it, I
, tiO b(! positive on neither side.
9kippi* Mr. Ctacbtune, pray aak Mrs.
Itrtial yoii have a miud.
' Mrttc* Pray w hat do you kuow of ca^)-
tib Bof1er*fi GTolng out in disgui^« and wear-
kfttlMm \xmx and vixardii, and goiu^ upon the
b^toay, ami tuch things f
Gtrrard. I kuow not what Mr. CrenUuroe
Hftia [41 which tile people laughed,]
Sir B. Skoucr. It is no laughing matter,
tkcn a loan ii upou his hte,
X. t-. J, No, no, lei him have fair play ; aa-
mm ikim cjaesttun*
C^^mk^me, Bo you know any thing of your
ttaitcr^a go«Dg abroud in ilbigiiiiiee ?
Q^rrmrd. I do uoi know any thing of my
WnttfUt^B foia^ upiin the highway.
!LC, J. Did hi* go uui vinh fizanh, or aiiy
Cirrard. 1 never saw him wear a vizard or
llbt iMvrd in aiy life, but he had «»uce a patdi
IB aftwn l>e waa foi\;erl lo keep out ofrhe way,
11(011 tbe account of the Dog'taietn liuMnej»&
ia Drury ■ huie.
Ilr. Pkipf^$. Bee if iMr. Edward Boucher is
hert. [He waii caile«J, but did not appeun]
%aB.SlwwtT, CftU Mra. BurPm. [Which
tnadwittf but ibe ^ uot appear.]
Hr. FMppi. la William Hardy man here P
(tfi^was called, but did not ap|>ear.]
Str B, Shauer, Then call Simon Dawfion,
ltd «e bai c done. (WUkiU waa done.)
A. D. lem.
[1^69
Cr^er. They are all called, but they do not
appear.
8ir B. Sko&cr. My lord, we rnunt submit it
to your b>rdship^$ direct iotis, upon the evidem;e
thut has been givi^n^ as lo the croilibihty of
tliiiae witiiai»!t^»and whether what capt Purler
says, and wh^U Gunu says, be consistent; so
that you can be saii^tied there are two lawful
credible wituesaes to prove any overt- act,
X. C* X Yes, aure ; but 1 would have you
debate it, il' you believe there be any thioif
in it*
8ir B. Shower* I subtoit it to your lordthip^a
direclions.
L. Ci /. The queaiioa is, Whether 1 should
give aoy directions at all ur oo« or whether
there be any occasion tor it ?
Crajiburnc. I declare thin openly l>efore ihii
honourable court, and ao muny noblt^meo aff
are here, that Mr. IVrler nrver made me ac-
quainted with thU design, till what he swore
here.
L. C,J, I cannot tell^ it is tworo by lire
witnesses.
Cranburnr, I do declare, though capt. Pea-
dergraK« says he dties not rememtier il, thai
captain Porter did decUre iu Bpring-gardee
tbe ^2d, when be came out of the Blue-Po^ta
by the rails, If this <leiign mi&carry, sa^a he,
Mr. Charnock may ihaok himself: for T never
oommunicated this secret lo any of my friends.
L, C J. But hark ye, do you conwder what
you say, If this drsigu miscarry ? Pray what
design wua that?
Cranburne, He never oamtHl any thing but
the design, he did not say what it was.
L.C.J. But why were yim employ t*d to
carry a list from capiat u Porter to Mr. Cbar-
uoclc, and lo Uijig a \kt back again froiu bit|t
to captain f^orter r
Cranhurnt. I did carry the note, but tlieie
was nothing mentioned wfiai the list was for.
L. C. J. Then you wme there on Friday
the Mlh, and thert the design wait propost^d to
assassinate the kiog tbe next day, and you en-
gtiged in it.
Crnnbume, Not a word of it true, my lord.
X. C\ J. Ay, but Mr. Peiidergm^ swt^rs
it, ami that you were hearty in the matter, and
hoped you shoubl do your bustnets the next
day.
Cranburne, I cannot b^lp it if he does swear
it.
L. C. X Then you were at tbe nieetiug •!
tbe 8uu- tavern, the 'i let.
Crefi6ern«. My lord, you bear what Guoo
aays.
L. C J. As 10 thai, they are ueilher of i hem
posiitive; but you did iher«: |iromise uud under-
take tbe matter, that captaui Porter is pobitive
in, thai it wsis ajriied by > ou all to do it tlie
2£d; and Mr. PetiderM-niss Bays, when yiiti
were dUappointed the Ifiih, you all agreed to
pursue tbeiiume deHitfu tlie^aVimlay following,
Cran^em^. My l4»rd, I did not dine at tbrfS
Bl ue- Posts tbal day.
L. C;. J. But you were tbere \ i ibi&k^ Ukr
S63]
8 WILLIAM m.
Trial of CharUi Cranhume^
deed, Mr. Penderpfrass savi you came in after
dinner, and ha\.d some steaks.
Cranhume. 1 neVer heard directly nor in-
directly of this design, till what I heard them
■wearliere.
X. C. J. Gentlemen of the Jury, You do
understand tor what crime this prisoner at the
bar is indicted : it is for higfh-treason, in de-
siflpninc^ and compassing the death of the king,
which was to be efft^ct^ by an assassination in
the most barbarous and wicked manner, that
any attempt of that nature can possibly be
made, being to surprise the king, and murder
him in hia coach.
The question, gentlemen, is. Whether this
prisoner be gnilty of this crime or no? There
nare been three witnesses produced that have
B*?en efidence against him, captain Porter,
r. De la Aue, and Mr. Pendorgrass; and
tliey do all tell you that there was such a de-
sign on foot to assassinate the king, as he came
from hunting at Richmond, after he came on
this side the water, in the lane between Brent-
ford and Tumhatu -Green. There were di?erse
persons engaged in this design, which sir
George Raraley was come from France to pro-
mote and manage : captain Porter, as it does
appear upon his evidence, was a person that
was principally engaged, and at that time was
hearty in the prosecution of it.
As to Mr. Cranhume, captain Porter tells
you he was a man that he had had a long ac-
Suaintauce with, and hod employed him, and
esigncd to employ him as an oiRcer under
him, in case a revolution happened, which it
accms about that time, and some time before
it, was expected. Captain Porter was to have
been a captain, and 1 think he designed to pro-
mote Cranhume to be his quarter- master ; and
he sent him to buy arms; and preparations
were made for that business ; but that is not
the thing that we are now upon ; the matter
that now properly falls under our considera- | li
tioD, is this : the coming over of sir George j i;
Barclay, the latter end of January, or the l^-
ginning of February last ; upon which, as it
seems, Mr. Porter was engaged ; and having
an interest in this Cranhume, and there being
horses to be furnished to attack the king and
his guards about Turnliam-Green, this man,
Cranburne, was a person thnt was engaged to
be one of the horsemen that were to make the
attack \ and he tells you that he did employ
him to provide horses* and swords, and to pre-
pare tlie pistuls; and that he did engasfe in it,
and |>articularly that the design was to be exe-
cuted on Satuitlay the 15ili of February, and
that he was then ready to go with capt. Porter ;
but on that Saturday the knig did not go abroad,
whereby the design was disHppoinU*d for that
time : afterwards, there was a meeting at the
Sun-tavera in the Slraml, where he met with
■ir George Barclcy, and others of them ; and
there comes to that tavern Mr. Cranhume and
otiiers, and they were in anotlier room, and
captain Porter says he came to them, and did
discoune sbout pursuing the design tbe ^mty
and Cnabnmt
next day, which was agreed,
was ready to go the next day. «
Then he tells you further, that the next day
being Saturday the 22d, the second time X\aX
this assassination was to have been execoled,
upon the desire of Mr. Cbaraock, who war
a person also that was engaged in thii de-
sign, c*aptaiu Porter writes a list of the mcD ba
could bring, and sent it by Cranburne to Char*
nock ; Cranhume carries the list to Mr. Chai^
nock, and brings it |tack again with an additioa
of tlie oamcs of Mr. Charaock's men nudm*
neath.
Mr. De la Rue is called, and he fweaia W
that very circumstance, that Mr. Cranbont
was sent by captain Porter with a list to Mr.
Chariiock, and brought it back again from Mx:
Charnock, with an addition of other namti.
Then Mr. Pendergrass telle yon, that he M
with this Mr. Cranburne, the prisoner at tkg
bar, the 14th of February, and Uiere was a dii-
oourse of going in pursuance of this daaga IIm
next day, and the prisoner agreed to it, wbiob
he is positive in : he tells you, that when tbay
were disappointed tbe 15th, being at the Dlw
Posts, they then agrreed to pursue it the. aot
Saturday ; Cranburne was cue of them Ihil
agreed.
Captain Porter and De la Rue inform jm
that healths were drank to the late king, aai
the late queen, and the prince of WaMs^ m
they calletl him, and then at length, ta Jba
concluding health, captain Porter, or soma tf
them in the company, having an orange iihil
hand, squeezed it, *and drank a health la da
squeezing of the Rotten Orange, which wH
Idedged by all, and particularly by Mr. Ciaa*
Kirne, as is proved by both captain Porter aid
De la Rue.
So that now. Gentlemen, I must leave it li
you, whether this is not evidence sufficieiitii
1*»rove this man guilty of the treason wheretf
le is indicted, that is, of designing and in
ing the assassination of the king, and beidcO"
gaged as a party to execute this design, inim-
ever there was an opportunity.
The counsel insist upon it, on the behalf of
the prisoner, that what captain Porter myt ii
no evidence : in the first place, they urge thtf
he is not a man of credit, for they have mm-
tioncd that he used to be disguiseil. and wctr
a vizard mask, and go abroad under odd cir*
cumstauces, and therefore his reputation tfaff
hope is not good enough to make liim a credible
witness aginst the prisoner : now the prisoner^
witness being produced, says slie uever knew
him go in disguise, or wear a vizard mask, bil
once he wore a patch, because he was
some ill circumstances ationt a riot in Drury-
lane ; every body understands what the mean-
ing of that was, his drinkintr of healths at a riotp
ous assembly, upon the 10th of June, and ha
being under some prosecution for that, ooca"
sioned him to wear that disguise, but it WM
not done to hinder any person, or do any mii*
chief.
But then, say they, he ia mistaktD \m Vk
J&r High Treason,
[iftdcfice, of the meeting at the Sun-taTern the
Sit of February, the day before the last^ that
• de$i^ was to have been executeft^ for
wtiarcas he says, that Gunn Has uot tbere u hen
hecune lo them, yet Gudii was iu the com-
puiy at that time, and whereas he swears po-
silivdy that tbey discoursed of goin^ ii|>oti the
Mine (iesi^ to assassinate the kinj^ the next
daj, as was agreed the Saturday before; Gunn
beard do sach discourse. Gudd is called, and
be teils you he did come to the 8uEi-taverii at
that titue, wiili Cranbume and captain Porter,
bteame inti) tbe room, and he heard no sncb
teourae. They did open it^ indeefl, that Gnnn
Mbem there all the while, and if so, then if
tfase bad been such a discourse, he must have
bard it. Gunn has been examined, and does
ten you be was not there all the while, hut
iicilool aod was absent for some time, about
klf a fjuarter of an hour
Tbey have made a question, whether captain
forter came in when Gunn was there ? He
mp trtily be thinks that captain Porter did
tmt into the room while he was there, before
k went out, bnt he cannot tell certainly ; he
mi there some time, while he was there. Then
eiplaia Porter was called a^in, and captain
P&rter does say be knows Gunn ^as there, but
tbetber he waji there at that time he came in,
l« cannai say positirety ; but Gunn savs cap-
tua Porter was going in and out several times,
H Porter says himself; and Gunn was absent
firwome pari of the time. 80 that f cannot
^ lOfrt of contradiction between tbecFi-
'that PcirieT gives, and the evidence that
f l^cs ; the one is uncertain, and so is
^er tts to that circumstance.
Geoliemei), they would infer, thai if
i was any such dbcoorse wliile Gunn was
, it must be of necessity that Gunn must
} heard it ; bnt it is not necessary the dis-
»ahou)d b* when Gunn was ihere : cap-
1Mb Porter swears positively, that there was
•neb ft diaeoorse of goin§; the nejct day to pur-
M» Ibe detiiri^ atid be says be thinks Gunn
HIV not present at that time when the discourse
itit, and Gunn says be was abcent some part
if the time.
Aad 10 I must 1ea?e it to you : upon the
if Mr. Cranbume, tbt prisoner
at the bar, did consent and agree to act in thia
bloody and wicked design, thtn you are to find
btm guilty; if you are not satisfied ofihat upon
the evidence you have beard, or you think there
is any inconitistency, or incohereuce in the tea ^
timony on the one side, and the other ; and
that there is good reason to disbelieve the eri«
dence against the prisoner, then you are to ac-
quit him. You have heard your evidence, and
you had t>est consider of it.
Cl. of the Crown, Who keeps the jury f
Cryer. There is an officer sworn.
Then the Jury withdrew to consider of their
verdict, and about a quarter of an hour after
returned.
CL of Ar. Gentlemen^ answer to your
names, John Caine?
Mr. Caine, Here. (And so of the rest,)
CL of Ar. Are you all agreed of your ver-
dict?—Jury. Yes.
CLqfAr, Who shall say for you ?
Jury. Foreman.
C/. ofAr. Charles Cranbume, hold up thy
hand, (which he did). Look upon the priisoner;
how say ye, is he guilty of the higii- treason
whereof he stands indicted, or not guilty ?
Foreman. Guilty.
CL of Ar. What good* or chattels, lands or
tenements, had he at the time of tlie treason
committed, or at any time since ?
F&rcman. None, to our knowledge.
CL of Ar, Then hearken lo ymw verdict a»
the court hath recorded it. Yon say that
Charles Cranburne is tyuilty of the high -treason
whereof he stands indicted, but that he had n'^
goods, chattels, lands, or tenements, at the
time of tbe high -treason committetl, or at any
time since, lo your knowledge, and so you say
all— Jury. Yes,
Mr. Caine. My lord, tlie jui^ humhly de-
sire« they may be discharg^ irom their at-
tendance to-morrow.
X. C J, We cannot do it, unless the jury
be full without them ; if you come early, we
shall dispatch you presently.
Then the Prisoner was taken from the bar,
and tbe Court adjourned till aeven oVtock ttie
next morniDg,
S WILLIAM IIL
! Trial qf Robert Lm/alch^
588- The Trial of Robeht Lowjck, for High Treason : S Willuj
IIL A. D. 1696/
April ^t, 1696.
1 HIS day ihe justices «f Oyer and Terminer
hotden for ttie coiiniy of ^Itdille^ex, mtt, and
tHe court was resunud by pro c tarnation in usual
form.
Cltrk of the Arrmgnments, Keeper of Ne\v-
fl[«le, vet Robert Lowjck to the bar, (wbicli was
done). You the pn«oner at tbr bar, R»bert Txi-
wick, those men that ^uu shall hear ealied
and personi^lty a|»pear, are to jiass between our
sovereiffD lord the kintif aud vou, upon trial of
your life tind death ; if thtTeforc you will chal*
lengethetn, or any of them^ your time Is to
«|>ealc nnto thetn as they Come to the book to
be sworn, atid before they be sworn.
'Mr. Mompesson, If your lordship pleases to
favour me with one word For the i^nsoner at the
bar, I shall not trouble your lordship with any
Uiin^ that was ut^ed 6y the qfenttenten that
were of counsel j^esterday, but 1 sliall rely
upon fiomeihing that has not yet been s^xtkeii
to. My lord, they have not laid any time or
place whei'e the consent or a^eement was, for
the forty men that were to set upon the king
and his guards: there is a time laid before
where they met and discoursed of the wayi
and means how to assassinate and kill the king^ ;
iHit when it comet to the ' Assenserunt, eon-
* sfifiMrunt^ et agreavenitit,* with submission,
this being* another act^ there ought (o be ano*
tber time and place laid, and for that 1 shall
eite your lordship two or three cases j for men
may meet and propose, and dt&course, and con-
»ult of such things J ihonj^h they he very ill
things, and yet that may not be treason. It is
the a^rreement that is the treason^ and so it was
hell I in t^aotaiu Bl aqua's Case about taking the
Tower. They may meet at one time and place,
and at another time and plflce they may agree,
in Dyer, 6B H. nnd 09 PL 93. i man was in-
dicted for murder. That he at sucb a place in
and upon the pers«jn that wa» muj*dered, ^ in-
^ gnltum fecit, it iphum,' the person that was
murde«;d, * cum qiiodrtm cu!le!lo,' of such a
price, ' percussit ;' and be does not shew the
place where he struck hini, nor had the indict-
ment the words » ^ ad tunc ei ibidem/ and there*
fore the court h^ld it void : so it is likewise
ruled in Goodi ick*s Cast-, Hell. 35 el 1 19, and
therefore in indictments for murder, since they
geoeraMy set (brth not only the time and place
of the assault, hot likewise of the blow ; so
likewise in thmirs of a more interior natures as
reacucs returned by the isherill', ilirU the Capias
waa served, but does not shew wfiere the rescue
waa; or tbou^^h be j^hewg where the arrest
was, and an * et' coupled the rescue to it. yet it
was adjudged an ill return. Dyer 69, PI. 59,
10 Edw. 4. 15Fit«. Ret. Vice. 3^' Bro
Det. Bre. 97» and Error 193. Palm 56
ill N'oy IH, there are tUe-e words, ''
was tnoveil in discharge of rescue, (
was, that they, vi^. A. B. aforesaid, i
' ad tunc et ibidem vulneravemnt,'
the aforesaid George, &c, ' Iic^4-.*.^*«.
without *■ ad tunc et ibidem,' re^Serred
tiie ♦ rulneraveiiint/ and not to tlie * n
' runt,* and theretoi-e the return was ailjo
insnfficient; for, my lord, aUhon;;h in
Teyaticea. a clause or word in the beginoj
end may refer to the whole, yet in ind id
every sentence must he certain, plain, and
press, and have its own time and niace :
fore in Noy's Rep. 122f Uaymond wasi
for slopping a cross- way leading from a
vilie called Stoake, into a ville cal' ' ^'
the county of Dorset, and the »
quashed, because in the * county ui L/«rsei
refer only to JMtflton, and not to both:
indictment of forceable entiy into a mej
* existens liberutn lenementum* of J. S.
good for want of the words * i^d tunc,*
the participle * existens* does strongly
that it was his hoti»e at that time, 3 Cro.
Het. 73. Noy, ISl. Palm. 426. Bridg. sg
3 Cro, 214, et 610. Sid. 10*2. Lat. 109, Ac-
And my lord Coke tells tis in Calvin's C
5 B, that indictments of treason, of all othi
are the most curiously and certainly iud
and penned; and all those that I have
-and obMTved, have contained more cei
liian the indictment now before your Ui
In Reginald Tucker^s Case, the iudii
wan, That he and Thomas Place a pud
water. In Com. Somersett. piiediet
saver nut, to kill and denose the king, ^c,
to bring their treasouniole purpos«!is to
tliey the said Begin aid Tucker ai»d Tl
Place, the same day aud year, at Brid^
albresaid, in the county uforesaitl, againi
king, with a great multitude of peopk% ar
in a warUke manner, viz. with swords,
* seipsos illicile et proditorie insiund ail tunc
* ibidem congregaverunt et astern blaverunt
* Ifuerram puljlicam conlru dictum Domini
* Begem upud Bridgwater pried ict. in Cotn.
^ prfedict. dicto vicesimo Die Junii Anuo pritoo
* supradiclo proditorie pamvprunt, ordinaverunt
*■ et levaverunt.^ 8o in the indictment of Gati
ns it is set forth at large in a plea in t»ar oj
Dower, brought by his wife, he uith force
arms, *■ apud villam de Ware,' ike. assembleil
with a great many pefNons, •* et helium cnrdele
' contra dictam Donniiaiu Beginam apuil VVare^
*■ pnedict. ad tunc fals^i el proditorie puhlicavil
* et levavit, ac insuper ad tunc et ibidem falso el
* proditorie,* proclaifUfd the duke of Nnrthttm^
bertand, to be lieutenant-general of thtir forces}
* et etiatM fal&o et proditorie apud Ware predict*
4
Jot High Treason*
ir^' proclaimed the lady .^^an Dudley
Tbis is in DiMidluwe*s Reports, piib-
»y Serjeant Howe, fol. 55, placito91.
p ear! of'Leic filer's Case, PInwd. Com.
indidment is Inid much alu-r the same
anti many otlicr indictments, which at
f am uiivrlllin^ to trouble jour loniship
111 this bcin^ one ot a new fonn and of
impression, f hope j-our lordship will
isufHcieiit. And, my lonl, when they
Ty antI say, * £t quilibct eoruni prodi-
per se suscepit esse unum,' there is no
time alleged where th^it was done,
necessity should be mentioned : for it
taot rule*in our books, tliut what is is-
ught to have a jdaoc where it may be
v^w, this is issuable, and the most ma-
\t^ in the indictment is, for compassing
*» death. The overt-acts are. That
ler Koit^htley the prisoner, and two
d cousult to kill the king- ; and after-
d agree how to do it, viz. hy forty
, (^iionim these should be four, and
* at thein did agree to be one ; then
> other overt-act of providing arms for
lotr suppose they should not prove
Yiz. the providing arms; then, my
' must resort to one of the other overt-
thej»e four did consult and agree to
ing ; or that these four did agree the
ow to do it, as is laid in the indict-
ri it \ft plain they must foil of proof of
:hese ; for by the not prosecuting any
; name of Christopher Knightley, but
\ a r.ew inflictment against one Alex-
ishtlf-y, it appears that Christopher
p was not there ; and the proving thrse
PTs making a consult ami agreement,
•riiijt' (if the same overt- act tliat is laid
Sctmenf, as it ought to be by the late
as tlicy can prove that a consult of
consult of four: and if it be answer-
t is allfj^eil, that * Quilibct conim su-
Q^cepit,' then will that come to be is-
nd tlie most material part uf the in-
; and consequently a place ought to
1 laid where it should be tried ; tbis,
is a distinct sentence of itself, it is in
k>is. and though you take it away,
of what remains is perfect and intirc ;
pqnently tbis sentence is or should be
tscif, and therefore ought certainly to
shI. Besides, if your loniship pleases,
losititely laid, what these persons se-
nd prtmik to be, there is indeed uien-
le before of forty horsemen, agreed
!»et u[»on the king, thru comes the
-i*, ' Quorum iidcm Chnstophorus
Icy, Robertus liOivick, Ambrfjsiiis
c«>d et Carolus Cranburne forciit »jna-
l quililiet eoruin priMlitorie ^siiper se
I esse ununi.* It is perhaps expressed
o^'b by the word * Quorum,' that it
^rd tbese should be four of the forty
i; b*it there wants the repetition uf
• Quorum,' to express what they se-
Bg^g^ tu be ; and the word * ct* cau-
A. D. 169G-
[«70'
not join and connect the sentence! : for « forent'
anil » suscepit' differ not only in number, bat
also in mood and tense, and the sense is not ne*
cessarily coherent ; lor it might be true, that
the majority of the company might agree these
should be four, and yet they themselves might
not severally engage therein, and one or some
of them might undertake it, and yet the com-
pany not agree to it ; and it cannot be mended
ny intendment. There was Vaux's Case, in
the 4 Rop. 44 ; he was indicted for murder, for
fiersuading a man to take Cautharides ; it was
aid. That he ' persuadebat eundem Nicholaum
■ * recipere et btbcre qucndam potum raixtuni
' cum quodam veneno vocat. Cantbarides ;*
and the indictment says, * Quod pnsdictns Ni-
' cholauf nesciens preedictum potum cun Ve-
* neno pncdicto fore intoxicatum, sed Mem ad-
* hibens dicta; pcrsuasioni Willieimi rec epit et
* bibit ;' but docs not say, * venenum pricdic-
' turn,' but yet it adds, *Per quod pnedictus Ni~
' cholaus immediate prist rec^ptionem veneai
' pnedicti' Ianguishe<l and died; here, one
would think, was a sufficient implication, that
he took and drank the |ioison ; but it was ruled,
that none of these words were sufficient to
maintain the indictment ; for the matter of the
indictment ought to be plain, e^ess, and cer-
tain, and shall not be maintained by argument
or implication, and therefore for want of those
words the indictment was held insufficient, and
the man again indicted for that offence; and
there seems much more incertainty in this in-
dictment, and therefore I humbly prayyonr
lordship that it may lie quashed.
Sir B. ShoTcer. ^Iy lord, we think the ob-
jection is lully put, and therefore we desire to
have their answer to it.
. Alt, Gat. (sir Thomas Trevor). We think,
ray lord, this objection will receive a vtry plain
answer. The indictment sets forth, That at
such a pbre the prisoner at the bar did ima-
gine anil compass the death of the king : there
is a parliculur case \^ here the imagining was,
and that they, to accomplish that treason, in
compassim^ and iin-«o|ining the d«*ath of the
king, did, among others, * po&tea cisdem <Ke et
* anno apud parochiam prtRdictam,' meet and
consult, &c. so there is the same place set
forth again, wherein they fljd meet and consult
of the ways and means, und time and place,
when, where, and how to assassinate the king:
and immediately it follows, * et consenserunt ef
* agreaverunt,' &c. that forty men, whereof'
they were to be four, and every one of them
undertook to be one, should do so and so. Now,
my lord, say they, it is not said that the agree-
ment that there should be farty men to do if,
was at the same time and place where they
did meet and consult abo:it the ways and means :
but, my lord, with submission, '\{U very plain,
that the agreement for forty n»en, and the par-
ticular agreement for them to l>e of the num-
ber, is but the effrct of the coasuitation that is
mentioned just before: for it is said, they con-
sulted how they should do it, and they agreed
to do it in this manner ; tlie particular manner
I
I
I
I
fri] 8 WILLIAM in.
h set farth imme^liately after that, it b said
ihev diU consult of the manner ; so that, my
lorJ^ It IS part of the lormer sentence ; a parti-
GutarrEioa^ of what thpy did a^-ee upon at thai
Consultatfon ; hut it h no distinct overt-act: if
it had bi^n a distinct overt-act, then the cases
that hai-i? Iieen cited by »be counsel, do *hewr,
that there should he a particular time and place
Ijieutioned for every overt-act ; but this is only
a part of that overtact that was mentioned
geni^rall y before : thin tells you purticularly
what the means were they did ajfree upon, and
the spDteiice is ool compkte till yuu have gone
o?er this; so that, my lord, with suhoiission, it
had h<jeD very improfier when they agreetl at
such a time and place, of the means and ways
how it should be effectet!, then to set forth that
it wan at the same time and place where they
did consult of the way^t and means, that cannot
be proper ; for it in not laid at tirst, that there
was any particular way ]>rofK>Bed, hut ordy in
^Oeral, they coiisulteff of the ways and tneans;
therefore, my lord, all this that Mr. !\1ompesson
has said, wilt not be pertinent to this case, it is
impossible to htive been otherw ise ; it is hut a
part of the sentence ; and it is not complete till
you have gone over the several particulars: as
to the Case of a * Rescous/ that is, the offence
upon which the matter is to be grounded ; the i
^ Verheravit* and * Vulnerarit* are not the res-
cuing^; but where there is not one sentence
complete, till you come to the end of these
wonls, there it must he all taken together ; so
it is here, they consulted nfth? way, and agreed
this to be the way, which they set forth in par-
tjcubr : it is joined to the former part of the
sentence, and the whole is aot complete with-
out it<
Sol. Gen, (sir John Hawles) With sub-
missiou, my lord, it cannot he otherwise, nor
can they make it sense otherwise.
L, C, J. (sir John Holt), They say you
might and should have put in, * ad tunc et
* ihtdem.'
tSaL Gen^ With suhnusaton^ my kird, f say it
cannot be repeateil aguiu : indeed, if you would
make it like the case, as Mr. Mompesson would
liare it, that forty men did agree to it, and
forty men did it, it were necestaiy to name
time and pbce, as it is in the case of murder :
that he did agree to murder htm, and after-
wards knocked him on the head, there you
tliall lay time and place where he agreed, and
where he did the act, for there is an act done ;
hut in this ca^e there is uo act done, but only
an agreement that forty should do it, whereof
these lour were to be part of the namher. Now,
Ihey cry, you do not say what these fonr were
to be for. Yea, we do: the forty were to do
Mitch an act, and these were to be* four of that
forty, and every one of them undertook to be
one ; so that it cannot be expressed otherwise
ihnn it is; for what they say of the indicl-
ment's being not in the same form that other
indictments are, that will be no argument at all ;
for it does nut follow, that there must i)e one
iacpressed form of an indictment -, of right there
Trial of Robert Lcmck,
[ST
are divers forms of indictnieiitt, and all of
good, because indictments are to he fi
according to the particulal* cose, and they
not put me iin instance of such a parttcuJ
case as this. As to that of the mistake of tl
name of Koightley, that UDCjuesiiunuhly can
no oSJcctiou at all i for how does it appe^
the court, that this is against the same pena
that was before indicted by the name of Cbrti
topher? there may be another Chnstopher, f«
aught they know : hut 1 will sup|»o*ie, tliat th
consult Wits prAvcd not, as it h laid, that thef
were to be four ; but only that they ware to IH
three of them, it would be well enough agaitu
the prisoner ut the bar, if he be proved t
he one,
Mr. Convert, First, we have here laid a tiin
and place for the treasoa alleged in the iodid
ment, and als^i for the two overt- a<;ts, hon
when, and where it was to be done,
providing of arras for it ; and lor this pi
of the forty men, that they would have
the *• ad tunc et ibidem^ to that^ is but part oi
overt-act, which was before allegetl ; ti
first overt -act mentioned, is the mi
r;ousultiog, and tliere we lay both ti
place ; that on such a day, and at such
they did meet and consult of the way
ner bow to do such an act : and then we
tinue on the sentence^ by particularizing
it WHS to be ejected ; that they did agre^f
should be forty horsemen to do it, whereof
were to l>e four: this is but a part of the or«i
act, which is the consulting and agreeing upfl
tlie ways and means; this particular mea
agreed upon, being but the result and efieet
the consultation before : so thai wc oon<
there is no want of time or place upoti wliioli
take issue uv tins case.
Mr, Cowpcr. My lord, I think, with si
mission^ there is nothing in their objection, j
I take it to have received a full answer alread j
yet I would ask one thing of the gentlemeo
the other side, had the sentence run wi '
the words ' de iis modis et niediis/ Sec. wbi
follow alter the word * consultavit,* and befoi
the words * et agreavit;' in this manner,
they did then and there traitorously tn
pose, consttit, aiid agree, that forty ho
or thereabouts^ with guns, and so forth,
then tbei% had been any ct^lour to think it m
oessary, that it should be laid in this maai
That they did then and there traitorously
and then and there traitorously pro^
then and there traitorously consult,
then and there traitorousl)' agree : and
then I would desire them to tell me why '
*• and there' is more necessary to one verb *
^ agree,* than it is to all the rest, in sense
common speaking. The only use of a
junction copulative, is to derive the f<irce
some words, in a seutenoe foregoing, down
a sentence following, to avoid repetition :
here, though after the consultation be
many word* that ivkte to that mutter, by w
of parenthesis ; yet the * ad tunc et ibidem* ai
dees refer to all the verbs following,
High Trea90tt4
joined by the cODJtniclimi copulative ; it does
fiOC ?arj Ibe case M all, the uniting in that pa-
i«iillie«ifi ; il U autiwithstantlmg bui as one sen-
l(niQ^: Mid the «upposuig tlirit the parfirlhesis
' , makrs it very jtlala, there can be uo
there wanted a repcliuoii of the
Jem* t*j every tcHk
ft. Wiih siibmissioo to your
fl'^ment, there is no ftnsuer ramie
ihjeetioii, I do a^ree, if tlii^rc Isad lietfi
rtrbs, and no other vienls had inier-
ttned, Ihjl an ' el' would have coupled alt to-
mAt-v. jTivi' vuu need not have rej«eated * ad
Bii m* to every otic: but here is a
■t rerbs, that makes one complete
r gsenlciice ; add if lht« ut' the furty men
' lel\ t>ut, it had been a ^oud ^seDteocei that
di4 propo^ and treat hour, where and
th^t is a sentence of itself, the cooSult-
treatin;^ of the wuys and means :
lltey say« * and they did at^ree and a«-
il forty should do it? now there is nu
ity for the interpreting' of these words,
llliey fthould ron^ult and ;igree at the saine
riotl lime; there is no nec^&sity to eon*
t agreement for the forty nicu with the
>ttott ; they ini^Ut propose and consult
i time &od place, and not agrt^, and after-
•^ree at another time and place : it is
«al« i^ieoificiition^ or, as they call tt, a specific
ml of tbe consultation, Dor a necessary
I «if it, !io as to make it necessary to join
|i>^ibor; ihey might meet and consult
ttooe lime and plaee, and at another time and
fkofihey inigbt agree that forty ^tioitld do it;
'i tkefefare when vou ^y at one lime and
) thty did consult and propose, ami i\t\er-
' I they did ag^ree ; it is not nt^cessarity im-
it muDt be at the same time and
I I «iid when it is not necessarily implied,
' Ilk it necessary iu ijidictments, for cer-
-sskc, to have * ad tunc et ibidem' in-
Ir. Miifnpcsson, My lord, 3Tr, Solicitor Rays,
> to other precedent^, that does not make
ary that this should be like them ; and
tl k *oo argument that it oujjlit to he so
My lord Coke, in Calvin^s ease, tells
bat Tl}* precedents the law is known, and
' nX3 of treason are of all things the
ly penned ; and it is comtnoti to
iJrr the bw is so, because usually it is so in
Ibe pTTcrd^-nts of indictments. Mr, Solicitor
^p^ ■ ' % That there may be a Christopher
^Ki ^ides an Alexander ; but I cannot
^p» thai Mir an answer to the exoeptioti I urge,
^■kb b the want gf * ad tum^ et ibidem^ at the
^^onitit aod the ' Quiltbet; for the ' Qruilibet'
fmy eocne to be in question as the most mate-
ritlpart of the indictment, h«?cause tbe ag^ree-
iDeatof the four upon the meeting of the four
illfged as an ort^rt-act. Now, with snh-
Mon, they iiui^t [trove the assembly of tbe
' t four, or they do uol prove ibe overt- act
' ' laid ; then as to the ^ Quilibet sus-*
^ which is the iDoit'ra«Xerial ptkit^ it has
^ tior pUce.
[>0^ Uil
A. D. 1696- [97*'J
Jtt* Gen, No sure : we do not need to prove
all four, for it is a distinct offence in eat h, and \
if any one undertook, it is well enou;^h aguinst
him : and fur the lime and pbt^ we tell you ifr d
is part of the former aenteuce, and makes hul j
an i til ire one.
3tr. Momptsion^ As for the residue of th^ \
vcrtxif tf ihey had Ireen omitted, it had been <
good sHise \ hut this is a perfect intire 5^entenca|
<dltself, when it tells you what they coii'4idte4
and treated of, as in the Ca^ of the Rescud4
that I put; if il had stoppcfd there, il
been a troud sentence without the *■ Vulnera-
* verunt/
Alt, Gtn. The ^ Rescous* is the offeuce
that ca^e^ the other is diAiinct : but here, lit ■
this case^ oiithiug can he plainer than that atlj
IS one act» as we have laid it, That at such ft)i
time and place tbey did consult and trtat of the j
ways and means; but then there i« no agree-
ment mentioned till after we have said tbey did
cousult of the ways and means, and did agre
that this »hoidd W the way : thus is certainly]
one eutire sentence that shews what the i _
ment w a^ upon the consultation as the resoll
of it.
Mr* Cowper. As to what sir Bartholome\r-^
Shower says. That we ought to repeat the ' ad J
* tunc et ibidem,* unless the seiiKe ot the \TQrd#J
implies a necessity that the consultation amiJ
the agreement should be at one time and placesd
My lord, there can be nothing in that, for tt^
does not arise from the necessity of the thin|p*
one way or the oilier j hut we take it as a& in-
tire sentence , and that the whole matter is suffi«^
cicntly cofinecied, and laid to one time andi
place, thou;rh It might be divided, it must hmJ
taken, as atlegedj to be one intire fact, or elsaj
it recurs to the same objection, that * ad tunc
* et ibideui' most as wefi be put to every verbj
fnt it IS possible they might propose at one tirai
and place, and consult at another, and deb
at another as well as agree ut another : so tha^ J
noihiiig is to be argued from the necesaity ofi
the thing more in one case than tlie other ; for f
one man tuighl propose it in one place, and th# ]
rest might , then shake their heads at it; andj
then they might again meet and constdt at ]
another place, and afterwards agree at a third 1 1
but when it is said ' then and there' they didV
meet, consult, and agree, it cannot l>e under-
stood but tliat the Agreement wtu at the sam«^
lime and pbce with the meeting and consult.
Sir B. Shower, But this can be no answeff. j
that Mr. Cowper gives now, for proposing, and^
I consulting, and treating, and debating, are allJ
of the same signiticatioQ ; for one man^s pro-
posing to another, und the other*s proposing IqI
him, is consulting, treciting, and delmtii:ig ; bnl'j
now coQsultiag and agreeing are diHeren ^
things.
Mr. Cowper. So is proposing and consult-
ing: one may propose : but there must be i
least two to consult ; tliere is thai nice {Jiffer^
^ ence between them.
Sir B, Shower. Epery ooc roust «|pnee foj
hbtiseU; and that mu«t be certainly l£d wii'
»T6J S WILLIAM UU
time and nface, let the prb^^osul and consulta-
tion be what jt wilf.
/.. C. J. Mr. IVfompessofi [mis that Case in
Dyer upon an indictment of murder. That oti
auch a day, and at such a place,* the party
nnade an assautt upon the persons slain, * el
* percuisit;* but dnes not say, * Et ad tunc et
* ihidem percu^sit,* and for not aJJegmg lUat,
the indicltnent' was held iiong^ht.
Alt, Oev. My lord, that is a different case
from this, because ' insuhnm fecit,' and the
* percuss it,' are different crimes ; there is« a
great difference between an aasault and a
atruke ; hut here it is^ That they did prop<j«e
■nd considt of the ways and means, and agreed
upn this particular way *, that is the same
thinfj; it is not an enlire sentence till y<in come
to the end of it, then it is complete wh^n you
ahew tvf)ut was the effect of the consultation;
whnt I hey were agree*! Uj»ou, and not tiU then.
Mr. Miffnpeiioii^ A roan's hohKou up his
hand is an assault, but he luuat actiially strike
In be guilty of murder: so a man may debate,
and yel not agree : it ti the agreement that ts
the Irc^i^on.
L. C. J- Bead the Indictment,
Cf, of Ar. * Decimo di*? Fcbruarii anno
* Regni dicti Donuni He^is nunc septimo, et
* diversis uliis diebus et vicibnt , tani antea qufem
* postCii, apud Faruchiam Suncti Panii Covetit-
•^ Garden, prftnlict/ in Comitotu pra^dict', fals^
' waliti'-' ' ' tiei^, pfoditoii^, compassare-
* runl, iji r machinati fuerunt, e3cco|fi-
* tavcruijk. *it:-i-iiaveruDtetintendebant dictum
' Bomitmtn Reg-era nunc occidere, inter ticcre,
*" et Tuurtlrarei et atra^em miserablleni inter
* fiiletcs subililos ipsius Domini Ilcgis per totntn
' hoc Uegnum Anjjlioe facere, et causare, et ad
*• easdem uefandigsimaa, Deqaissimas ct diaho-
* licos prtiditiones at proditorius compassationfs,
* niachinAiioneiJ, et proposita sua pnedicta f»e-
* rtuipleiit1*j perficiend*, et ad effectiim redigend*
' ipsi iidem Christophorus Knigbtley, Roberlus
* No inilictn^ent (as to the dirersity in im-
peach mentis, see in this Collection the Cds« of
fold IVinloiui, a. d. 1716) can be good with-
out precisely .shewing a certain day and year
of Ine facts altr^cd in it, 8ee Leach*i Hawk,
PL Cr. b, 2, c, 25, s, 77, 7$, and the authu-
rities there citeiL See^ also, lord Kenyon^s
judgement in the King against fTollandp 5 Term,
Rep. 624, G?5. But it is sufficienl in an in-
dictment for treason, as in other cases, that a
lime be laid before the finding' of the bdi under
which may be proved any acts commilled be-
fore the finding of the bill: and as to place in
canes of treason within the realm, it is sufficient
thatan overt-act be proved in thccnuniy where
ttie indictment is laid und the trial had. See
in this Collection the Casc^ of Charnock, vol.
12, p. 11*78; anJofh»rd riulraerino, a. D* J745,
East's FNeas of the Cn>un, chap. 2, sect, 60,
6J, and the authorities there cued; and for
mure, IIS to ihe place where tteasons com-
Qittted abroad or at home, sUull be tried| see
$ecU iO, 41, of ihe&uuie chapter.
TfM ofRoigrt Lowic^t
[J
* Lowick, Ambrosius Rookwood ct Car* *
^ burne, et quam plurimi alii falsi pr<Kbli
* (Jyraior' prtedictis ig^nof i) pottea,
* eodem decmio die Februarii anno sup
* apud Pan»chiam unedictam in Com* pr
*■ dieto, ac div ersis alii$i diehus et vicibua^ tan
* an tea quam postea, ibidem et ahbi io (
* Com\ fals^, inatiiio^^, adv tsAt^, clan
* proditorid, ac vi et armis coii«eniebaiil,
' posuer*, traciaver% cnnsuUaver', cons
* et agreavei% ad ipsum Dominiim R«_
* nunc ex insidtis et dolo ptTcutiend*, An^lit
^ * to assassinate,' interticiend^ et tnurdrumi^ <
' ad e^ecrabilera, horrendam et detestabilem
* Aasas!ii nation', AngUce *■ Aasassinaiion,' et lo-i
* terfectionem ill* citius exequentr et perpe*]
* Iramr postea scilicet etsdem die et anno,
* di%ersis aliis diebus el vicibtis, npud Paroeh
' pned* in Com' pnedicto, proditori^ tractav cr'l
* ptoposuer* et contiultaver* de ?iis« modis m
* mediis, ac tempore et loco nbi, quaudo, qtmil
'liter et quoroodo dictum Dominuiu Re
' sic ex ini^idiis tacilius tnterticerent, et
' senser*, astrea^erunl et asseuser^ qu<id qui
' dragint* liumine^ E«juestrea ant m drcitei
* (quor' iidcm Christophorus K Ho-
' bertns Lowiek, Ambrijsius Rn i Car*
* Cranburtie forcnt quatuor, {vi qiuiibct eot'
* proditorie super se suscepit esse unum) cu
* bomhardiSf aclopis et scJopetis, ptikere I
' bardico el globulis plumbeis onerat% et (
* e lad lis J en si bus et aliis armis armat^ instdia
* forent, et cssent in subsessu, Angiice * ia
* * ambiuh,* ad eundein Doroinura Reg em
* Rheda sua, An^licc * hb coach,' exislenF
* quando foris iret invadeiid% C^uodque qu
' dam et competens numerua de hominibus dij
' sicarmat' in satellites, Angiice 'the guar
' ipsius Domini Regis eum tunc attendend' i
* secum existen' aggressi forent, et eoi i
*■ uarent et devincerent, dum alii eorundem 1
^ minum sic armat' ipsum Dnmtmim Re
* percuterenti inierticerent, occidereot et i
* drarent.'
Mr, Mompeison. The consnlt is like the ti
sault, and the a^eemcnt is Hke the Ktroke.
L, C.J. Trcotf. Jl is a nice ca&e
would have itj but 1 tliink it is very nutu
the king^s counsel put it at iii^st ; they j
c{insuhation of the ways and meant
fihoutd be done, and then they condod
thii!> it sJiatl be done : all whicli makes I
iiiUre thitjg.
L. V, J. They say they met that da
Paul Covent "^arden, that is in ihe in
and did consult how to kill the king ;
consented and agreetl among themselv
it sliould he done in this manner : doth not tiki
refer to both time and place in the beginning j
It is a coiitinuiug on of (he satne sentence, i
makes all but one and the tame act; it it 1
result of the consultation at that tiiue
place.
8ir B. Shmt'^r, But, my lord, it might bei
another place : they might considt at on
place, and conclude at another.
Mt, Cont/crt. But it is laid to b« al the i
irf]
ftxr High Trdoitm.
pUoe, for no otlier |»lt€e does appear, «nd it k
•Bft conttDueii sentence.
L^ C. J^ Triffty. You would make the repe-
litidfi e€i frequeat and reiter^iud, llitt it would
became ab«urd*
Ait. Gen, Indeed 1 do not know wbat tdese
I would bate*
. Slower. We wouM ha?e ihisindict-
aJI otbers «i^, the precL-deitts are as
, and we hope i\m shall pui-sue them, or
i <|i]ashed.
L. C, J. Look ve here, m Bartholome^v
^ower ; suppose this part ftbould licit he right »
that will DOt viiiate the whole indictment.
^Mamputtm* Bui your lonbhtp will not
k to ^ife evidence of that part that
C. /. Vea. yea ; it eomes wUhiii tiic fi rst
( of the time aotJ place laid ; Ihey nay
fift evidence of it, because this is hiU a setting
fMtb for the maoDer agreed U{>on for the exe-
«BlMi of the deai|f 0 that wan before consulted
iai treated of; it is com preh ended in the
ftmtr ward»; and ii' they had omitted thia
ait «f the iiidictfuentf the indictaient had never
fceeo the worse; there had been a t>uffieicnt
onrt-act alleg^ to prore the eonapas<iiug and
iaa^iiito^ the death of the king^ ; for if people
at such a place and tiKie meet and propose
tie way and means how to effect it, do you
think the indietmest would not he goo<l enoutj^h
%tfbout lading the particular means a^reeti
upon f Certainly it hid been well enoug-I) if
ikia had l»een omitted. Do you think they
wmwA gire this in evidence as a proof of the
4nrt-act f Certainly they may.
^ JL Skofmer. The question will be, my
apou the whole. Whether the con-
I of the indictment * contra legiautrie suae
m,* shall be taken distribu lively ta
t f And if BO, then there ought to be
plac« alleged to every f»cl-
tSiip|K>se yoti lay several overt-
ada, and prove but one, yet he is lo l>e fonnd
fiilQf of the hi(^h- treason, which is the ima-
gfiloff ood compiissin^ the death of the kiog^,
Vik» ia the crime laid in the iudieiment ; theti
I thia waalelt out of :J^ndJctment, they
^♦e it in evidentie a.» a proof of the
Sf«ft-act, that it is well hid for time and
piaee ; and therefore though it be e^cprenKed,
aad uoC ao fully and [tarlicularlv l^id, we cuo-
DOt qoash the mdictmeM for it, Cjecau^ the in-
diattpest would b^ve been gfiod, though that
kadtweii omitted. *
L. C. J. iVe/jy* Tbnt is certainly true, it is
tocaase tor quufihiog the indictment.
SoLGtn. The indicimenU Jtirainst the Ue-
pfidimf were fi^r compaMitJX the deuth of the
taugt and they g^ve in evidence that he was
pyilodealht iboctgh ihey churged in the in-
vetaacoi, only the c^im passing and imagining
Ika death of the king.
* liiee East's Fleaii of the Crown, chap. ^»
^46, aad Layer's Case as there cited,
t tiaefol5, p. ^7.
A. 0. lEm. [JT8
Z, C* X Ay, sure, that is an orert act with
a witness, the tndicUnent was not laid for mor-
dering the king, but ior^mpaselhg bis death,
wliidh is the treaaon accordukg to the act of
partiameot of Sd £d^ d, and as an overt -act
they gare the cutting o0*his head in eridence.
Att. Gen* The indictnieni says, they eom-
pastied and trnxigined the king^s dealh« atid
they agreed to do it in this manner ; if thiji he
not ail one inlire seateitce, I know not wtiat is.
L. €. J. As to your case, Mr. Mompesson,
which you quote out of Dyer, it is posaible a
man way make an assault at one tune, and at
another time make an assault and give a str<ike ;
hut this is all one aet, it does hut specify what
was generally consulted of and proposed.
L. C, J. Treb^. Pray, do yon think a man
may demur a poo a eommon action of battery,
where it is said first, at such a time and p)ace,
* Insultum fecit, verberavit, et vulneravit,' be*
cause there is nut a place set to every word.
Mr. M&fnp€*wn. lodtetments ought to be
ret^ curiously penned, and what is good in an
action will not be good in an indictment, with
submission.
L. C. J. Trehy, But suppose you shewed
it for cause ujion special demur.
Mr. Jifompesstm. My lord, 1 cannot tell what
it would amount unto.
X. C. J. Vou <:annot quash the iodtctment
at this time ; that is not possible, because the
indictment is good as to the rL*st, snppo&bg this
was not so well as it might he-
Mr. Momptuon. Then, my lord, 1 am in
your lordship's judgment, whether they shall
be admitted to give evidence in this particular
thing?
Xr. C. J. They may certainly give in ewU
dence the agreement to have forty men to kill
llie king, as a proof of the consultation, agree*
ment, and couseot to kill the king ; and the
consenting to have forty horsemen is in evi-
ilenee of tneir treating, proposing, and consult-
ing to kill the king,* 1 ben for yourobjeclion
of * Uuilihet suaoeiiit* to be one; that is well
enough, it is all still hut one sentence.
Sir B. Shmver, One of which is it ? for they
have not laid in the indictment what in, whe-
tlier it be one of the four, or one ot ihc forty.
Z, C J. Whether it Imj one of the four, or
the forty, is not material ; for cannot one be
fduod giulty, and the rest ttC4|uiited ? The one
is not charged wi(h the act of the other, hut
they are several od'ences, ar^ each must an-
swer for himself. In all indictmem^, oflences
artj several. Suppose an indictment of con-
spiracy,and it i» laid in the indictment that four
did conspire ; csnuot you profe that two coo-
spired? no question you may. It is not cer*
tainly necessary that every one should be proved
lo hare conspired. Suppose it were alkged
that four did beat a man, and dues not say
* Unilihet eornm^ beat him, you may give in
evidence that one did beat liitii.
* See East's PleM of tlie Crown, c. % a, 57,
53. See» abo^ in tbjs CoHecslJon, Yot, 5^ ^. 911 .
§79] S WILLIAM HL
Sir B. Shower. No qaeitioD of thai in caso l
of a battery, but in the case of a conspiracj j
there must be more than one.
L C. J. Nay, I will ask you eren in an
action nf conspiracy, where the very gist of the
action is conspiring together, cannot two be
found guilty, and the rest acquitted ? In riots
there must be three or more. It may be you
wUI lay ten, but it is sufficient, I hope, if you
prove it upon anv three of them.
Att. Gen. The difference is betwixt con-
tracts and crimes ; for contracts they are joint,
but crimes thev are in their own nature several.
Sol. Gen, Besides, my lord, though they be
out of time, yet this is not to tlie abatement of
the indictment, but to the evidence ; how oo
they know but we will give it in evidence that
Christopher Knightley was one ?
L. C. J. Treby. Mr. Mompesson moves it as
a caveat against your ^ving it in evidence.
Sir B. Shower. If m an outlawry against
divers, they leave ont these words, * l4ec eorum
* aliquis comparuit,' that is every day held to
be nought, and for that reason we say, the
* Quili&t eorum suscepit' is necesmry too, and
without being laid cannot be given in evidence,
and if it be laid, it ought to have time and
place.
L. C. J. Treby. The default of appearance
must be a several thing, and when be lays it
jointly * non comparuerunt,' it may be true
that all did not appear, if any one made defaull ;
but when you charge men with a iact done,
though in the plural number, yet it is a distinct
separate charge upon every one.
CL ofAr, Robert Lowick, those men that
thou shalt hear called, and personally appear,
are to pass between our sovereign lord the kinj;
and you, upon trial of your life and death ; if
therefore you will challenge them, or any of
them, your time is to sneak to them us they
come to the book to he sworn, and before
they be sworn. — George Ford.
Lowick. I do not except a&rainst him.
C/. oJ'Ar, Hold the book to Mr. Ford.
Cryer. \jooV upon the prisumer. You kIiqII
well and truly try, and true deliverance make
between our sovereign lord the kint;, and the
prisoner at the bar, whom you shall have iu
charge, and a true verdict give according to
your evidence. 80 help you God.
CL ofAr. Thomas Trcuch. .
Lowick. I ha\e nothing to say against him.
(He was sworn.]
CLrfAr. John Wolfe.
Lowick. i do not except against him. [He
was sworn.]
CL ofAr. James Bodington.
Lowick. I challenge him.
CLofAr. John llaymoud.
Lowick. I say nothing against him. [He
was sworn.]
CL ofAr, George Haw cs.
Lowick. J do not except agaiust him. [He
w^ sworn.]
CL ofAr. Thomas Glover.
Lowick. I challenge him.
Trial of Robert Lowick^
[290
CI. ofAr. Blatthew Bateman.
Lowick. I do not except against him. [He
was sworn.]
CL ofAr. James Partherith.
Lowick. i challenge him.
CL of Ar. Joseph Blisset.
Lowick. I challenge him.
CL ofAr. Alexander Forth.
Lowick. I challenge him.
CLofAr. Francis Chapman.
Lowick. I challenge him.
CL ofAr. Nicholas Roberts.
Lojfick. I challenge him.
CL OfAr. Thomas Playsted.
Lowick. 1 ch&ilenge him.
. CLofAr. John Hall.
Lowick, I challenge him.
CL of Ar. W illiam Partridge.
Lowick. I challenge him.
CL of'Ar. Peter llevigne.
Lowick. 1 challenge him.
CL tfAr. Thomas Moody.
Lowick. I challenge him.
CL ofAr. Thomas Ramage.
Lowick. I do not except against bim. [He
was sworn.]
CLofAr. Edward Towneseod.
Lowick. 1 challenge him.
CL ofAr. William Gunson.
Lowick. 1 challenge him.
CL if Ar. John Wyliome. (He did not ap-
pear.)— William Strode.
Lowick, 1 challenge him.
CL ofAr, William Wild.
Ixtwick. f do not except against him. [Ue
was sworn.]
CLofAr. William Pitts.
Lowick. I do not except against him. [He
was suoru.]
CL if Ar, William Smith.
lA'u'ick. I do not except against him. [He
was sworn.] ^
CV. if Ar, Moses Cnok.
Ixrwick. I challenge him.
CL if Ar. Renjauiiu lioltby.
Ijowick. 1 do nolAXcept against him. [He
was sworn ]
CLifuir. Elias Ffctoher.
Loukk. I have notlif^g to say against bim.
[He w;js sworn.]
CLi^fAr. Cii<'r, countcz. George Ford.
Cryrr. One, ^cc.
CL ffAr. Elias liiettlier.
Crytr, Twelve j^'ood men and true, stand
tou;ellicr, aud hear y«Mirevi<lence.
L. C J. Now tlic rest of the jury that bav«-
j a})pL':ii*e(l are dischur;;;;eii.
I CLofAr. CruT, make proclamatiou.
I Crytr. Ovtz, If any one can inform my
lonls, the kiny's justices ot Over and Terminer,
the king's seinant, or ihe king's attorney-
geiu-ral, hefoir this inquest be taken, of the
hiiih Jioaou, 'hereof the prisoner at the bar
blamis in licte t, let thecn ccue forth, and they
shall b«^ iiea.il ; for now the prisoner stands at
the bar u|M)n his deliverance, and all others tint
are bound by recognizauce to give etidnce
fw High Treason.
m prisoner at the bar, let them come
I give their evidence, or else they for-
reco^izance.
mes of the tweWe sworo are these : —
Ford, Thomas Trench, John Wolfe,
rmoDd, Geo. Hawes, Matthew Bate-
lonas Rammage, William Wild, Wm.
n. South, BcDJaminBoItby, and Elias
Ar. Robert Lowick, hold up thy
hicb he did). You that are sworn,
Q the prisoner, and hearken to his
le stands indicted by the name of Ro-
ick, late of the parish of St Paul Co-
len, in the county of Middlesex, gen-
Ibr that he, together with Christopher
y, late of the same parish and county,
n; Ambrose Rookwood, late of tne
irish and county, gentleman; and
i^ranburne, late ot the same parish and
eoman, not harinff the fear of God in
rU nor weighing tne duty of their al-
but being moved and seduced by the
u of the devil, as false traitors against
; serene, most illustrious, most mild,
. excellent prince, our sovereign lord,
the Third, by the grace of Gpd, of
, Scotland, France and Ireland, king,
of the faith, &c. their supreme, true
tful, lawful, and undoubted lord, the
rve, and true and due obedienccr fide-
illegiance w hicb every subject of our
the king that now is, towards him
lord the king should and of right
bear, withdrawing, and utterly to ez-
, intentling and contriving, and with
strength, purposing, designing and
■^ the government of this kingdom of
I, under him our said lord the kmg that
oyr Tight, duly, happily, and very well
ed, altogether to subvert, change and
also the same our lord the king to death
1 destruction to put and brincf, and his
Nihjects, and the freemen of this king-
Bogland' into intolerable and most mi-
lls very to Lewis the French king to
te and' f'nthnil, the 10th da^ of Fe-
n the 7th year of the reign ot our said
a lonl the King that now is, and divers
ys and times, as well before as after, at
lb of St. Paul Covent-garden aforesaid,
xmnty aforesaid, falsely, maliciously,
k, and traitorously, did compass, ima-
I cootrive, parpose, design, intend, our
I the king tbat now is, to kill, slay, and
; and a miserable slaughter among the
subjects of our said lord the king,
lOirt this whole kio«;dom of England
! and cause ; and the same their most
impioat, and devilish treasons, and
m compassiogs, cuntnvances and pur-
iwtnid, to fulfil, perfect, and bring tu
(key the said Christopher Knightley,
liawick^ Ambrose Rookwood, ami
iCiaobame* and very many other false
It Ike jarOTsankiiown ; afterwasds, to
» aae lOdi daj of February, in the
A. D. 1696. [S8t
year abovesaid, at the parish aforesaid, in the
county aforesaid, and divers other days and
times! as well before as after, tliere and else*
where in the same county, falsely, maliciously,
advisedly, secretly, and traitorously, and with
force and arms, did meet together, propose,
treat, consult, consent, and agree, him our said
sovereign lord the king that now is, by lying
in wait and wild, to assassinate, kill aira mur-
der : and that execrable, horrid, and detestable
assassination and killing the sooner to execute
and perpetrate; afterwards, to wit, the same
day and year, and divers other days and times,
at the parish aforesaid, in. the county aforesaid,
traitorously did treat, propose, and consult, of
the ways, manner, and means, and the time
and place, where, uhen, how, and in what
manner, our said lord the king, so by lying in
wait, the more easily they miirht kill, and did
consent, as^ree, and assent, that forty horsemen,
or thereabouts ; of whom the saitl Christopher
Knightly, Roliert Lowick, Ambrofte Rook-
wood, and Charles Craiil»iirne, should be four ;
and every one of them traitorously took opon
himself to be one, with guns, muskets, and pis-
tols, loaden with gunpowder, and leaden bul-
lets, and with swords, rapiers, and other arms
armed, should lie in wait, and be in ambush,
the same our lord the king in his coach being,
when he should go abroad, to set u|M)n, and
that a certain auti competent number of those
men, so armed, should set upon the guards of
him our said lord the king then attending on
him, and being with him, and should tight with
them, and overcome thf m, m hilst others of the
same rnen so armed, him our said lord the king
to assassinate, kill, slay, and murder ; and they
the said Christoither Knightley, Robert Lo-
wick, Ambrose Rookwood, and' Charles Cran-
hurne, their treasons, and all their traitorous
intentions, desi^^ns, and contrivances aforesaid,
to execute, perpetrate, fulfil, and bring to ef-
fect, afterwards, to wit, the aforesaid ioth day
February, in the 7th year aforesaid, at the
parish aforesaid, in the county abi»vesaid, divert
norses, and very many arms, guns, pistols, ra-
piers, and swords, and other wea|)ons, ammu-
nition, and trarlike thint^s, and military instru-
ments, falsely, maliciously, secretly, and trai-
torously did obtain, buy, gather together, and
procure, ami did cause to be bought, obtained,
gathered together, and procured with that in-
tent them in and about the detestable, horrid,
and execrable assassination, killing, and murder
of our said lord the king that now is, att afore-
said, to use, employ, and bestow: and the
same premisses the more safely and certainly
to execute, do, and perpetrate, be the aforesaid
Christopher Knightley, with one Edward King,
late of high -treason, in contriving and con-
spiring the death of our said lonl the king
that now is, duly convicted and attainted, by
the consent and assent of divers of the traitors
and conspirators aforesaid, the. said lOfh dav
of February, in the 7th year abovesaid, trai-
torously did go, and come to the place pro-
posed, where such intended atsatsinatkini kill-
I
I
I
I
ins'i and murder of our bsuI lord ihe Icings, bjr
lyma: in wait^ sbouUl be done, pejpetnited and
committefi^ to t iew, &ee« and ooaefve ihe coq-
Yeoiency aad Blncfs« ai'ihe same place for Euch
lying in wait, assassination, and ktlling^, thcrt?
to be done, perpetrat^^ and conitniiteii ; and
tliat placet being m vieweU and oUnerfed, after-
ward b« to wit, the isatDc da^ and \ear, \m ob-
Starvations thereof tr> several of tiie »M traitors
and couKpiratont did relate and impart, to wit,
al ilie [»arish aforepaid, in the county afnre-
«aid ; and the aforesaid Charle« Cranburne the
came day and year there in order, tba isame
execrable, horrid, and detestable asaa&iiuatmn
fuitt kilKnf^ of our sairi lord tlie king-, by
the traitors and conspirators aforesaid, the
more readdy and hohWy to execute, perpetrat**,
a.nd conuDit, advistjdly, knowing^ly, and traitor-
ousJy did bear and cflny among divers of thuse
traitors and conspiratorci forwards and back-
wardi»| from some Co otbem of them, a list of
the naroeji of divers men of those who were de-
signed and appointed our said Inrd the king, so
ftft aforesaid, by lying in wait, to kill and
nunnrler> aptinst ihc duty of the allegiaiii'e nf
ihein the »aid ChiTstopber Koigbttey, Robert
Loi^ick, Anibruse [tuakwood, and Ci»nrles
CrAohurne ; and against the peace of our fiaid
uovcrcigu iord the kin^ thut now ts, bis crown
and Oignity« iis ii\m against the form of the
statute ill Hiicb case made and pruvided. Upon
this indict ineui hi; has been arraigned ^ and
tbereuiitij balli pleaded Not fiuilty, and for
Ilia triai lintb put bituself npc^n Gird and the
country I which country you are ; your charge
is to inqtiire, Mbeiher he be guilty ot the
high-trcn«on whereof he stands indicted, or not
guilt)' : if yon find him tcuiliVi you are to en-
quirt* what goo<la or chatty b, Undi4 or tene-
uientij, he had iit the time uf the high tvea^on i
committed, or at any time sinc^, to your know- '
ledjuft ifyou find iiint not guilty^ you are to I
enquire whether he fled li>r it ; '»f you fmd he |
fled for it, ^ou areta in if n ire of hi^ good<und
chatteb, as if yon bad lound him guilty : if yuu i
find him not guilty, and thai he did not Hy lor
it» yuu are to say ao, and no more: aud'hear
your evidciice.
Mr MoHtUoguc, May It please your lord*
ftbip, and yuu geut)ein«o of the jury ; this is
an indictment of h»;;b treason a^iunst Itofiert
IfOwick, jirisoner at the bar ; and ihe Indict- '
Dient does charge him with oompaf-^og and
imaghiiog ihetieulh of thf% king, and eodea-
vouruig to subvert the government, and iot>lave
this kingdom of EogUnd, ami brin^ it under
French lyriinny and ulavery j and toe Indict-
ment seia forth that Roliert .Lowiok, the pri-
soner at th« bar, tb« lt>ih of February, met
several f<tlae traitor>i| and tht*re consnlled and
treated how to assagai oate his Majesty i and
agreed, that forty horsemen do get together,
some to utt3i4 the fjfuards, while others were I
to a.ssassinute the king iu his coach ; anti the I
Indictment charges him likewise with getting
tog«;ther horses and amis for this pQrp4lc« ; to
tkia be bath plesuled Not Guilty. We wtU call
our evidence, and pruve the lact ^;i
and we do not doubt but you will db yc
Att. Gen, May it please ytiur lotdsliip, ]
you gentletnen that are sworn, this is a»
dictmeut of high treason, in
compassing tine death and deslruclioa ^
king ; the nature of our evidence m^k
prifioner at the bar is this.
Ymi will hear, gentlemen, by the wi(
that about Christmas last a cou^spiracy i
aiga was set oa foot to«9*ati&maie tb
aod accordingly to accomplish it, th€
several persons sent orer from Franc^l
late kiu^ Jauies, who were purt of hiii gua
and particularly sir George tiarcley w^a toi
thehe»d of them ; he was a lieutenant of
guarils ttierc, uod he was sent over in i|
Ust, and there were a great maoy tri
over, who were to be under hi^ directio
ticutarly Mr. linrriB, who will give you ^
count, that he was sent over by ortler of J
James, und he waK tntd particularly kin|^J~
had a sfrvice far him to do in England,|^
hoped it might be an opportunity to t
liHu. He was to observe tlie orders i
Gcwge U a re ley, and by wl*at lokeu be i
know hiai \ be was to meet him in
garden, and he was told he might find I
there Awict^ a- week in the square, akmt
o'clock^ alter it was dark; and th^a he roij
knnw him, he told him, he would hats
»hit^ huodkercbief hanging out of hi« p(
accordinj^ly Mr. Harris came over, and
Hare came with bmi, and they catne j
meet wjth sir George Barcley ; and ('
getber with sir George Barcley, and
others here in England, Mr. Porter, Mr.
nock, and sir VVilliam Perkins, did enter i
consultation how to etfect it : Thert- were t
ral meotn>k:*i about it, and you Mill find the j
soner at ihv bar was at several meetiiigsj
purpo«)e : ,'ind tbey thd undertake a'inoit&
to proviffe &o miiny men a* mi>>ht m:«ke!
ttie number of forty, which they thoui^nt sui
cient frirtlie execution of this dt^^ign.
Gentlemen, you wdl hear th»t the
at the b;ir did trent with several person
engaged in it ; particularly about the i
February! he Rent tc» one Bertram, 3
him if he would be engaged iti a de
king James *b service^ that woi quicklj^
executed, without asking of que^^ions |
terwardii, I (hi&k, he undertook be weil
about the Uth of February Ue
again, and tliat was the day bei«ire
lime they intended to attack the kiu|p^"
then being so near the Uoie when it w»
be executed, he thought it 'firoper t<i
qii«kint him with tite thiug be btid eogagtd 1
in ; and l>e ditl acquaint him, that the i
inort]ing tbey uere to be ready to attack (
king and bi^ guards, and bid him be sure ^
get bis bofits and other ihrnj^ ready for T
purpove, aikd ho gave him a guinea in <
it Bertram, it iieems, ou the 15th of Fe
did not cotue, and the king it seems did |
abroad that day, so t^j were disapp
L mcttr
lltf tioie ; btit the 8iiad«y afler Bettraiti met
tef an^ IBr. iiowtek eomplfttiied that he hud
or upen the Sblur^j accordinjgr as he
idertalceo ^ ^ttA he lifhl him it woiild have
anilte ihin^, he would Imve disap*
I lliem if the kint;^ had been in the field.
.... , y(»u shitll 6iid, that as he thus
Mr. Bertrani, so he was to (irovide
others ; and did declare, that at his
0m rharjre be liad jjoi two or three ; he com-
of it as a hmrdship put upon him, thai
l^tr. Harris had 6j. a- day sufatistence,
md »*» only to take care of himself, he, Mr.
iMPick, had at his own charges engaged and
ITPYulet) serenl.
Yoa viU fiod» gentlemen, that ^Ir, Rook*
wiiod^ who was tried yesterday, had seversl
Oicttrti^ about it with Mr. Lowick and Mr.
Iltrris ; tbev did think it to be a barbarous
tint ha w ever, they were reaolveil in
id the {trjsoner in particulsip snid
V orders, thouj^h he lb ought it a
wvwickefi tiling,
(SciHlemer}, yoii will 6nd by the evtdeDce
Wthe matter was earned on ; the prisoner
«ti 10 be engaged id it, and did not only em-
l«rk Kinu^lf in (lerson, but engagjed others, and
id trot with theiD about it. We 8hall cat!
fvr witiiessei, who will ^ve you a fiilJ accoimt
if il, aod then we shalt leave it wiih you,
vbv we question not will do jusliee. First
eyi GtfOfgis Harrfii* [Who appeared, and was
SfL wn. Pray will you g^ive an account to
ijlord siui the jury, whnt you know of the
iMiDiM aansMoalion, and what part the pd-
i^v At (ht^^ har had in it?
n Begin from the first, and tell
mr 1 J wlediye as y o u d i d y e^terday .
Hirrt^. On the t4th ol January, new itile,
I vwtfrdered to wait on ktngf Jatnea at din-
orrj alter dinner waa over, I was called io,
wfiere waa col. Parker and Mr. Hare at the
ttone lime, and king^ James totd tne be was
tCTj sensible of the g^od ser%nce 1 had done
I ; lod now he had an opportuoity fif doing-
hiog' for me : \ was to go into En gland,
'■ to be subsisted, and I was to tbtlnw
of sir f Jeorge liarrley ; the king
should find air George Barcley iii
^€ovait»gArden« with a wbite handkerchief
"* ' g- out of his pocket, on Moudays and
ay« between the hours of six and seven
evening-^ and that was the sif^n I was to
him by ; and he ordered me to jjo to Mr.
Uiat IB secretary to the late <iueen, and
j-ker went along with me, and he or-
rtealewidores, and Mr, Hare as much,
\ Mr. Caroll srave us ; and if that were
ifficient, or if we were wind -bound at
ii, we had orders to a^jply to the president
if Calais to im fumi&ht^d with what we wanted ;
Mordingly we went, and the wind not serv-
tttf wbrn we came to Calais, we were forced
lAitay there, and our charges were paid to our
IttMUady by the president of Calais, according
1l»tfaftoid«r we receired at St. Garmaios ; when
the wind Rerveil fair we went on hoard, and
oame to Rumney-marsh, to one Mr. Hunt'a
bouse, and Irom ihetice be tumished us with a
eoujdc of hones; and we Game the sandy way
to one Mr. Tucker*s« and from thence to Mr,
Cross's, and from thence to Gravesend^ atid
from thence to London t we came up in tbt
night- tide, and being late when we came is
town, Sunday night, we lay at an inn at the
lower end of Gracechurch-street ; the nejcl day
we went to look for sir George Barcley, but
not finding' him in Co vent-garden, according
to what king Jamea told us, I admired at it ;
but one Mr. Berkenhead meeting my comrade
ih? next day, said, sir George mrcley desired
to see us, and appointed ui to meet him, which
wc did that uight; where sir George Barcley
a^ked us how the king and queen, prince and
princess did ; he told us at that time he had no
money for us, but in a few days we should
have mone^; ^^^^ accordingly he sent uh
money. We bad five guineas, but it was at
twice r two guineas at one time, and three at
another, and this was for a month^s subsistence
at fire shillings a -day, guineas going tben at
thirty shillings. And afterwards when major
Holmes delivered «he horse, upon Saturday the
16th, we had another guinea, thai made up
what we had to be six shillings a<day when
we had horses, and five shillings a day when
we hud none: and as tor Mr. Lowick, the Qml
^ turd ay which was designed for the assassi-
nation, 1 happened to he at Mr. Counter*s
lodgtn^^s in Holbouru, a confectioner^s ; and
there 1 see Mr. Lowick come in.
IHr. Corny ert. Who l9dged there, pray^
Sir?
Harrin. Sir George Barcley and Mr. Coun-
ter had lo-ilgingfs there ^ and Mi*. Li>i« ick came
in there, but 1 cannot ny be staid there any
time, I lliink he went out presently at W wards,
The next week I met Mi . f .owick in Red-Uon-
fields, and discoursed with him there about
this matter, and 1 told him what a harbarotis
and inhuman thiuKf it was that we should be
the murderers of the prince of Orange, and
that it would render us odious to the world,
and that we should be a continual reproach to
oursehtfs ; he did agfree it was so: but in con*
elusion, Mr, Lowick said he would obey orders,
and he saiil sir Oe^irgc Barcleyi he was sure,
would not do it without ordci-s. That day
when we were walking out, we met sir Geoi^
Barcley aud major Holmcii riding in the high-
way up toivardii Islington ^ and we spoke Ut
him, f»r Mr. Lowick told me the thing was
dim^overed, and bis name was given up, and
other genllemen^s, and J think another; and
BO he tokl me that one Harrison told him i>f it,
and forewarned him that night from hiog lo
his lodging ', and he tdd him that he believed
it would uol be safe for tlit: rest tu lie in their
lodgings, CM- to tl^t <i:£^ect.
Aft. Gen, When he said be would obey
orders, what was the discourse about?
Harrii, We were talking of murdering the
prittce of Orange : and not only that, but I da
»73
8 WILLIAM m.
Trial qf Robert Lamei,
[888
belieTe that Mr. Lowid^ is so sensible that what
I say is true, and he is a raan of so mnch oon-
■cience and honour, that be will not ooAtradict
any thingr that I affirro or ha? e said here. On
Saturday the SSnd we dined at the Castle, a
tavern or a cook's shop, at the end of Red-lion
fltreet. I was much in a sweat, and he asked
me what made noe so ? I told hini 1 bad been
fttinff captain Rookwood's party ready ; and
told him (laughing) that captain Rookwood
said I should be bis aid du camp, and so I was
getting the nteu together : savs be to roe. You
may very well do it, for you have six sbilliDgs
a-day, and I have nothing. Mr. Lowick, you
know what I say to be true ; I know not why
yon lift up your hands ; but you did tell me 1
might very well do it, having six shillings a-
day, and you bad nothing, and yet brought a
couple of men at your own charge, and that
their horses could not be discharg^ unless you
went. Thes(^ were his words, my lord, or to
this effect.
Att. Gen. What do you mean by being dis-
diarged?
Harris, 1 mean this, that I believe lie paid
for them ; and they were waiting at a house
till he came.
Mr. Conyert. Why were they to be dis-
charged that day ?
Harrii. The reason why they were to be
discharged that day, was, because captain
Rookwoo«l had told biro before, that the prince
of Orange did not $ro out that day ; and tben^
fore we went together to walk towards Isling-
ton.
£. C. J. What day was that?
Harris, Tlie second Saturday that it was to
have been executed.- I was not a spy upon
any matins actions : J cannot tell what they did
any more than 1 tell you : I do not wrong
yjo'u any way in the world, Sir, I am sure
on it.
L. C. J. When was it that you spoke with
Mr. liowick about murdering the king ?
Harris, It was Monday, Tuesday, Wednes-
day, or Thursday, 1 cannot be exact to the
day, but it was one of these days, after the.
first Saturday ; 1 cannot be positive what the
day was.
L. C. J. Well, it was between i\\e> two
days ? — Harris. Yrs, it wa.s.
L. C, J. How did you know of that design
of murdering the kinjSf '.'
Harris. 1 was informed of it by captain
Hookwood the lirst Saturday, and I met Mr.
Lowick, and bad this discourse about it : and
afterwards they infiMined me that Mr. De la
Rue did not lie at his lodirinirs, and the thin;;:
was discovered, and they believed that Rue
had discovennl it : And 1 desire you will call
Mr. De la Rue as to this matter; for 1 believe
be will own it.
Sol. Gen. How came you to trust him with
such u discourse ?
Harris. Because we met there at Counter's
lodgings, and we had several times discourses
of it 'y there was miyor Bernard and capt.
3
Rookwood besides, and I always declared
against it as a barbarous and inhuman thing,
not to be answered before God or man, and
that we should be odious to all the world if the
tiling were eiiectiid, as I believed it would not
be. 1 would never shew my head af^ such a •
thing.
SoL Gen, Do you remember who began the
discourse of this matter ?
Harris. I cannot tell that. I cannot come
to eveiT particular.
Sir JB. Shower. You said just now, you appre-
hended Mr. Lowick to be a man of conscieoce
and honour ; pray what were his sentimeoti
about it ?
Harris. His sentiment was, that he would
obey sir George Barcley's orders ; and he wai
sure sir George Barcley would not do it wiUi-
out orders.
Sir B. Shower. Did not he declare it to be i
barbarous desigpa f
Harris. I cannot remember every particohr
thing that he said ; for I am not a spy upon
any man's actions.
Loaick. When you were talking of that de-
sign that you s|)eak of, pray, did I consent to
aoY such thing?
Harris. I tell you how far you consented ;
you said you would obey sir Creorge Barcley's
orders, and you was sure he would not du it
without orders.
Mr. Mompcsion. Diil you see any of sir
George Barclay's orders ?
Harris. No, 1 did not, I was to follow hii
orders ; but what orders he had 1 cannot tell.
Sol. Gen. What did sir George Barclay tell
you you were to do ?
Harris. Sir George Barclay declared, oa
the first Saturday, that we were his Janizaries,
and talked of attackimr and bringing awny the
garter: I cannot say this gentleman nas by
tlien ; and afterwards sir George Ban*]ay went
out and returned, and came in again intn
the room, and tieolarcd that we were nienut'
honour, and that we were to attack the prince
of Orange.
Mr. Alompeasoii, Did sir George Barcley
give the prisonii* at the bar any orders ?
j Harris. 1 do not tell you he did.
Mr. Mo?npcssy,n. You'say you met sir Georpe
\ Barcley and major Holmes upon the road
going to Islington : How do you know the
1 prisoner was there ?
Harris. Why, was not I with him ? I am
very sorry to conie upon tliis account ; bat
; you ki»ow it is trutli all that 1 saj' ; and L
. am sure you aie sensible 1 do you no wrong :
• He met sir George Barcley ajid major Holmes,
, and be went down and .said something to sir
, George Barcley iu the hiifbway, what it was I
j do not know ; hut 1 stood, aud captain Rook-
• wood and Mr. Bernard said something to him,
■ which you very well know.
I Att.'Gen. \Vhat was it ?
' Harris, 1 cannot tell, Sir.
I Att. Gen. We do not desire you to tell who!
I you canuot tell : Is this all you know ?
^
Jor High Treaiwi*
BmrrU^ It is ftit «! (irrsent th&t I lecoltect.
Sd, Gtn, TlicM pm^ sureur Mr. Bertram.
[Wliicb was done.
Mr. Confers, Piny will yoo (five an account
t»uiy turd and ihe jury what you koow of ibis
intrtiLic<t u^san^tDation, and bow tliV tbcf pri-
smiiT wjii» concerned in it«
hrrtram. ^\y lord, iibout the be^nnini; of
FcLrnmry liLsl, mujor Lowjckeaiiie to tue, and
AikiMj mt* if I Wiiutd c?3sp<Hii.ti a tbin^ with huu
ikit inr^fhi Ix: tor tny advantage; I iold hirn
thti 1 thoui^Kl J mig^ht espouse any ihiiig that
lM}llioiit:^hi fil loengMife in.
Mr Mompessan. Wiiom did yfvu tell so P
E^itam, Major I jo wick: and he tolij me
k iffS£ welL and desired ine lo ask nci inure
; 1 did not ; btii it hl^ik tm to the I4th
aary» niiiu he desired luc to Iw at tin
At IS o'clock. 1 wus so iib'iut tbtit
Ke was »ol within* and I ^ta\ ed till
lit, and he took nw up into his chum-
told me he 6thv'v#'d tliey should ride
•ottie hi lie time ; and he told me lie he-
the k*n;^ w*uj to b*? seized in his coach «
g-ave we a jt^uiiiea to buy me necessaries*
X. C. J. W hat nef.-esaanes ?
Bertram. I cannot say he named any*
JH. (Jen. But for what purpose were those
liecesaaries ?
Bertram, I do not know tliat he named any
tiuo^f milr^cd.
Ati. Oen. Well ; did he letl you when yoti
mtrt to be ready ?
Bertram. It you please to give me leave, I
will tell you : lie de«ired me not to be out of
tke way ; and the next mornint,' 1 was to meet
ktm at ilie purl house iu Hart street. 1 did
Ml meet biui ; ami the next time J saw him,
1 am not positive whether it was the ne\t day
the fiflc^entli when 1 was to meet hint iit
reet, but did not 8o ; but the next time
bim, be asked me why 1 did not meet
cordtii;^ to Ins appointment ^ 1 told him,
some reason fibril; aiid he noNwered iiie
p^Q^ that be iMitieved^ it' tlie king had been
n tbe field, I would have done the same ; but
1 have not aeen biin^ sinee, till 1 saw him at
tiiebar.
O^'ii. Had you no discourse of horses
were to pr>vide ?
Ttram. 1 do not remember any particular
thiik^ more than 1 have toUi you.
< Au. Gen. Did be not tell you what the de*
-1^ wa^ you were to go about ?
Bertram, lie did not tell me of any other
^angolhan as ! tell you, tor he believed I knew
•fit; I thought so at least: The tirsi time I
loew of ii wttN fmni IVlr. Cliaruock,
C, X What did he tell you ivas the de*
at you iiliould engage lu for your advau-
Upon Friday the 14th, wheu he guve yoii
({uioea f
&riritm. He told me, he believed they
ilMHild nde out very suddenly, and that the
■^ WM to be seiseed in bis coach.
L, C. J, Hid he tell you ivben the kiuj; wa«
»ob< seized?
VOL, XiiL
A. D. 1696.
[S
the I
k vo]
Bertram. No, be did not tell me >vheti } but
this was the 14th, the next tuOrnin^ 1 waa to
inef't him at Hart- street, but did iiot.
Sot. Gtn, Who did he tetl you^tht; Wmg wnt
to be steiz^d by !
- Bertram. Uc did not nominate atiy otic else, ,
for he t^bli^ed me not to ask him questions, nor
1 did oot.
Sol. Gen. Did be nami himBelf to be con-
cern ei I ?
Bertram. He named himself so far as thai
he believe*! he should ride out very suddenly.
S^L Gett. Was it tlie tiitxi iDOi-Ditig, w the
next day P
BertratN, I caDQOt say that he Ditmed anj^
I i^uriicularlime.
i All. Gen, Will they ask him &ny (jiies-
lioiis?
Sir U. Shower. No, I think we shall not.
Mr, MiiUHtaguc. Pray, >Ir. Bertram, will
you answer me one quoHtion, UMiat did he sav
to you when be checked you lor not comin^f
aecordinvf to his appointu;ent?
h*rtram. I took it as a kind of a check : he
told ine, that if thp kmg had been in the fields
be believed I would have done ihe same.
SSir B. Shower. There is one thing we must
a little ejcamine this gpnileii>ait to : were tvot
you under a necessity before that tiu»e tliut he
g;ave you the gfuinea ? Pray wljat conditiou
were you in ?
Bertram, Under necessity. Sir I I was never
very plentiful of moirey of laie.
Sir B. S/ttmer. Did he never give you m
guinea or two l^efore iu charity, and out of
I Lomim-ssion to your necessities?
Bertram. lie has i^veu tfle money several
I times befere : and I believe if I uottld haie
I asked bijn for any money ^ he would have
I giveu it me,
Jtt. Gen. IV as this money given you for
charily, or for any other, and vv hat pur[H>se f
I Bertrar/h 1 did nut ask liim for uay thing ;
but he gnve it me, uud said, tiierc is a y:uitiea ta
buy yon ueces«iiries.
I Att. Gen. What was the discourse before
] that ?
I Bertram. I told you, he said, he believ«d
they were to riile out f ery sjiiddeuiy, and he
believed ihe kioi;^ wtim to be seized in hiscoach^
> and he tlesired me not to He out of the way*
I Mr. Coil per. And A%hen h« gave you the
' guinea to buy yt^u necessaries, was it Jiumo-
I diaiely after ihh dis^coui'Se /
I Bertram. Sir, it was at the same time.
! iMuick. Did not I give your wife a guioeft
two months helor^ this?
Bert rum. Ves, fciir; 1 acknowledge I was
iutunned you did, 1 was not ni town theo,
Lou.'ick\ Vmy let the court koow that.
L. C X Did be tell you the king was to b«
seized in his coach, beibre he told you they
were to ride out very suddenly ?
Bertruta. No, afterwards; and then he gave
me the guinea,
Sir B:6hoaer. His words are not coupled
together, thf) h&\« v}^ t^\ij)\^ Vi ^\^^juqN^t%
U
I
I
I
I
29 1 J S WILLIAM lU.
X. C. X K© ; but he lold biiti tliey wer« to
ridc! out very ?iiiclileulyi anil Ihe king was to be
seized in his coach, and gpafe him a guinea to
buy him neeessaries nt the same litue.
1j. C. J. Trebj/. There is no doubt he w«s
engHged in ihe design v^ilb ihi>»e other pei^onu.
Mi% C^nyers Aod altenvartb h<? itbuked
him because ht- had not met htin ; nud he^nid,
it vt ould have been the same thing \i ihe kiiig^
bad liecii in the iiehL
Mr. Mount ague. What day in the week
was it that you faited him ?
Bertram, It w^a on a Saturday.
Juryman. Pray, my hird, we desire to
know, \vho he did utide'rsttind by the kin^ that
was to he seized, i
L, C. /. What did he call ibi* kin^ ?
Bertram, He said uothini^ Uui the king.
/.. C.J. Wbi did you understand by that ?
Bertram. I leave it to the court, I urn not to
interpret ifiini^s.
L. C. J. Trtby, Did he name the jirince of
Orange, or kiniJantes? Did you think ktn|i^
Jnmes was to \w. sclzeil F
Bertram, My lord, 1 tell yon w\\9X be said»
1 am not to interpret his words <
Att. Gen, Do yoa believe be meant kiu^
Jamefi, or thii kin^, that wa^ to he seized P
Bertratn, 1 believe it mi^t be the kittg^
bere,
i. C. /. Take the words as tboy tre; be
ftfked him hetbre, Whether be would enijage
in ade>ipiihHt niifjbt be fW his advantn^je?
On Friday the 1 itb of February he metis him
at bifi lodging, and tells bmi, be was to ride nut
suddenly, and that tbe king^ was to be feizid m
bis coach* and «ppftinted him to meet bini the
next morning, and gAve him a guinea to buy
him necessaries.
Mr. Mowpetjion, Viiiy\ \iii% not Mr. Lowick
given you clothes, linen and other things at any
other time f
Bertram. 8ir, you hare been always ready
to serve me, I must acknowledge, and you
have been very kiud to me*
Lmkk. i\ you please to jsrive an account of
my character^ whether ever 1 was guilty of any
bloody thing ?^-- Bertram. No, Sir*
Hir B* Shou'er, How long have yon known
Mr. Lowick f
Bertram. I believe 1 have kn«wn him tbj«
SO years.
&T B. Shjimfr. Wbat behaviour has be been
of?
Bertram, He has always had very good be-
haviuur, and the best; he bas had tbe best
character id' all maokind.
fi'ir B. Sh&rrer, Did yon ever know him in -
cliood to do a rash action ?
Bertram, Never in my lift.
Sir B. Shtmer, Did yon ever kni»w him do a
m&ficiouB action ?
Bertram. No; but be had alwaya the eba*
raeter of a frood man, and was ali*nys rpady to
StTve Rny man in his neerssitres, and to do
^pood ; he has that general character abrond.
X, V, J. Where do*»s be live f
Trial of Robert Londclt^
[29f
Bertram, He lived last at Brownlow-street,
but be bas no wife nor family, and so baa di»
fixed being,
L, C J, What was bis way of living?
Bertram. He was bi^ a soldier, and bft^
been abroad.
L C. J. Where?— ^frtroJM. In Ireland.
L, C.J. In wbo«e service ?
Brrtram, In the service of king James.
Limick, He knows particularly, that oore I
was n|xvn a party* and savwl tive officers from
being killed in cold blood.
L. C. J, W bat countryman is be? i
Bertram. Yorkshire.
Mr. Motnpeixon. Wat be aecounied of m
cruel or a bloody nature ?
Bertram. No; of n quite contrary.
Jurtfttmn, 2^1 y lovil ; I de«ire to know for
wlmi cause be gave hiui or his wife a gnineft.
Bertram, I know not what that guinea wa0
for that be gave me ihe 14tb ot February^ any
oihervuse than as I have told you.
Mr. MumpeHon. What wus the guinea gt'
to your wite for ?
Bertram. For tlial guinea given in my wife,
it was out of hiii own kindness and goodness u^
my raiiiily and me.
'Ait. it en. What wii« the other guinea fbrf
You are u|ion your oatb,
Bertram, Indeetl, 8ir, I cannot tcU ; be
it me to buy me uecettaarit-s.
yttt. Gen, Was there uotbing ebe
tioneil, what nece&iiaries those were to bo!
Balram, No, Sir ; upon my oath there
not any particuUr memioned*
Att. Oen, What made bim so kind to yi
pray ?
tier t mm. We were both born in a tovrn,
I believe we are near relatetl.
Sir B. Shimrr^ You say yott are
ppo|i1ef nnd have l>een long acquainted,
knew him in irelatid; prav, did yott
know thai he saved any oeople's lives ?
Bcriram. I was not in thut activn myscU
hot ntl that weir in it gave that relation^ tliat *
was very fav on ruble, and dtd wive |^ople'
lives, parlicTiilarly one ca|ituin Hartow,
brouij^bt liiui and other prinooers, and I
member the thing : it was about a fortnigl
before the buiines** of the Boyne, upon
day morning, that they tnok those prisonfn^
and be did persuade sevenil ftarties tb:)t I
commanded, to decline kiklin'4 as inucb i
they couhl : J was not in this actimi, but this
heard ol all that were in it, and from tbe pri«
aoner.
^>/, Gen. When be gave you that guii
did not be speak any thing ot a hofse that wi
to be provided for you ?
Bertram. Not a word ; i never did see
horse upon that account, nor was I master
a horse, nor w&s \ luld I should hare a burse
any respect wliotsoever,
Jttriffltan. How could you ri«le out, a?
say they were to do, without a hoi^e, or will
ont kdoWiut^ any tbing of a borec to be pro*
vidcd for you ?
*
1
Bertrmn. I dW not know of a bursf.
L. C X Bnt be said you were lo ride out
Bertram, No : he saidiQ geoem), we should
lide out suddenly.
^If. (xtfti, VVtio was til ere besides yourself?
Btriram, Nobody*
Aii, Gen. Tbcn that ' we' must mean you and
litm. And how were you to riile out \i ithoul
« borse f Fray inind whol you swear.
Bertram, I wm lo meet biiii the uejsft moro-
iBg, but did not.
Mi* Gin. Pr»y, wbat could you iiiider»tand
tribal, that vou were to ride out suddenly,
iiid bad no horse ?
Bertram* Thai was understood, Lbat if I (lid
ndie out, 1 must hate a horse.
Mi* Gen. Who should you have it from ?
Had you a horse of your own ?
Bertram, No, I bad not.
Mi* Oen, Did yoo iutend to hire a faorae ?
Betiram, No, I did not.
4il. Gen, Did not you ask where you were
Ulnrtii horse?
BtHmm^ No, I did not ask nor Inquire, nor
iliit|irOiiiif>edme I khoutd have a horse.
Sit Gen* Did be lell you where you were
Iftridef
Biriritm, The next morning' I was to meet
Mt. Gen, For what ? To ride out was it ?
Berlram, 1 cannot rt-ally tell whether it was
iipiQ that account or not.
Att^Gen. Whether did he tell you where
W waa to ride f — Btrtram. Indeed, he did not,
Jmryman. It is very straoj^e thiit you <Md
iOtiik him where be was to ^, nor ask him
for % borse.
Btrtram. I was so senseless, thiit I neither
lid tak him about a horse, nor ever knew of
■ntbai was to be provided for nie.
Jarymfifi, Did you understand what was
Ooikt by the riding out suildenl^ ?
Bertram. I did take it tu be about the husi-
MK, the seiziDg of the kin^.
Juryfftonr Did he compare it to attacking
him ia the tieUJ ?
Bertram. No, he did ,not ; hut he said^ he
Wliered the king would be ficized in his coach ;
be made no C4»mparii3ons.
Mr, Mttunttigue. Pray, Mr. Bertram, why
did you not meet hiiu ? What reasons had you
for Dot doiu^ it T
Bertram. I thouglit it not reriuisite to meet
lufln.
Ilr. Mountague, What ! had you do mind
t0 tbe thiugf
Bertram* No, I had not ; because t thouglit
the t bio jf very unlawful.
Att. Geti. Pray what was that thing" you
Ipeakof, tbatjouthouurht wasunluMfylf
Bertram. I thought it was about seizing and
Hlliotf the king.
L. C. /. I'ray, mind ; there is nohody de-
Brca you shimfd Kjicak more than the trulh;
W on the other side, being upon your oath,
joa ire to speak the whole truth ] for if you
t
conceal any partof the truth, though you have
A kind ti ess U r y ciu r co u nt ry man , Mr. Lu ^\ i ck,
who has beeu kind to you, you will forswear
yourself, tor you ntakc adilferentveprf^*iitattafi
of the uiaticr, and make it appear t^uite other-
wise then it is ; pray do not strain one tittle,
hut let us have all the truth.
Bertram. 1 do nut hrlieve I strain one bit.
Mr. Moufiiuguc. TheuteUmy liird why yoQ
did not meet hiai ?
Btrtram, I did believe It was about sei^in^
and kilhng the king, and I did think it to be
illeu'al.
Mr. Mountague. Why did you think it was
ahout that ?
ihrirum. Because Mr, Charnock had told
me of it before.
Att. Gen. How did you know that was
what Lowick suiike to yoit about ?
Bertram. 1 did suppuse it to he the same,
because he desired me at first to ask no ques-
tions, no more did 1 ; but I look it always to
be the same thin^.
AtL Gen. What did he say to yoo ?
Bertram. He told me he had a business to
propose to me, if I would cu^ag^e in, that
would l»e for my "advania^e, but I iiivist ask no
oua'^tious ; talked of riding out suddenly, and
that the king was to he seized in his coach:
and having heard of ii from Charnock, J
thought it was the same husiot^s^.
Att. Gen. Then, my lord, we have one wit-
ness more. Call capl. PiKher. [He did not
ap(»ear.] If he does not appear, we shall lei
them go on J and ivheu he comes m, we cau
ex ami lie him afterwards,
L. C.J* Is he a lu uteri ul wiliiess ?
Sat. Gen. We do apprehend he is a very
material witness.
L* C* J. If you thiuk hi in a material wit*
tiess, it will not be propter for iheui to enter
ujmn their dett'nce, till they have h«iird th«
whole aecu^tion.
The Court staid for Mr. FisherS coming for
near an hour, and at last he came in and was
sworn.
L. C. J. Who is Ibis ?
Alt. Gen* This is ooecaptnln Fisher.
SoL Gen* Pray» catilam Pi*^]itrr, do you
know Mr. Lowick, tlie inisoncr ut the bar?
Fiihcr. 1 have not lalkt^d vviJj Mr. Lowick
since the 8th of Februuty, and then he talked
that he would be rearly to :3crve his master to
the uttermost of his power.
Ait. Gat. What master.^
FUher. King James.
Att. Gen. VVhai particular aerfice? ^
Fuller. Henameu uo particular service, bat
ouly that he would be ready lo serve hts mas-
ter to the uttermost of his puwcr.
Att. Gen. Where vvas this T
Fiihcr, At the Cock in Bow street.
Att. Gen. Who wasiu company f
Fisher. There was Mr. Harrison,
Att* Gen. Fray, give au account of what
you kaow Qf ituf barbaroui, bloody d«si|^a*
I
295J S WILLIAM IIL
F'uher, I h^Iifirc ibere waa a design to seize
the prince of Orange.
Au. Gen, Wlial do you know of tt? You
•ay you Iw^lieve it,
FUher, I believe it by my kiiowte<lge, be-
cause I w«s concerned in it.
At(. Gen. By wboin was lb at design ear^
rjtid on ?
Fiihcr. By sir George Barcley and Mr.
Harrison.
L. C. J. T\'bat ^a5 \\ie desig-n ?
Fisher. We were to tall iijioo the prince of
Orange,
L. C, J. Von called liim so, lUe prince of
Oraiige? — Fisher. Yes, my lord,
Att. Gen. Well^ u*!l us whni bappened.
Fhher. Jt WHS to have l>€en dono the irith
of Febnmrv, and we mei accord ing:ly the
14th, but tlie king nut g^ing abroad, it was
pwt off.
Z. C. X IVho met on the 14th ?
Fiihrr. I met only .Mr, Harrison and sir
George Barcley, then it was put oft' till the
i2nd; iiiH>ii ihe Slvl, we met at tbe Thrfu-
TitiiB in nolboro, and from tbencewe came to
the SSim-tiifern m iho Stmoil, and tbcre was
nnlnidy but Mr. Hurrison and 1 tojjelher, and
sir George Bnrcley c«me to us; I believe tbere
were about 14 or 16 in the house ; there sir
George Barcley tobl me, iVlr. Lowick was to
meet me and two more at an inn by St. GiUs't
Poimd, and that we were to go together to
fieize tlie prince <d' Orange tbe 92ud.
L, C. J, Did }'on meet bim ?
FUher. I did not meet him, it beings put off
by tbe king's not ^oing abroad.
L, C. J, This does not afl'ect Mr. Lowick
at alL
Att. Gm. It does not, we acknoxrledfre ♦
but at that time which you apeak ol, the 8lh of
February, had you any knowlcdg'e uf the as-
sassi nation ?
Fisher, There waf» no nssassination at that
time, at least, it was not then declared.
Att, Gen* What was your discourse about
then?
FUher. There was notice of the king's pre-
parinj; to come for England.
Ati. Gen. You sny Mr. Harrisons a» Ibere?
Fixher. Yes, and talk t'd verv little ab^ut the
matter, but ordy that there uVre preparations
for the kinjjfV cominjr,
Att. Gen. What did Lowick say to you ?
Fi%her. 1 have told you all tliat Mr. Lowick
said tome.
Att* Gen. Rejteatit af^in.
Fhher. He aaid he would he ready to scrye
bis master to Uie uttermost of his p«^ver.
Mr- Cowper. Had you no discourse about an
act of parliament ?
Fiiifi^. Mr. Lowick said it waj3 not conve-
uient to talk wilb mnre than one at any time, tor
there wrt« an act of jmrliament on ibui, lliat
under two wtliie$s(^8 nolliing should atfect a
Oiau's lite in treason.
Att. Gen. The act of pailiament was then
a- makings
Trial of Robert lAmck^
t«
X. C. X When Mr. Lowick sairl he woul
Berre hia master, what discourse had y
about it ?
Fiiher. Mr. Lowick said uot a word wifhtii
bul at the door he aaid be would ser?e hts
ter to liis power.
Att. Gen. What was that they would tw
talk with above one at a timef
Fisher. N othin^ that was Uinught treasonaU
practices sboubl bt^ discomsed before abo?e 01
at a lime ; f-o I understood Jt
Sol. Gen. Tbcn^ my lord, we hare done.
8ir B. Sh<fU€r. May it please ^ our lord«bi|,
avvft you gentlemen of the jury ; 1 am oCcoutt
sel ill itiiM case lor tbe jiriJioner at the bar, arii
we do hope here is not evidence sutftrifiit tl
conwict him i>f hi|;h treason ; the <pie>tian
not, Whether there wa** a plot or a conspiracy
to assa^inate (tie kinj^, or to prepnre for sn
va^ioii ; but all that ^ou are to consider, (m
tlemcn, is^ whether the evidence aj^^iiiist Ml
Lowick be suOieieut U* convince you^ that
did desifjn tu seize and nsHjissinale the king
ibere are three wiinesjies proituced j but
think til is la»t witness, Fibber, his testimoa|
does not hurt him in the b ast. We know yot
b»rdship will deelare and direct the jnry» thi
the evidenc e in a case of treason ou^ht t» I
pl;iio, not only willi resfnE^'t lo ibe fact, that
was d<»ni*, but also of »ucb fact* as are the e»
dences of a mun^s intentiunK ; and those ai
not to be const iiied by strainsj and tn1endiiM>0l
or implications, unless they be such aa ffi
dently, naturally, and to common undemlaiid
\n*;^ express tbe intention, it cannot he gol
evidence in tieanon : now we say, that mptal
Fiabf'r has said nothing at all that will afl^
tbe prisoner; for all ihat he tn\ys is that tf
8th of Febniarv be said he was ready to ser
his maxter to ibe utmost of his }>ower, and aiV
words as well as these may be om si rued I
mnke a mati g^uilly of treasonable mtentionl
fi>r it miebi be a recollection of favours recei'
ed, or it uiltf ht lie a (rrateful intent to seive ht
upon particular occasions ; but that is no el
dence \\{yon this indictment. Suppose it wai
serve bim upon the su|>posed intended inrasioi
yet, Hitb Rubmis^irtn, that is not evidence
tbe overt-act laid here; here is no overt-i
mentioned of preymrinii arms, or encouragii
niein or seducinpf tbe king's subjects, in ord4
to the Utter restoriugf of the late king^ J
or tbe expected iandinsf of Llie French, or t|
litve. AH that is laid to tbe prisoner's ch:
IK, the compassing the kiny^^s death, and a d
sign to assassinate him in bis coach ; and
order to the assassination, be was to buy an
and bok^es : now all that he says is quite
another nature, of a ouite different strain, ai
has no tendency in this mutter; and nolhii
be says Itiat Lowick should say» btit m app
cable the other wa\, and lends more natural^
to the iniasion, Ihan to tbe assa^isiniitiirii. Yoi
lonl^bip olMierveR, there was some noltce takf
of what Mr. Lowitk should say, concernin
tbe art of parliament, that be v>onld not Cal
with above one at a itnie : how far, wheD If
2)TJ
Joy High Treasm*
h eoooernetl, such loo^e discnurse ought lo be
infofced before a jury, I must leave to your
for<Uhip; thou^^h n man miiy he iunocent^ yet
lie iiia\ be cautiooi^ and the more innocent,
p«Hisp» (lie more cautious; but that ia nppli-
cMe to the invasion too, and has no rHalion to
tH« treuoD in this indict ment mi>re thitu any
flilief* It sliewfi he %vhs more wnry than f^ther^
wifre, but it is not appljeatile to I he fact that he
mw <taaJ$ char^ecl vvilh. Thi-n the whole of
the evitience dependB ujjon the testimony nf
Mr. Hai-ris ftnd Mr, Bertram; and wetliink
ihey aje not two wttnesse* to one thm;»', and
wbjit they lay must be strained, and intended,
lad pxetiimed, to make evidence ot^ treason ;
fbr firbat Mr. Harris ^ays about the dtseourses
Wtiviecn bjm and the bte kin^ James, about
meiniig^ ordern from b\v George Bareley, and
_ t over trum France, and the several
Tand Mr. Hare travelled, aud the dis-
t between «ir George Barcley and Iiita :
' yovtordship will acquaint the jury, that is no
fTidmce to aflect Mr. Lowick, nor \s hat Ber-
Imbead and Hare aifre*?d upi>n dwe>t any way
I l4eci Mr. Lowick ; for those thinjrs may he nil
, and yet Mr. Lowick innocent of wlmt he
audi charged with in t1u!$ indictment ; he
riayi. That upon the first Saturday be law Mr.
}^wick at llie confectioner's, hut lie cannot
•ty be staid thereat all; there wa?$ not a word
ipoJlvn by Mr. Lowick that he remembers then ^
, vnt whitt he ^ys that !«eems to touch, and the
I Boly ibmiT that touches Mr, Lowick in all (his
ce is* thai ofvon Monday, Tuesday * WttU
' or Tlnu'silay, it is a pretty brge lime,
eft the 1 3th and the 22iid, he wam talking-
I Mr. Lowick about the barhnrity of this
and that L^nvick aAer all said be
\ «ou)d obey orders : now with wuhmission, my
Wd, lo make that to have retation lo the as-
■WtiatioD must be by a forced » strained intend-
JMoi; he doea noi declare what the orders
J ; nay, be does not affirm there were any
ri for the aasaasuinlioni but only that he
[ woald obey orders ; here is no order by writ-
I bf, no order by parole that i^Ir, Lowick c!e-
dared he would obey. As to what Lowick de-
cUred about hi!» intention of ridiof^ out and
' the kini; in his concht that cannot he
; llie order lliai he was to obey tu as-
! the kingf, ihnt order dr^es \wt apjiear;
there are no footsteps of it in all the cv itlence ; wj
lli»t there i* nothinj; in testimony that wdl hurt
Mr. Ix>M'ick; then upon (be *Hu*\, when they
niiifd toj^elher, Mr. Harm says, ihai there was
*" -se of two men ; but it docK not appear,
the witness give any ac^^onnt vvhat
» two met! were to be f*»r : it is true, two
men he was to ^ct clinchar^rod ; hot that h not
^ ttidence that tlieie men were lo make a part
of thoie forty ; neither the words before nor
(Wcirds ufter ran have that conf>iruc<ion ;
.it does not uppear it ua« for any pnrpo!?e
now in the case of life, whi^re a man
ndi at the Uir, we hoj>e f^uch an evidence
dl not be consti'ued to make a |>root* of a
[imioiiable intetition, that thc^ vere to as-
D- 1696.
sassinate the kinjr, or to make part of the forty
that were to do it ; m hen it does not ap}>ear they
were Ibere, nor who they were, nor any %ovt of
notice taken or g^iven upon what account they
were pnivided. And then as to Mr. Liertram^g
evidence, it is palpable that bi*i evidence, and
whatsoever he says, cannot amount to make one
witness to prove an overt-act within this staiutei
and that there must be two witnes^ses Jhe law
ret} ui res. What d<jes Mr. Bertram say, to
prove any man gruilty of treason, but only by
intend me lit, tlioucrht or suspir kin ? it is true,
Mr. Bertram^s evidence would be^'Hwf enoug-h
to commit a man upon sii*;picion of treason, hut
to convict him it eannoi be. He sayK, that in
the beifinningf of February he spoke to him,
and told him he would employ biin in a busi-
ness that would lie for hi^ a«lvunta*^e, but he
must ask no (questions: Tlifs is very dark, for
the meaning^ of it does not appear what was in-
tended by it ; it mij,4it be one thing as well as
another; it might be to employ him in his
Gimily, or it mi^ht be to send bini of a journey,
or it nn'sfbt be the taking of a farm ; but lo ap-
ply that as an evidence of a charge of high
treason, that we think is very hard, and we
hope your lordsbtp wdl think so loo : but then
he coines and tells vou further of a discours*
upon the 14th, of bis ridinjj out suddetdy, and
thai the king was to be seized in his coadi ; but
he does notsay that he was to seize him, nor ttiat
he would be concerned in it, nor that be knew
of it, nor diit declare at what time it was lo \m
done, nor any thing' certain whet her it was a
prophecy, or a dream, or a story that he re-
lated a^Vin, or what it was ; there is no con-
nection between the riding- out suddenly ^ and
the otiiej- words of seizing" the king" m his
coach : Then be ways be gave him a jjuinea to
buy him necessaries ; the man acknoi% ledges
^Ir. Lowick several time^ had j^iven him in
charity, money, cloaths, and other thinijs, and
gave his wife a guinea, as you idwwrvp, in cha-
rity ; but he gave him this n^uioea on purpose
to buy him necessaries; and it is hard thai a
man^s charity to a country luao, to a townsman,
lo an ancient ac<juaintance of twenty years
standingf, lo a persfin that be bad been familiar
with formerly, and known to have lived well,
should he misinterpreted aufl strained, to make
it a jfiving: him money as subsistence, and are-
' ward ftir the doin|rf such a mtschievous bloody
I act : we say, his chsrriLy to ihiji man formerly
I is tnconsisient with the supposition (hat he
could be privy to such a baHj^irous desig^n now ;
and we hope the jury will consider the charac-
ter ihat that very man has ^ivrn to my client ;
fur Uie same xviinpss gi'res you an account of
\m l^eliaviotir aU al ^n^i^ lhat be was not given
10 raKh atnl barhju-ous actions, nor guihy i>f any
malicious ihinjr ; nay, that he prevcntpd mis-
chi^i', and the kdliug of people in cohl bh»od.
We must leave it to the jtiry's coosid era lion,
and your lordship*s direction* All these I h inert
thai they say may be hue, and Lowick be not
jjndty ;"ftnd the acquitting of Mr, L'mick will
be no rcflecttoa upon the wiinvsteti nor any
I
I
I
299J S \V1LLIAM ITL
iliscreilit lo thi^ te?itmnniy that has l>efeti ^wen
of this coi]8}Mrac^ ; but we hope it is iioing^
justice to this iiiuu, the VFitne&ses not €ouuii|f
up to the proiirui* what is laid in th« imtictment*
We niusl bc^ vour lonkhipN paiietire ;i lillle
long^er, and call sinnv Witnesses tu ^ivf you an
sccou[ithowlon<^ ihey have knovvu Me, Ltiwick,
and what lu^ real character i& ; they uill U'll
you he Ls a peaceable^ gomi niiiii, and shevi' you
that his temper and iiicltnatiim wua rather to u
sober, i|niet lite, than lu lead him to sorb ac-
tion, aud titat tbey cannot thjnk him likely to
be tempted to be concerned in such a desii^n ;
and th«u we mtxst leave it to the jury. Call
Airs. Yorke.
Lowtck. I beheve I hero is noWdy here that
knows me, but uill i^ive tne that chiiractetv
[Mrs. Yorke cacne in, and was sworn.]
Sir B, Shower, Pray, Mrs. Yorke, how long
bave you knnwn Mr. L'nvick ?
Yorke. About a d'tzen or Iburteen years,
t^r B. 8/tower. What aort of du^poaitioo is
he of?
Yorke* He is a civil, honest mao as ever I
saw in my Jife, or ever knew of ; and I never
heard other wiiie from any one that knew him.
air B. Shoa-er, Wbal was he in his actions?
Was hemahciouSf org^ood-natured i*
Yorke. As ^od a natured man as ever f saw.
Mr. Moinpesmm. Hik^i he the reputuiiuu of a
erueU bloody-minded man?
Yorke. Uuile the contrary. He lodged in
my bouse half a year ; it is not quite u ye>ir a|Jpo
since he Jay at my hou94.'« He was the most
obliging man that ever hy in my house. He
was iO civil to m)I the lodgers, \hsit they ad-
mired him for bii^i goodness, and made Ihem in
lore with him<
X. C, J. How came he to lodge at your
bouse ?
Yorke. He came from his other laadlmly j
Uiey could not agree ; his other lanillady was
a sjort of a kIitl-Wj and tli€rth>i'i' lie dii) not cure
for atajinj^ there ; and I dt»ircd his comjianyt
becHUiie I knew liim to be so obliging and ci\ ii
a man.
i. C. J. Where is your bouse T
Yorke. In Bioomshury.
X, C. X What in his way of liiriwg ? la he a
man of an estate ?
Yorke. I cannot tell ; I did not enquire into
tbftt.
L* C, J* Had he no employment to get his
living by f
' Yorke. I ih not know any tliing of that ; I
never enciuired into it ; he paid me very ho-
nestly fiir mv lod|^ii);f, and he is a very good
tuaOf for any thin;; I know.
8ir B. Shooter. Then call Mr^. Mosely. [She
came in, and was sworn.]
L. C.J. Well, what do you ask ibis gentle-
woman?
Sir B Shau'cr. Pray, Mrs. Mosely » will you
toll my lord nod llie jury, do vou know Jilr.
Lowick ? — AIohI^. Yes, Sir, 1 do.
Itjir B. Shower. How long have you known
lum?*-«J£ofc/y* Near twenty years.
J Trial ofRoigft Lowid,
0
Sir B. ShoTitr* Pray give an account, u,
your knowledge, wh.it disposition aad teiu^^
he is of, whether he is rash, tualicious, bloody,
and ill-natured.
Mo$eh/. He is a peaceable, tirtuous,
rnan, and a n^an that I never heard or saw tl
creature thftt could speak any ill thing of hi
in my life ; nor 1 never heard him spt^
thing irmliL'ionsly of any creature in my "
di> iJiL'ui a prejudice : so far from that^
is a man has a character, perhaps, abo
man that 1 could speak or bear of in my Iif«
tipeak it even above my own relatimis ;
may have Nome pas2iions ; but I never
gentleman m a passion in my life,
lain in my house several times, and h*r has
company come to hiro, but never any that
scandalous one way or other. I never m
htui fudilled ; nor ever heard him swear, ©<
any one accuse him of any of those things.
fllr. Mompetwn. Call Dr. William HtWi
(He did not uppearl
Sir B. Shouer, Thft prisoner has 9ometbici|
to say for him-^elf, my lord; hut we must subi
mlt to your lordship^s cont^ideration, and tb(
jury's, whtihifr ilicre ha any evidence but whi
ts dark, ami faxnirH of suspicion only ; suspi'
cious it is ; but whether there be any evidenoi
that is plain and direct as the law requires il
cases of high-treason, we mu^t leave it to yoii|
consideration, tor we apprt*hend there is n
Lowick. My lord, as to thLs businesa, tbl
thing that 1 bland accused of, the Assassina^
tion, I know nothing in tlie world of it, a»
never did, directly or indirectly ; and if 1 ai
cfiovicted» and could, 10 save my hfe, be tb|
death ul llie poorest child in the world, | wimiM
not save iny lite tu do it.
X. C. J* Look you, I would put you to makt
answer to some thinp ; you were at sir Geargi
Barcley^sat the cootectioner's in HtdlMjrn ; ai
it is sworn he came over upon suth a desigq
Then you were with Mr. Harris at Rtd-UoDf
Fields, and thfrc he was speaking to you oft
horridness of the de!«i<^n that was to 1»e rxecutei
upon the king's person the SalUfday^ tK*for«|
and he told you he did mislike it ; and there**
upon yi/u answered that 3'ou would obey or*
ders, and tliat sir George Barcley had ordi
for it, otherwise he would not do it,
Lou irk. Sir Geo^j^e Barcley never spokeoiM
word of it to me,
L. C. J. Every l»ody knows now upon whi
design he came over from France, and wb<
]IIr. UarriK shcwt'd dissatisfaetion with tbll
thin^t you nnole that aiihwer to his disctmrse.
Loftttk. He never said one tiyllflUle to me of
it. 1 trust to your lordship's judgment and tb^
jury^s meri^y,
L. C. J. And then I would have you anaue^
to another thing ; when you dined together
the *Suturday the ^2nd, v^hat were those
men that could not be discharged vvhhuut yon f
LoiiJick. My lord, I kni»w nothing iu the
world of two men.
X. C. X You went to discharge them, for ihf
king did not go abroad that day.
fof High Treas^,
. IknowDOthinff ofit.
He swears this, and that is as to
theo aa to Bertram, what desigrn was
yon were to engage Bertram in for
•ffe, ami be was to ask no questions ?
. My lord, be is a poor man, and my
SB, and 1 have at all times, from time
HT this seven years, helped to subsist
Its family, that he will not deny ; and
vral times giren him both clothes and
J. Then I would ask you again,
came to your lodging on Friday the
'ebniary, and you told him the king
seized m his coach, and said that we
ide out very sudd^ly, and you ap-
im to meet the next morning; and
le did not meet vou blamed him, and
luld have been the same thin^ if the
been in the field. Look you, 1 would
give answer to this if you can.
. I remember nothing in the world
I word 1 assure ^ou } and to the best
nenobrance, I did not see him in two
r.
en. 'hly lord, I must beg leave to
* the objection that the counsel for the
lave made, that there are not two wit-
nrove the overt-act laid in the indict-
\9o the law is not satisfied. In answer
[ desire jrour lordship's favour to ob-
r the evidence is, and then we shall
ler there are not plainly two positive
of the overt-act, by agreeing to assis-
! Idng. The first witness is Mr. Har-
t lordship observes, that Mr. Harris
account that Mr. Lowick was at sir
Itfcley's lodging the first day that it
we been executed; and that afterwards
die 15th and the 82nd, those bein^ the
second days that this was to be done,
I and Rook wood, and the prisoner
were walking together in Red-Lion-
■d there had some discourse about the
assawiination, and the barbarity and
■ of it, and Mr. Harris and Mr. Rook-
ers averse to it. Mr. Lowick said he
«y orders, and he was sure sir George
would not do it unless he had direct
r it ; that was twice repeated by bim, as
wears: and afterwards Mr. Harris tells
tthe 9fd he dined with Mr. Lowick, and
»ick observed that Mr. Harris came in
M sweat, and asked him how it hap|>en-
taid he had been about to get Hookwoud's
at were to seize the king ; for he was
one party. Says Mr. Lou irk to him,
ed not grudge to du it, you have six
I a day, I have nothing; and yet T, at
I chaise, am to provide two. This is
ifevvideoce as well can be of his being
»the design ; and his engaging people
vwn charge, shews a gr«;at deal of for-
waail z«il in the prisoner to the busi-
My lord, I think this is positive and
*i4aoe, and not only made out by in-
> aod eonslractioQty as sir B. Shower
A. D. 1696« [9QS
says, but plain, positive proof. The first day
he was with several of them, and when they
discoursed of the thing afterwards, he declared
he would obey orders ; and what could tluwe
orders be but for what they were discoursing
of? And nothing was discoursed of but this de-
sign they were engaged in, and this was to
justify the thing, ami take offthr apprehensioB
of the barbarity of it : This is Harris's testi-
mony. The next witness is Bertram, and be
tells you, that the litb of February the prisoner
sent for him, and when became to him, be
asked if he would engage in a business that
might be for bis advantage, and ask no ques-
tions ; so at that time he did not acquaint him
what the thing was, but that shews it was a
thing that was to be kept secret at that time, ia
regard he did not thina fit to acquaint him at
the first instance. But the 14th of February
when be met him again, the day before the
first time that it was to be put in execution,
Bertram swears be told him that they were to
ride out the next morning : that must be Low-
ick and Bertram, for there was nobody else
there ; and that the prince of Oran^ was to be
seized in bis coach. Was it possible the pri-
soner could be Ignorant of it P when he en-
gaged him to go upon a design without asking
qutstioas; sent for him the day before, ac-
quainted him they were to ride out the next
rooming, and that the king was to be seized in
his coach, and bid him be ready against next
morning, and gave him a guinea at that time ;
the witness says it was for necessaries, but he
does not pretend that it was for charity, as for-
merly. And that must be for necessaries fnr
that purpose that they were then discoursittg
of, when he desired him to be ready the next
day, and gives him money to buy him neces-
saries : what can that be, but necessaries fbr
what he was to be ready for ? And then he did
not come the next day, and he tells vou why,
because he thought it a very wicked and on-
lawful thing, and so he disappointed him ;
and the next time Lowick chid nim, and toM
him, he would have served hiid so if the king
had been in the field. This is plain, though I
believe Bertram does speak as tenderly as jbe.
can, being his friend and old acquaintance,
and is vrilling to say as little as he can of hiaa :
so that I believe nobody thinks but what Ber*
tram says against the prisoner is true, and
what he swears is plain and positive. To
shew that Lowick did engage in tlie design, be
acquainted him with it the 14th, by telling him
the king was to be seized, and they were to
ride out, and he was to be ready the next day.
L.C. J. He does not say they were to ride
out the next day.
Sir B. Shoaer. No, the words were, We are
to ride out suddenly.
Att. Gen. 1 think he did say they weie to
ride out the next momuig.
L. C. J. No, call him in again.
Mr. Ctnrpfr. The words were, We shall ride
out suddenly, and bid him meet him next morn-
ing ; and aflerwards chid him fin* not meeting
8
I
I
8 ^vl^LIA^f iii.
•ocurdiug^ly, anil told htm it houl b&eh Hre
same ihii}<^iritit' kiii^^ Imd Uctfa in the firld.
L. C> J. if y*iik caunoi a(;jrce ujiou ihe evi-
ileiict^, you must call in iUp. witne^iit,
Mr. j\Jaiintitpie. My lord, we are agreed
upon the evkWii'-e, it was suddenly,
L. C. X Wfll tUciit liiere is no uoc^ioa;
hare yuu tloue on Imth sides P
Coufuei. Yesi, uiy lord, «ve submit U loyotur
lordship.
i. C- 7. Geullemenofthejun', thisprb*mer
at Uie bar, liohen Loivick, ts iodicted lYf^high^
inAamk, for c(impas$ms^ ^^*^ tinHt^Q\n\^ tlie
dMtb nod desiructiou of' the kint^ by an ai^Sia-
•ifi&tion; you have hi^ard ivhtLt endeDce hus
heen ^-tven upon this indictment. And in the
lirtil place. It is pruvi^d to you thut there wait a
desi|^n to assassinate the Uui^, uJiiiili was to be
earned nn under the conduct ami mana^^^e-
ment of sir George Barcley, The *|uestion
that you are now to consider of is, Whether the
prisoner at the bar was concerned or en*;aged
in the prosecution of that desi^'^n ? There have
been two witnesses produced, who have ^twn
ibeir evidence, and huve been very «irtctly exa-
jiiined, and observutious h^ve been tnade upon
ihe tesltitiouy they have jfifeu.
The first wltue^s is Mr. Han is; and he
^vt9 you some account ol the original of this
3esig:ti'. He lells you how he was at ^t. Ger-
niainSf and introduced to the late kin^ James,
who ihil express a ^reat kindnesii for him, aud
told hnu that be hud an opportunity of doin^
«oaietUiti|^ for hiui that would be for bis advau^
tag-e : and that he and one Hare, who was pre-
•ent at that time, should go into England, (lor
it neems they w^re both together iutroiiuced
by colonel Parker) and should be subiiiiited in
England, and thereupon direction!^ were g^ivcn
tbem ^that coursie tliey were to take;
whieh was to ^n to Calais, nod to each
of them ten lewidorcis were ^^iven Jbr their
charges; and they u ere actjuaiitled, that if it
happened (hut if they sliould lie thete s** hm^
lor want of a *vind to brin^ theui over hither
that their money was s|»ent, proviision should
be made lor llieir supply there. They had
farther directions, that when they caiiie into
England, they should a|i|dy themselves to sir
Getjr^e Barcley, and Jiiilow bis orders, with
instructions how in tin4 him ; hcmyr told that
Sir Geoige Darclcy would be walking in
Coveni'garileo t^vt^ry Monday, and every
Thursday night, <tbouMlie hiiun>of sixi^r i»even
o'clock, aud that they should know him l>y a
white hand kerchief that wa^i to hang out of liis
pocket,
Mr. Harris further tellp* you, That they did
come to CatdtH in ordtr to embark tor En;!^land,
and ttietethey happeued in stay a eotii»iderable
lime, even »o lonj; that then- money wouhl not
defray their expences there, aud iliey found it
trueus il was prouni^ed tbeui ; for the pret^idcnl
of Calais [laid the reckoning for them at- the
place where ilicy hnl^etl - and alter wards they
isauie into EjjgUnd, and landed in Kent, and
iMUue lo Ko4;heit«r, and from tbeuce to Euudou.
Trial ofRohcr-t LcKnick^
P
AtHiUt the latter end of JaDuary^ ^ ^tite fft
it should iM^ni it was the 14th new
is the 41 h old j«lde, Ihey were at 8t ^ ),
he telU you that he did i^o, the tii>i m'.. hu:
after their arrival, into Co\ cm- K:af den, in I.
after «.r G^*or:;e Barelf-y, but then mi<i!>ed bi
But aHer wards his ciaopaniuu, Mr, Hare.
with otie Berkenhead, aud cotujdaiitntg tl
they had not met wiih sir Georije Barch-y
mil ding to the directioua they bad
whereupon, by the means of Berkenhej
were bn>ught to ihe speech of »ir Gooj ^
eh V, who gave them reception, and owned tl
heliad auUiority to &uh:iist th(^«n : hut aaid
had not then mouey, but shortly tchould,
when Ins ttad, they should be bure to reeiit*
their stibsistence. He tells you, th:<
sir George Barcley gave them
money « fm) iug theui at the rate of uve
ting^ a day wlitn they had no boraes,
tliey had, iw shitimgs a dsi^: st^
themst'lves altogether under his co*
rooducL He has* given you an act ,
discour».e he had with Mr. Hookw
whom he di^'o verted what the design
which he was to bbengugedt And Lhedi
assassinate the king was tirstinlende*! to"
uxecutiou on Stiturday the 15th (»f Fehriiary
at which du'y Mr» Harris and others
sir Geoi^ Barclay's lodgings, air Geoi
they were his Janisaries, and al\erw.
reised tliem, and said they ^vere men
nour, and told tbem that they were to ai
the prince of Orange autl his guards ; but
seems the king nut going abroad that day, thi
lost that opportunity.
Truly, then Mr/Harris began to be a
troubletl, when lie understo^ the meaatng
his being under sir George Bnrcley*^ coDdi
And he tiays that after that first Saturday
15tb, and fcetore the next Saturday the SSd,
met with Lowick, Hook wood, and Beruai
he was complaining of his being eug:
such a deiigti as thi,s was. He called
the murder of tlie prince of Orange, and 0
it was a barbarous tuitig, aud he did not like
nor Rookwood neitlier; but as for Lowia
whether he ditihked it, or uo, J know oal»
he made answer to him, 1 will obey oi
ftays he, sir George Barcley has orders for
or otherwise be would not do it.
Then you are told farther, that afWr thtS|
Saturday the 2 2d, Mr* Harris dined w
Lowick Q.t a cook*s at the end ot Hei1-lii
street, and being there together, Harris
iu a sweal, and was aiiked the rcasoii I
Lowick, he said he bad been giving of onh
for the getting home men Ifj^eiber that w<
to go utidcr iCookwood ; aud Loivii;k told hi
he niii^ht very well do it, for he liad \\6ky 0^
day ; but says he, I am to subsirit two meu,
have nothing at all. Mr. Harris wishe^d
to go to sir Gdtrge Barcley, and cuntplatfi
it to him, hut he f^uitt he wouhl not: Ult
seems, it b«*ing then understood liy the til til
tlm king did not go ahruad that day, Lowii
sutd he u^ast t^o itud dii^cUarge the tw9
/
305 j for High Treason:
abant it Tbb is the sum and sub-
^f 1^1 J*, ii arris's eviJciice agiinst Mr.
Lowkk*
The Deri witness is Bertraiji, and he tells
on, llifttsonie time be£nre the 16th of February,
»hjcb i*a». SI 5 I l«M you, the very fir«l iJay
tliat I I to assassinate the kin^,
Mr. J bim, and told lum, that he
voulii |iui hiw (J|ii»u a business th»t should be
for his Ddrantag-ef if be would undertake it
lrilh«u( unking* any questions : this was some
llaie beibr«ff but the certain day Bertram Joes
^^^^^etnber ; but he tells you fiii ther that on
^^^Ipjthe lltb of F«ebruarv, he was iviih Lo-
^P^Kathis iod^ngi, and lie said unto hi m,
Htbal the king, be did believe, was to be seized
In btt criacb) and we are to ride out suddenly ;
tod then he g^^e him a guinea to buy btm
ries, and withal bid him meet bira at
srl bouse in Hart street next morning ;
ertram tells you, be had undemood what
» desig:ii wns, tor be had it before from Char-
atid did forbear to go the next morning,
: he did diKiike it. Alter this Mr. Lo>
. him and chid him for disappointing
Mbim, in not meeting liimas he directL'd, for,
|i«j« he, it would have beea the same thing if
kjn^ hail been in the field. This is the
liani and substance of the evidence that Ber-
|tmn has given against hint.
Now Bertram being crosS'Cxamined on Ibe
Whalf of the prisoner! says, he haih known
_ kim a creat while, and that he ib a mHn ot a
kbie and fair dii>posiiion, very charitable,
, he has given him money before, and
ularly a gmnea ti> his wife in liis abiience.
I might have nientiuned the evidence
^<f Fifber to you, but that is but circumstantial,
\ not come home to the case ; but being
t it may be mentioned ; and ibuL is, about
i of February, Fi^iher had some discourse
^ickf auii it seenis there was notice
^the intended invasion, and Lowick
_ Otild serve his master tailhfully ; and
\ wtiuess iliotighi was meant of the lale
and he said at another time, that he
\ not discourse with above one ut a lime.
E of Ibe late act of parliament that was
tben a iiassing, relating tu high treason, that
nfuirto two witnesses. Now, I say, this is
HOI toy proof against the prisontr, hut it is a
circumstance that may shew his inclinatiDn to
1 I for the prisoner hare insisteil
opou .... ..i ,iliciency of the evidence that has
becQ given on behalf of tbekiugt and have said,
(bat the late act of parliament requires two w it*
•Boea, wUicb is true, but not two witnesses
to any one overt act ; hut if there be two
witptmw, one to one aud another to ano-
ibtr overt act, that is sutficient ; but they say
thu it is not so in this case.
Id the first nlace, they object against the eri-
deiji IV en by Harris, tbey say it is short,
tbd- It to your consideration ; whether
ttv fjut IS given by Harris concero-
k, doei prov« to your sattnlac-
don, tbdt be consented and agreed to the as^
BUfisination of the king, yoa are to weigh the
evidence ; when it is sworn that when Harris,
liookvvood, and the prisoner were walking in
Hed Lion Fields, and talking of this horrid de-
sign, and Harris c^mpbineil that it wns a bar-
barous tbin^ to murder the prince of Orange,
as they called him. you must consider what
answer Lowick did make about obeying uf
orders ; then his subsisting of men at his awn
charge without pay* and complaining of his
having no pay, and hia discharging iht;m the
last day that' the assavsinafion was intended,
that I must leave to you, whether or no ting
is not an evidence, if you believe the witneas,
to satisfy you that be was engaged in this de« j
sign.
Then, gentlemeD, he has also been desired
to git^e an answer to ibis question, and to tell
upon what desii4'n he w as to employ Bertram
that should be far his advantage ; but he was
to ask no questions; and afterwards whether
be did tell him the king w as to be seizrtl in hia
coach, and they were to ride out sudden)^ , and
bid him meet him the next morning, anu ..bett
he did not meet him, he said, It would hare
been the same thing if the king had been in
the field. If this he an evidence of Mr, Ia>^
wick's engaging in, and agreeing and consent-
ingto the design, then bens will be another
witness against the prisoner besides Harris.
Gentlemen, you art to judge of this matter
and of the evidence. It Ls true, we are not t»
put in the case of a man's life, any forced and
violent constructions upon any words or dis-
courses ; but W ihe e\ i<lence be plain and clear,
1 hough he did not say in express words, that
he did design to assusiiinate or kill the king -
vet, if upon the whole discourse that past be-^
iween them it apjiears |dainly, clearly, aud sa-^
tisfactorily to you that he did consunt and
agree to this design, or waa engaged in it« ,
here is another witness, I say, lo prove bim
guilty, besides Harris ; you are to considee
the whole evidence, the subject matter of dis-
course, and if you are satisfied, I say, that he
was engaged in such a design by the proof of
Bertram, as well as of Harris, then there are
two witnesses, which jb as much as the Jaw re-
quires.
But, indeed, the counsel have called several
witnesses to prove thai the prisnner has liveti
very peaceably aud quietly ; one woutan says,
she has know n him twelve years, and that ha
lodged at her house, arid that lie was a man of
great temper and candour, anil not dii^ortlerly,
but had a general good esteem ami character ;
And then there is another, Mrs. Moseley, tha^
prof es the like, and says, she has known him
theae twenty years, and she says no man has m
better character : And Mr. Bertram hath said,
that he was not of a rash or bloody tem^ier, ;
Now, genllenien, I must leave it to yoa,^
upon the evidence that you have heard, there
are these witnesses that have been produced ^'
and there are Utese circumstances Oiat ap|iear
iu the case; il^juu are aax»^i»d u^^u Axv^ ^\-
307} 8 WILLIAM JR.
dcDce that Kubeen given. tbAtthc prisoner Hr.
^wick did consent to, aDd engaj^e himself in
that design of assasvinatiog the king, then von
are to find him gnilty ; if you are not satisfied,
vou are to find him not ffuilty ; you have
heard your eridence, and had nest consider
ofit.
Then an officer was sworn to keep the Jury,
who withdrew, and staid out about half an hour,
and then returned.
CL ofAr. Gentlemen of the jury, answer
to your names. George Ford.
Mr. Ford. Here. (And so of the rest.)
CL of At. Are yo^ all agreed of your Ter-
dktP— Jury. Yes.
CL ofAr. Who shall say for you ?
Jury, Foremau.
CL of At, Robert Lowick, bold up thy hand,
(which he did). Look upon the prisoner ; how
MV you, Is he guilty of the high-treason
wnereof he stands indicted, or not guilty ?
Foreman, Guilty, my lord.
CL of At, What goods or chattels, lands or
tenements had he at the time of the treason
committed, or at any time since P
Fortman. None* to our knowledge, we do
not find any.
CL of At, Then hearken to your verdict,
«s the court hath recorded it. You say that
Robert Lowick is guilty of the high-treason
whereof he stands indicted, but that he bad no
goods, chattels, lands or tenements at the time
of the high-treason committed, or at any time
since to your knowledge, and so you say all ?
Jury, Yes.
X. C. /. Discharge tbe^ury.
CL of Ar, Gentlemen of the jury, the court
discharges you, and thanks you for your ser-
vice.
L, C, J, Mr. Attorney, will you hare the
prisoners set to the bar ?
Att, Gen, Yes, if your lordship please.
Then the keeper of New^a'e brought Rook-
wood and Cranburuc, and ail tL«ee were set to
the bar.
Att. Gen, If your lordship please to give
judgnkent against the prisoners that are con-
victed.
L, C. J. Ask them what they have to say
for themselves in arrest of jud{ifment.
CL of Ar, Robert Lowick, hold up thy
hand; you stantl convicted of high -treason, in
conspinng the death of the king by assassina-
tion, what can you say for yourself why the
court should not give judgment against you,
to die according to law ?
Then the Keeper bid him kneel.
L. C, J. No, no, he need not kneel ; if you
have any thing to say, Mr. Lowick, we will
hear you.
Lotoick, I throw myself upon tlie king's
■lercy.
* CL (fAr. Ambrose Rookwood, hold a( thy
haad, (which he did). You stand oouvicted
[m
of the same high-treason, fhir oanspMng tho
death of th^ king hy assassination, what «an
you say for yourseli; why the court shoiikl not
give you judgment to die aceording lo kw f
Rookwood, All that can be said haabosn
said already, and so I shall say no mora.
CL cfAr, Charles Granbnme, hold up thj
hand. Then standest oonvicted of high-trasMnt
in conspinng the deaUi of tlie kine hy aasiMi-
nation, what canst thou say for Ayoelf, wfew
the court should not give thee judgment to dio
according to law 7
Cranbume, I have nothing to say bnt whil
I have said already.
CLqfAr, Then, cry»r, make prochmaliin.
Cryer, O yes, all manner of peraoon atf-
oommanded to keep silence whilo jodgniCHtil
in giving, upon pain of imprisonment.
L. C. J. You, the prisoners at the bar, llo-=
bert Lowick, Ambrose Rookwood, and CimAm
Cranbume, you have been indicted, «nd nMr
full and clear evidence have been oonvielMif
high-treason ; a treason that was advnnoed to .
the highest degree both of malice and miioMrf
against the king and king[dom ; yon dosignei
to assassinate the king with an mtent to sn^'
vert the state, and by the introdncinr of a lb*'
reign power to destroy tho ancient libor^flll
constitution of England.
Our French and Popish enomies, hj wkvft
Jou were employed in this bloody enterari|^|
id very well Know, that the wisdom nndhtaK
rage of his present majesty has rescued Mr
kingdom from that slavery aud oppr^nfm'
which they oi\eu threatened to bring uponm;
they knew that under his govemmeiit we bvfi
been protected in the enjoyment of our reKgilOi
laws and liberty for several years, and that kM
majesty is the head of the Protestant intera^
and tlie protector and preserver of the libcM
of Europe; and that upon the preservation Or
his Itle, and the safety of his person, tho goodf
and happiness of multitudes of people do de-
pend, winch the French king's pride and am*
oition has been ready to take hold of any op*,
portunity to eu:)lavc and oppress.
Your being engaged in such a horrid <
against so precious a life, and to be the bloflii
instruments tu give that dismal stroke, whk
would have bi-ought misery and desolation i
so many men, renders you worthy to nnd
a greater and more severe punishment than I
the law of England can be inflicted ; but tl
there is no greater provided for such crimini
is to be imputed to the ancient honesty and i
teij^ity of Englishmen, who, when they firaM
this constitution of government, never f^
gined England should produce such deg
wretches, as would endeavour by pk
contrivances to betray their country to af
yoke, and subject themselves and their f
subjects to the slavish dominion of atrai^
Your crime being so great, it is now H
time for you seriously to reflect upon it; ■
though you deserve to suffer the g '^*
punishments, yet I have that comp
your persons, that I wish heartily yoir }
^ me of tbif i>p}3<irtii9iiy h bieh ui now ptit
r liMMi*^ lo repeal. Anci since you are
1 by the Uw unworthy to live here^ lb«4
^^^ I mftlw |irep«raLion lo appear jit &uother
HH^ftlv mhtre yoo must hafe another trial,
nit intiiatil«a Ibearty ant] sincete repentance,
l»0«it# ft msre severe S€nleoc«. I hope this
•ilMBily,«idtbeju%iDeiit that is to M\ upon
|wa, ml be tn atltnuniuon to you to tak« bet*
tif iiiTioe in tbe )a«t paH nf your time which
bblijftiit ^ban you have itoms Jn the whole
mmnt of ronr tivi^a, and I hat you wilt be wistr
IbMl M u^Wqw the Ju'eotioo of th^se guid^
vbMQ prineipks anil doctrtoea Imto so fttr p«r-
Vifleil iiHl cxrrftpied yau« aa te eng^t you iu
noli ft bloody drti^;ii, I ihall IraTe you to
iMllEe Ibat pr«pai-aiion for a not her worUV, which
il pftt^ for men in your condition, and pro-
iiiM9 tilt judgement ol' the comt, ^hicb the
Imp iMili Uppointet} and tbe court does Award:
*11ift4 all ui you b« oonv^yed frorn henc<; to
*te^ifteii Iroin whence you cvtme^ and from
I 'iMct every 6ne of you is Uy be drawn upou
r mnrdl« 1o ibe place of ejiecutioo, wbare you
! HI to be Uaitged by your necks, and lo be* cut
'dawn vrbile you arc alire, your privy- ntetn-
' hfn ate to be cut o^, and your bowels are to
* ba cut out of your bodies, and burnt in your
* tiew I ycitlr beads are to be tut off', ami your
* bodies to be divided into lour pftrla^ ami your
* heidt end quarters are to be disposed where
* bii mjeay shall appoint. And I pray God
* te hftre tnercy on alt your bouIk.^
Cranhufnc, i bimibly dessire the hberly of
iiy wife and relations to cmne to me, and such
^fioes fts 1 shall desire may bare free recourse
ieme.
LLC. /. Vou aliall have that liberty that is
LtlWed to all persons in your condition.
] JUokmood. 1 roust beg- the same favour to
I lilt eofsa few friends and relations come to
I lee nie without a keeper.
L C, X Vou abftll bftve a warrant for your
ibBdelecomeioyou.
Kooht^Qod* I beg your lordship that you
would please to specUy it in the warrant, be^
nuK they would not grant it hitherto without
I keeper being by.
L, C, J* You mean, you would have your
bother periti Hied to come to you.
Rocheiwd, VeSf and some few relations.
L C> X What ie usually done in such cases,
bt It lie done.
Lamick, BIy lord, 1 dcfikire the Same thing*,
tl my sister may come to me, and that the
^ time 1 have^ i m^iy be ia private with my
\ friends.
Ait. Gen. If your lordship please, they may
[ five the names of' those they would have ad-
lliittcd to them, and then the Iceepci* will attend
Jjfotir lordfihip for your direction.
iL C- J. That tlie keeper must take care of,
r allow such a liberty as may endanger
« \ for their being aloue may prove a
as thing,
f. Gen. It ii reasonable they should tell
tbi Ibej ftre, before iUey Im ftdmitM.
[^
X. C. X Yoti allow them, ^ stippoie, lo have
piirate discourse w the same rounii if a keepar
be by.
Cranhurnt, No, my lord, we never bad,
AU, Gen. 8uch as your lordship ihinfai
proper to fa« AAimitted to them may have dU*
course with them in private, if the keeper be
in the room, but oo others byt such fts your
lordships shah allotv ; fur we know whut hss
been the ef^t ef a liberty of acoese iu some
prisoners.
L, C. J. Let US have a note of those names
that you would have come to you, and we will
g]?e directiatis that shall be proper iu it.
Vi.iff'Ar, Sheriff of Middk^t.v, you most
take them into your custoJy till ejcecution ie '
done.
Then the Keeper look away the Prisoner!*
mibeyi
L
On Wednesday, April 29, Ambrose Hook-
wood, Robert Lovvjck, and Charles Cranburnf ,
were drawn to Tyburn, where the two formet
delivered the following Papers to the aheiifff*
MaJOS LoWICK'S PAPtR.
la the name of the Holy Trinity, Father^
Son, and Holy Ghost, Amen. Iu the first
place, I die iu the religion 1 was baptized, vix.
Roman Calholic, and humbly beg the prayere
of all good people for a happy resurrection,
and of alt Catholics for the good of my souL
As for being engaged iu this for which f
die, it was never so posilive that 1 had w horse j
irom the beginning to the very last, nor never
see any allowed me, or the two men I was to
provide, as was sworn against me at my trial ;
nor had 1 any on that accouai , nor whs I at
any of their meetings when they settled any
such tiling. And as for any order or com-
mission from ting James, I ne^er see an/
since I came last into England, whicli is R0\r
aJiOut liA'e yeavs ; and I am con gdent none that
knows king James will believe he would give
any such order.
Indeed, 1 must confess, t beUeve king James
was a- coming to assert his o^vn right; and £
should, if ou shore, har^ done aoy thing ia
my power to have assisted him ; and, in order
to that, I should have been very glad to have
had a horse, but never had any«
And as for being concerned in any b!ooily
aifair, I never was in my life, but lisivc dune
my endeavour to prevent, as much as I could,
on all occasions ; and if the kdliug ihe most \
miserable creature in the world, or greatest
enemy, would now save my life, restore th«
kingj'and make me one of the greatest men in
England, i first would choose to die, because
against the Law of God.
Jf ony who are now sufferers on thts eccoimt,
think r have been too forwtird, and a promoter
to this design, 1 do now declare tt was never
my inclination to do iiny rash thing. How-
ever, 1 beg their pardons, and of all tbe world
I hftTf ftfieiKleU, eitb€r in Uiou^Ui^ vr^d^ ^
811] 8 WILLIAM III.
any action whatsoeyer, and do freely forg^TO
my enemies, and hope, through the mercy of
mv Saviour Jesus Christ, to have remission of
all my sins. Good God preserve the king*,
queen, prince, and princess, and all that royal
blood of Stuarts ; and may England never
want one of that direct line to govern them,
and make them once more happy ! I have had
the honour to serve my royal master in several
commissions, and tlie lost as major, and strove
ever to serve him to the best of my power,
and ever to be just to those whom I had the
honour til commanil. Lord Jesus, into thy
hands f recommend my spirit ! O Jesus, re*
ceivc my soul ! IIobert Lowick.
Brigadier Rookwood's Paper.
Having committed the justice of my cause,
and recommended my soul to Goil, on who^e
mercies, through the merits of Jesus Christ, I
wholly cast myself, 1 had once resolved to die
in silence ; but second thoughts of my dut^r to
others, chiefly to uiy true and liege sovereign
king James, moved me to leave this l>chiud me.
I do thcrefoi-e, with all truth and sincerity,
declare and avow, that I never knew, saw, or
heard of any order or commission from king
James for the assassinatiuf; the prince of
Orange, and attacking his Guards; but 1 am
Trial of Peter Cook,
[SIS
certainly informed that he, the best of kingi,
had often rejected proposals of that nature wmb
made unto him.
Nor do 1 think he knew the least of the par«
ticular design of the attacking the Guards at
his landing, so much talked ot, in which I wm
engaged as a soldier, by my immediate com-
mander, much against mv judgement ; but bis
soldier I was, and as such I was to obey and
act according to command.
These twelve years I have served my true
king and master, king James, and freel v now
lay down my life in bis cause. 1 ever abhorred
treachery, even to an enemy ; if it be a guih
to have complied with what I thought, and
still think, to have been my duty, I am guilty.
No other guilt do J own.
As I beg all to forgive me, so I forgive all
from my heart, even the prince of Orange,
who, as a soldier, ought to have considered my
case before he signed the warrant for my death.
I pray God may open his eyes, and render him
sensible of the much blood, from all parts,
crying out aj^nst him, so to prevent an
heavier execution hanging over his bead, tbao
what he inflicts on me.
Abibrose Rookwood.
AAer which they were executed as tnitoi^
according to their sentence.
389. The Trial of Peter Cook, at the Old-Baile}^ for High Treason :
8 William III. a. d. I696.
Saturday, May 9, 1(396.
This day being appointed for the trial of Mr.
Peter Cook, upon an indictment of lii^fli- treason
found against him by the graii«l jury for the
city of London, upon the commission of gaol-
delivcr^' of Newgritc, lioldcn for the saiti city,
upon which iodictmeiit he had been arraigned,
aiid upon pleading not guilty, issue had been
joined ; and the court having been adjourned
unto this day for the trial by~public proclama-
tion in usual manner, the court was resumed,
and the names of the men returned to serve on
the jury havin&f been called over, according to
the pannel, and the defaulters recorded ; the
court proceeded as follows :
C7. oJ'Arr, Set Peter Cook the prisoner to
the bar. [Which was done.] You prisoner at
tiie bar, those men that you shall hear called,
and personally appear, are to pass between our
sovcrei<Tn lord the king and you, upon trial of
your life and death ; if thereibre you will chal-
lenji^e tlicm, or any of lliem, your time is to
speak to them as tliey come to the book to be
sworn, and before they be sworn.
Cook. Sir, I desire you would not namethem
too fast, i'or my eyes are very bad.
CI. ofArr. John Ewer.
Cook, Who must I apply myself to, 8ur ? I
desire to know whether he is a freeholder in
London ?
CL qf'Arr, I know nothing to the contrary,
Sir, he is returned as such by the sheriff; yoa
had best ask him himself, he can best tell.
Cook. Are you a freeholder in Tendon, Sir?
Kwcr, Yes, sir, f am a ireeholder.
C<>ok. Sir, 1 challenge you.
Ci. of Arr. Henry SheVbrook.
Cook. Sir, are yon a freeholder in London?
iS/ierbnH>k. Yes, Sir, I am.
Cook. 1 challenfi^e you. — No, Sir, 1 beg your
panlon, I do not challenge you.
CI. of Arr. Then hold Sir. Sherbrook the
hook: [Which was done.] Look u|>on the
prisoner : you shall well and truly try, and
true deliverance make between our sovereign
lord the king and the prisoner at the bar, whom
you shall have in chary^e ar.cordiug to your evi-
dence. So help you (lod.
CI. (jf'Arr. Joseph iJillers.
Cook. Are you a freehohler, sir, in London ?
Biliers. Yes, I am. [Challenged.]
CI. of Air. John Brand.
Cook. Pray, sir, don't go too fast ? Are you
a freeholder m London. Sir?
Brand. \ am no Ireeholder in London.
L. C. J. Treby. What say yoa, Mr. At-
toraey ?
Att. Gen, (Sir Tbonas Trefor.) Mj \aiyt
JorHi^ TreoMu
i bftve any body that if not a Iree-
f«. So he waijMt by.
Irr. William Hull.
Mylord, I am no freeholder in London.
r. 2Vel|v. Wb^.whateitatebaTeyoar
What 1 haTe, ii in leases.
L TVeiy.^ What, leases for years, or
lives? — HulL Leases for years, Sir.
f. Then, he cannot serre upon the
Arr, Edward Leeds.
Hold, sir, let me see; are yon a
rin London, Sir?
Yes, Sir. [Challenged.]
Arr, Thomas Clark.
Hold, Sir, I pray let me look upon
r. I challenge bim.
tder-by. He does not appear.
Arr. Nathan Green.
Where b he, Sir f Are yon a free-
!. Yes, f am, Sir. [Challenged.]
Arr. Thomas Ernes.
Are yon a freeholder, Sir ?
Yes, I am.
Were yon one of sir John Freind's
•Ernes. Ves, I was.
Then I challeoge yon for canse, and
on my reason.
Dmrnall. I pray, let ns hear yonr rea-
rs yonr reason ror joor cballeiif^.
It is for being of sir John Freind's
ThmalL Then you challenge him for
Yes, that he was of sir John Freind's
J. Trehy. Well, brother Damall, how
I eaiise of challenge ? You are the pri*
Donosel, let ns hear what you say to it?
UamaU. My lord, what we haye to say
Ibis ; here are some persons fetumed
b pannel, that were formerly jurors in
diat was tryed for the same species of
that this gentleman, the prisoner, is
1 with in this indictment ; and I think
icsKS at that trial did mention in their
t my client, as beinff present at those
nsulu, about whid they me their
t ; these gemlemen gave credit to those
n, and fuund the verdict against the
iieo accused. We hunrtbly 8ur>mit it to
tddiip and the court, whether we may
thb canse challenge this person as not
nt, it being for the same cause and con-
t the other was tried for.
Gea. Sore Bf r. Serjeant i« not in earnest
objection.
VBmaiL My client thinks it a Tery
section, that be is not indifferent, and!
c sbonlfl be satisfied in it.
Gm. If Jie thinks so, he may except
bin ; bat if he insist upon it as a cause
Isge, we desire you would put the
4 my lords the judges determine it
Dsnia//, I h»Ta trid yon what the
A.I>. 1096.
[SI*
L. C. J. Treby. Bnt yoo hear the king^
counsel insist upon it, to bafe yon make it oul
in point of law.
Seij. Damall. My lord, 1 have stated tb#
case as my client desired, and we submit it to
yon.
L. C. J. Treby. Well, there is nothing in it.*
Serj. Damall Then my client, if he will
not hare him serre, must challenge him pe-
remotorily ; which he did.
CI. of Arr. Francis Byer.
Cook. Sir, are you a freeholder ?
Byer. Yes, I am. [Challenged.]
CI. (fArr. James Denew.
Denew. I am no freeholder.
CI. of Arr. Henry Hunter.
Cook. Hold, hold, my lord, I challenge hinii
as being one of sir John Freind's Jury.
Mr. Baker. Nay, that was not allowed in
Mr. Emes*s case; but you challenged him-
perenDptorily, and so you must now, if yoa
hare a mind to it
Cook. I challenge him.
CL of Arr. John HaU.
Cook. Are you a freeholder in London, Sir?
Hall. Yes, I am. Sir. [Challenged.]
CI. of Arr. JohnCullum.
Cook. Sir, are yon a freeholder in London?
Ctf(/ttiR. Yes, Sir. [Challenged.]
C/. e^iliT. John Cox. ^^ •"
Cox. My lord, I am no freeholder in Lon«i
don.
CI. of Arr. John Hedges.
^k. Hold, I phiy, JSir, let me look npoa
my paper, Sir : are you a freeholder in Lon-
don?
Hedges. Yen, Sir, I am. [Challenged.]
CI. of Arr. Thomas James.
James. My lord, my name is not Thomas.
Sher. Buckingham. He is returned, it seems,
by a wrong name ; we did not know it.
Seij. Damall. Then you cannot swear him.
CI. of Arr. Thomas Poole.
Cook. Are yon a freeholder in London, Sir ?
Poole. Yes, Sir. .
Cook. I challenge him, as being of sir John
Freind's jury.
Att. Gen. That has been orer-ruled already.
Cttok. I challenge him.
CL of Arr. Peter Parker.
Cook. Are you a freeholder in London?
Parker. Yes, Sir, I am.
Cook. I challenfife you, Sir, as being one of
sir John Freind's jury.
Mr. Baker. Nay, you cannot offer it again.
Cook. I challenge him.
CL of Arr. George Grove.
Cook. Where is heP Are you a freeholder in
London, Sir?
Grooe. Yes, Sir. [Challenged.]
CL of Arr. Nathaniel Wyersdell.
Cook. Are you a freeholder in l/)ndon ?
WyeridelL Yes, Sir, I am. [Challenjrwl.]
* See the seventh Resolution iu the Cai*c of
the Rc0cides, Vol. 6, p. 985, and the Casa
of Charles Cjmbume, p. %%l of this Voloma.
S153
ft WILLIASf m.
Trial nfPaer CwA^
CL if Art. Sainiiel Blswit
Cctk, Hold, pray, ara you a ireehoUcr,
Sr?— B^nriY. Yet/lam. [ChalleBged.]
CI. ^Arr. John Wolie. [CbaUeaf cd.]
CL ^'Arr. Josepb Wolfe. (Ha did not
appear, and was said to be no freetiolder.]
CLi^Arr. WiUiam Smith.
Cook. Are >'ou a freeholder. Sir f
Smith. Yes, I am. [Challenged.]
CL of Art, £dw-ard Fen wick.
Cook, Are vou a freeholder, Sir T
^tnxick. Ves, Sir, I am.
Cook* 1 do not challenge him.
67. oj'Arr. Then swear Mr. Pcnwiok.
J [Which was done.]
ooper.
CooJT. Slay, Sir^Vay stay a little, where is
he?— C/. id^Arr, There he'is. Sir.
Cook, Which is the gentleman ? Areyeoa
fivehoMer in London, Sir ?— Hwipsr. Yes, Sir.
Cook. I challenge you.
Hooper, I thank you, Sir.
CL of'Arr. Nathaniel Long.
Cook, ArejouafreehoUer,8irf
Xsnjf. Yes, Sir.
Cook. I challenge hin aa being ane of sir
John Preind*s jury.
CLofArr, The court haa adjudged that no
cause of challenge; therefeiv I take no notice
of it, but as to a peremptory cballeage.
a. of'Arr. Richaid Chiswell.
Cook. Are you a freeholder in London, Sir ?
Ckit^iL Ves^Sir. [Cballaiged.]
CL ofArr. John Child.
Cook. Hold, pray, a moment ; I have not
crossed these last in my psper, but I challenge
this BMi Si being oua of sir J<4m Pleiad's
jurv.
Ur. BMker. Yoa have had that answered
over and ewer again, as no obpectien ; it is no-
thing but a peremptory chsllengu.
CL ^'Arr. WiUiam Walker.
Walker. I was one of sir John FivJud*s jury.
Cook. I chalifuge him for the same rsaaab.
Att. Gen. Bui that is nn reason at alL
Cook. Then I challenge him.
CL Pf^^p^. John Wills.
Cook. Sir. are \ou a freeholder?
1IV//5. Yes, S'r. I !ini. [Challenge.!.)
CLvfArr, John llibbeit.
Cooi. Whirh is h«« Sirf
C/. or' Arr. Ho siaiHk upea your left hand :
the man in the black peruki*.
CV*»fr. Are \ oil w trcelitiMer. Sir ;*
JiM>€tt. \\*s. I am.Sr. [t Ualleiig«>d.l
C4. of' Arr 1 >anii"l \l ra v .
l'!ivJb. May. Nk. aw you Mr. \lra\?
U'nijr. Yes, Sir, my lis me w >l ray.
i 4V^-. Ate YOU a frvehokkr ui ld«ad\^a. Sir *
irr,:^. Y.V. Sir,
i\x*v. I chalhmgv y\iH. •
1t''>ar« I Ihauk y«m Hir«
CL^Arr. J%ihnlNMN.
VoJt. Whi«ihialief
fH%i. I aw the msB. ^^
CLfArr* Johnl
Cook. I challenga him, as heii
John Freind's jury.
Mr. Baker. But yoa have hear
to be an ezceptico over and over.
Cook. I challenge him.
CL of Arr. Stephen BkckwelL
Cook. Are yon a freeheUer, Sir
BlackmelL Yes, I am. [ChaM
CL fArr. TVilUam Hatch.
Cooii Pray give me time to :
pray, who is this man yen now cs
a. of Arr. WiUiam Hatch.
Cook. Sir, are you a freeholder!
Hatch. Yes, I am. [Ghalleng
CL of Arr. Henij Beadle.
Cook. Are you a mefaolder. Sir
Beodit, Yes I «»•
Cook. I do not ezo^t against I
sworn.]
CL ^At. John Stredwick.
StredMick. My k»rd, as 1 appp
no freeholder.
L. C. J. IMy. Why do you a|
Stredwick. It is my wifeVi esta
CL of'Ar. Then your wife has ;
seems.— iSfreiartcA-. Y'es^shehas.
L. C. J. Trefy. That is fteehc
lur you liave an estate for your wii
Mr. Bakor, And after that too :
given over to any body else, ami
give it from him.
Cook. Sir, are you a freeholdei
or no?
Strtdvick. I apprehend. Sir, I 8
Mr. Baiter. He says he has an
wife*s life.
CL of'Ar. Then be is a freehokj
you say to him ?
' Cooi. Are you posiiire yeu are
in London, upon your word ?
Stredrick. 1 tfiink nut.
Mr. Buker, Why, your wife's es
for your lite.
Cock. My Lord Chief Justice, i
ship pleases, here is a man that sa,
he thinks he is no freehoMer ; I '
lordship's judgment, whether he
hohler or not ?
L. C. J. JiYn-, Why, kt him j
if he make a doubt uf vL
:^:rrdrh:k. I am not possessed
mjksrlf.
1.. C J. Trrfv. Bu: is not y^our
heiitrix T
.^'•rix.ci. Y'cs, my lord, she
L. t\ J. TnrS. Tlien you are
fitvhoUl in her riiiht ; and, Mr.
«mn counsel %i iH leU vou, and satis
that » a tWehelJ su^em for this
Mr. x^c^. His wile's faikcrsci
her and h«r heir«.
U C. J. Xreist. No fBertial^ it if
fwehoM ii the wile be Sviay,
Mr. Bb&ir, Ye«« she ia.
aif^KWluSaPkaei.
$ir]
Jhf High Tttasm.
(Mt* 1 ehalttfife btm, is being one of sir
Ma Fiiind^ii j«ry*— Frinctf. I Itiank you, 8ir*
C/' *f Mr* John Simmons.
JUU 0«ii* We chftllencfe him for th« king.
a. fAr. Biobert White,
Oew«- Aw y©tt a freeholder, -Sir ?
rililir. Yet, I Uiink so.
Ca»4. Pnjr tell me whether yoti ar«, or not?
R'Ailr. lolevfi I think so, Sir [Chftlleng^d.]
£L^ Ar. £ilwBrd Brewster.
Coof* WkereisMr. Brewster? Are you a
N^older, Sift id London ?
Btmtier. Yea. Sir.
CsoJt. I chmUengc Kim. Pray, Sir. I destre
likao«r How tnatiy I have challeiig|>ed f
Mr. Baker, Yoii have challenged 33,
C^k. How many besides those thai are of
lir Jtibn Freiad'& ju^ ?
Mr, B&kfr. You hare but tvro more to cbal-
MB^e^ oir.
9er)* JhrrmlL I thougtit you bad heard the
QipiBMaof the court, Mr. Cook, thai it will not
boM as a esase of challenge thai be was of sir
ioba FVeiniPa jury ; therefore thoie are all
ttinoug the perernptory chaMenges,
I ye« can chaflen^e but two more in all.
. C J. Trtby. Not without cause, hut as
jm^nre as vou can have good cause against,
^Ct^fAr. JaUu Reynolds.
CWf. 1 except Bot against htm, [Was
p^wii- J
CI ^Ar, Joseph Brookbauk.
C«l. f have nothing to say to hiait [He
fiitworii,]
CI 9fAr, Adara Bellamy*
Mdhmy. Mv lord, I am no freeholder.
L. C. JT Treht;. U hy, what estate hare yon ?
Mr. Baker, He has estate enough, i know,
fcrnkic.
Btiimw, I bare only a lease.
L e X Tt^by. A lease for years f
BtUmnV' Yes, my lord,
mfkr, David Grill
[ V^ia^ I am no freeholder, niy lord*
fAr, Willinm Rawlins.
^_ 1 accept of him, [He was sworn.]
^Ar, Samuel RoycroiV,
Are TOu a freeholder, Sir?
%frf^. Yes, Sir. [Challenged]
Ci, if At, Thomas Parker.
Coo£ How many have 1 to challenge, do
p««y?
Q*^ Ar, But one, Sir; What say you to
fe Arkerf
^Smk. I do not except against him. [Re
^ Ar. James Robinson.
I HaTe Qotbiug to say to him. [^e
Joseph More wood. [Challenged.]
Ifrr. Yo« have challenged all your
b%«r DOW.
- ^ At. My lord, we have gone t ♦rou^jh
paooifl, we must now call Uie delimiters
lin. Thomas Clark.-— C/or^. Here.
fir B. Shamtr* Wm be here wheo be was
I OfCf }
A. D. 1696. [SI«
AU, Gen, That is nothing, be is here now.
Sir B. ShoKcr. But if there be a default of
the jury, and the king's eonnsel hare chal--
lenged any one, they ought lo shew their
cause ; therefore we desire that they may shew
iheir cause why they chsUeoged Mr. Simnjons ?
* L. C. J. Trcby, The king hiis power to chal-
lenge without shewing cause till the pannel be
gone through ; but if there be a default of ju«
rors when the king challenges, the king^s coun*
sel must shew cause.*
8ir B, IShowcr. Here U a dafault of jurors,
my lord.
L, C. J. Trebjf^ N<»body is recorded aksp^
lutely a defaulter} if he c«me& in time enough
to he sworn.
a. qfAr. Swear Mr. Clark, [Which way
done.]
L. €. J. Trehy. When there is an apparenl
default of juroi-s, then they must shew iheit
cause : bul here his appearance^ it seem*, was
recoi-ded, and so he was no defaulter ; and yoa
might have challenged him for cause still.
Ct, of At, James Day.
Jyfy. My name is not James.
Serj. DttrnaiL Then you cannot swear bim t
here are three mistaken in their names.
L. C. J. Treby. That is in the copy iu your
brief, brother, it may be.
Serj. J^amaU, N0| my lord, the officers ad-
mit it.
iff e. Gen, My lord, we desire those gentle-
men, that say they are no freeholders, may b^
twom to that matter. [W hich was accord*
ingly done. And several of them that had
Blaj ed, did deny the liaving of any freehold
upon oath, and some were gone away.]
L. C. J. Trrby. Pray take care to estreat
the issues, and return greater issues the next
time.
Just. Rokeby. Truly, the court must pnl
some great penalty upon them for trifiiog with
the court in respect of their duty that they ow#
to the king acid country, in "regard of their
estates.
CI, of Ar. Pray let the officers be called who
summoned this jury, Mr. Sherilf. [Which wa»
tj_ nil !■
• See the Case of Home Tooke, a. d. 1794^
and of O'Connor and others, a. n. 1799*
Leach*s Hawkins's Pleas of the Crown, b. J,
c. 43, s. 5, and the authorities there cited. Tbtt
words of the Onlinatio de inquisitionibus (3S
Edw. 1.) are, ** Of inquests to be taken befori
any of the justices, and wherein our loni the
king is party, howsoever it be, it is agreed and
ordained by the king and all his council, that
from henceforth, notWTtJist^^n ding it be alledge^
by them that sue for the k^n^, that the jurors of
those inquests, or some of mem, be not indif-
ferent for the king, yet such inquests shall not
remain untakeu for ttat cause; but if they that
sue for the king will challenge any of those
jurors, they shaU assign of their challenge a
cause certain* and the truth of the same chal-
lenge shall be inquired of according to fb«
cQstom of the cout\**
819]
8 WILLIAM m.
done. And they examined concerning^ their
sunimonin(f those who made default, and the
issues of those, who were recorded as defaulters
were ordered to be estreated.]
Then the Court not hein$( able to proceed for
want of a Jury, Uipa' ordered another paonel
to be reatly against Wednesday next, to which
time, at seven in the morning, the court was by
proclamation adjourned.
Wednesday, May 13, 1696.
The Court Iwing met acconling to the ad •
journment, the panncl was called over, and the
d^an Iters recorded, and several excused for
absence upon sickness, and bein^r out of town
before the summons. Then Mr. Serjeant Dar-
iiaH desired, before the Jury was called, to
move something against the pannel ; and made
his motion thbs :
Seg. DamalL If yonr lordship pleases, I
have somewhat to oner to you before you gi>
upon this new pannel, and I confess I tiiink it
u my duty to the court, as well^ as to the pri-
soner, to state the case as it is, ' and submit it
upon the reason of law, and the authorities
that I shall offer, whether the procecd'mgs
upon this new pannel will not be erroneous ?
My lord, the question is, Whether, as this
c^ase is, the prisoner has had a copy of the
pannel of his jury by which he is to be tried,
acconling as the late law requires ? He had a
copy of the former pannel, and upon that
pannel nine were sworn, and their names all
••ntered upon record, and made parcel of the
record. Thererorc now the question is. Whe-
ther he can be tried upon a new panned ? We
are in a case that rarely happens ; and in a
case of life and death, i know your lordship
will be careful not to vary from the ancient
practice, or to make a new precedent, because
of the consequences. It must be agreed in
this case, that the old pannel upon which tiie
prisoner took his challenges, and of which
nine were sworn, is parcel of the record. Now,
my loi*d, to add a new pannel, upon which
twelve more shall be sworn, aud all this appear
upon record, and tho prisoner tried upon the
last pannel, will not this be error ? I oiler this
before the jury bu called and sworn, because
we desire to be fairly tried ; aud we design to
rest upon the fact in this case. If it should
appear. That he is tried upon a pannel that
is unduly made and returned, that will be of
evil consequence one way or other. And can
this be duly made, if another aopear upon
record before it ? And can any body say it is
quashed or abated ? Or can it be so i* 31 y lord,
in Stamford's Pleas of the Crown, p. 155, it is
said, ** If any of the pannel die after the return,
and before tlieir appearance, so that there ai-e
not enough left to make the jury, yet the
sannel shall not be quashed nor is it abated,
but it is cause to grant a tales." And cer-
tainly, my lord, it is a stronger caae, when by
reason of challengef, which the law givea the
priflOiMr liberty to maki^ that tit not taougfa
Trial of Peter Cook,
left, that there shall not be a new pi
that a Tales shall be granted ; for
pannel might be made, it cannot ap|
were challenged, or wlio were admitt
if your lonlship pleases to consider, I
tion of the law in giving the prisonei
challenge, is, that he may have an i
jury ; but that would be prevented I;
practice as this ; for when it has hi
vered upon the old pannel whom th<
chose, and whom he challenged upoi
pannel, the persons challenged m;
first, and those that were chosen
omitted, or so postponed, that none
whom he thouglit equal to try him,
upon the jury.* And truly, my Ion
rightly informed, that is the case
new pannel ; some of those that
mitteu and sworn are lefl out, am
them, 1 think, are put last in the pan
he thought equal men to try him, an
whom he challenged peremptorily ai
men in the pannel. This, my lo
case before you ; and if this be adi
use and end of challcnj^es, which are
and favour of life, woiild be defeated,
authorities in this case, besides the i
ground of the law, many cannot be
because it is a fact that rarely happi
none of the ancient practisers evei
but I find that a Tales ought to be
so it is said in several liooks, as in
155, 156. whenever upon the princi
all the jury does not appear, or s<
them do not, that there arc not enoi
make a jury, which is our very cas
such case the pannel shall not be q
abated, but a Tales granted ; so i& 1
there the question was, Wht'ther th
be a greater number returned upon
than were in the principal pannel ?
the difl'erence was insisted upon, ar
That where it is between paity
where lifie is nut concerned, it shal
where life is concerned, and the pi
power to challenge 35 peremptorily
judge may aviura as many upon tli<
he pleases, that there may beenougb
after the challenges ; so that if this
be not abated, and could not be qu
a Tales might be granted to coni
number, I conceive the prisoner
tried upon this new pannel, but it w
ucous : and 1 humbly submit to yoi
whether you will proceed upon it.
8ir B, Sfiou^er, If your lordwhip
spare me a word of the same side,
mission. We think there ought to
an Habeas Corpora, with a Tales, s
been before swoni being to be p
jury now, and that is tlie proper wi
'^ In the Case of Perry and ail
1793, in this Collection, it was dci
whei« a special jury is onlered» th
cial jury struck and reduced teonl
must try the issut jointd btHrltlf
4
for High Treason.
1kifriiM€f 10 hk trittl iothitciue ; the king's
1 tfsaunot expect we shoo Id prwlace tnanT
for I believe thi^ i-^ the n^coniJ ul"
knt4 that ever liapi^enrd^ at least within
ONIDary, th»t R U-i^i tn treason ivas put (iJT
* JW© il«4^u Jiir&torum/ ihoufarh I have a pre-
«M6fit th«t t thttik i» exprPBs iti th« rmBe\
hm we imist, in the tii^t pi ice, Thai a Tal««i
dMi lie ftt cofntnon-law in the case of lifn ;
ani so the boi^k that Mr. Serjeant ctte«l in
SUntlbnl U express ; and then we say, that
tbitliiwer which we expert, that we are now
Mire justices of grao1«l« livery, is nolsutfi-
ckit, becaitae the jiKtices «t gaol- <leh very ^
gh. they do not usually awartl procesii hy
\ of writ, but Wfore r heir con[iing^» tliey
nd the sheriff to have his county ready
» and 80 in tact it is a parol pref vpt ; yet
9thtm it is returned, then it is entered upon
either * Prsceptuoi evi Vice Comiti
*faod ireoire faceret;* or, * Ideo veniat Ju-
*nila;* aud the jury are entered upon record :
Ss that take it to be before Justices of gaol-
Mifery^ yet the sheriff havincr rcturneil a
in
yoar eyes, in obedience to yom* coro-
Mtmel
atniFe
H, and that being upon the file, as appears
r
!, and that copy of the }>anne1 being deli
to us two days before Saturday lost, we
luibly fiuhuitt it to your lordships whether by
imsaof the common- taw, and of the late act
«f pariiament, we ou^ht not to be tried by that
^tttsel : weiosist upon it, that the act intends,
lad axpreaslv designed^ that not only the pri-
Utter ahoulif have a copy of the pannel that
4lieiiicriflr relumed at atiy time after, but that
WilMitld be tried by the panuel that wa bad a
espy of at firnl ; for it is not said a copy ivties
fmttm the court shsll think fit to awaril a
|not|Mfor a new pan net, but the words of the
•eiirc^ a copy of the jury duly returned bv
tWahertflT; now this we had, and your 1 orcT-
ibjp koows it is DOt a returned ponoel idl it
beta court, and then it becomes part of the re-
Conl: my lord, 1 do agree, tbejuitices in some
iMea bare quashed aiid set asitle punnel!i^ and
I aod ordered new ones ; and I confei>s
wm» an e^ctraordioary case in the titue of
dHUtlea the second^ which was upon the
IniOt against Whitebread, whi^re, after
iW)tiry chai^fed, and evidence gi re n, the jury
Via disobarf ed, and a new pannel made the
upon which Mr. Whitebiead^
corniced; how just or reguUr
T will Dd insist upon itow, but 1 am
Mm thtr^ were |fPeat complaints of that prac-
tef ^d few preeedaots can be shewn of the
Jilto; but be«>ides, the parties ihemvelves waved
too objeetiao being takett against it;
wo iosial upon it in this case, that this
upou record, is part of the record, and so
to Ibe court: if tiie record indeed
to be inaile up upon a Writ of Error,
peritapa it would be no Error, because it may
« See in Ibis Collection^ tbeCaaa of White-
Ivfad, fol 7, pp 79. 120. dll. And the Note
a»v«Lr» |U497*
\0U XII J.
be they wouhi leave if ool ; but here itnppears
tbeie was a pannel of record before yuu, ntul
this must cither be quashed, or altered^ or coo-'
tinued on by prooei^s ; you have power to
quiL«ih ill if It he unduly returned by the ^he-
riff. If there be any evil practices for pro-
curing the pannel^ eiiilier by the ^vrosecutor or
tfoe prisotier ; if there be no lreebuldcre» re-
turned, or the same Impprn in any other re-
fipect not tn be legally d««ne according to ihe
command or precept of the court ; but becauj^e
there is a default of .<ippea ranee of jurors, no
panuel was ever quajshed upon that uccount>
Then say we, if it be nut quashed, this paunei
must continue ; for, what shall become of it ^
Why should it not continiie ? It is not witbia
the act of parliament that gives the justices
power to make a new pannel, as in the case of
a grand jury when they ^^ guilty of con-
eealments, or refuse to tind bilb upon great
evidence, but we have no such caae betbro
yoo« nor do I know any such rule as can reacb
ttib I BO that, we take it, there is no diflvreneo
between this case, as before justices of gaol*
delivery, and other justices; that process does
lie against the jury ibat does not appear even
io treason and felony, there is no dispute ; and
it is very properly so, if it be before commis-
sinners o( Oyer and Terminer ; first, a Venire
Faf^ias, and than upon default, a Habeas Cor-
pora, that b tlie proper way; then take it
before justices of gaol-delivery, there it is en-
teretl upon record, < Praeceptum est Vtce Co-
* miti,' Sec. and here is a pannel returned by
virtue of this precept, atid some of the jury tlo
not appear, and so there ace not enough to try
the prisoner after a great many sworn aud
challeug^cd, and this entered upon recorit
WhatsTiall become of that patmel, it cauii^
be quashed nor aliated ? My lord, there ia
case that does warrant that opinion of a Tales
in a case of felony ; and if there may be a
Tales, then tbere may be a Habeas Corpora,
and there aj-e directions how the jurors shall
be sworn again, upon their appearance on tlie
Habeas Corpora, and that is W barton's case in
Yelverton S3.
Juit Powell^ jun. Do not dispute thai ; it ts
plain f tliat a Tales does lie in felony, upon
a commission of Oyer and Terminer ; but eaci
you shew me, sir Bartholomew, any where
tfiat upou a commission uf gaol-delivery a Tales
does lie f
Sir B. Shifwer. ISir, I can only shew the rea-
son of the law, and 1 cannot find that does coo*
tradict what we now contend for.
. Ju9i,P0welL I tell you, sir Bartholomew,
there is no Tales but with a Habeas Corpora
to bring in tbe first jurors, and lliat cannot be
upon a parol precept on a commission of Oyer
and Terminer, there goes a Venire Facias, which
ia a writ upon which the Habeas Corpora may
be grounded, but theie is no Venire Facias upon
a oommission of gaol- delivery*
Sir B. Sh<mer. Why should there not be m
precept in nature of an Habeas Corpora for a
jury tcturoed, on a precept as well as on a wiit f
Y
323] S WILLIAM UL
Just. Pore//. No, it uever was done; the
commission of gaol-delivery is a general com-
mission that d<^ authorize the ilicriff' to im-
pannel, and hare a jury read v at the day ap •
pointed fur the delivery of tne gaol to try the
prisoners ; it dolh import in itself a g^eueral
precept for thai purpose, before issue joined,
which the sheriff cannot do in the case of a
commission of Oyer and Terminer, but must
ha?e a writ of Venu« Facias, atler issue joined.
Sol, Gen, (Sir John Hawles.) 1u all cases
that they cite, there is a writ of Venire Facias,
upon which the after- process, by writ, may be
grounded ; but here is no ibundation for any
future process by writ, because it is only by
parol precept.
An, Gen, Sure these gentlemen dou\ think
what they say ; the paniicl is not part of the
record, and there is no record of it ; nothing but
the clerk's entry in a paper, or note, fur bis own
memorandum.
Just. Rokeby. brother Damall, have you
any book that says, justices of gaol- delivery
must awani a talcs U|K)n default of the jurors*?
Serj. DtirnaU, No, my lord, I cannot say so.
L. C. J. I'rehi^, Suppose all the jury had
been challenged, or died.
Just. FoatlL Hiere could be no quashing of
it, but it would fall of itself, for want of a jury.
Just Rokeby, If, according to your doctrine,
we must keeii to the first pannel, the conse-
quence would be, there wouki be no trial at all.
Sir B, Shower, Stamford makes no difference
that I can see.
Att» Gen, But these gentlemen have been
told the difference upon whicli this matter is
grounded ; a Tales cannot be without a Hal>eas
orpora, and a Habeas Corpora cannot l»e
without a Venire Facias ; but a commission of
Caol-delivery cannot award a Venire Facias,
because that is not to be awarded till issue
joined.
Baron PouU. The rrtiirn of thiis pannel be-
fore justices of gaol •delivery, is an act of the
aherifl*, by virtue oi' tiio commission, and nn-
thing apjiears of re«'ord till the jury are sworn.
Just. Rokthy. They object that it is upon
record.
L. C. J. Trcly. By tlie record, they mean
the clerk's note.
Att. Gen, If you please to look upon the
indictment, there is no entry at all, and that is
all the record hcfure you.
Just. PoneU. Does it appear upon record,
that nine were swoni ?
Mr. Baker. No, there is nothing upon the
record.
CI, ttfAr, It does not appear till the record
is made up, and nothing is entered till Vi are
sworn.
Serj. Darnall, There will be a great incon-
venience, if a pannel may be changed at any
time.
Just. Powell, This is a case that never hap-
pened before, and may be never may again.
Sir B, Shower, The law will hold the same,
in case it docs appear upon record, w well as
Trial of Peter Cook,
where it does not : but we tay, a punc
ed in court is a record.
Just. Powell, No, it will not; liecau
a jury does appear, and the twelve ar
then it lieeomes parcel of the recoi
therefore Whitebread's case was quite
case, and was indeed held to be an extra
case ; but that comes not up to us, fo
full jury was sworn, and evidence give
Serj. Datnall, It may be the same
not be returned.
Just. Porccll. But if you have a coj
jury, you are ut no mischief.
Kerj. Durnall. Some that were in tl
pannel arc* quite left out.
Sher. Buckingham, There arc none
but what were not freeholderB, that I
Baron Poais. He says the fiict is
as you have alle<lged it.
hilier. Buckingham, And Mr. Serjei
nail has been pleawd to reflect upon
we had packed this iury, by altering t
of the names, which, my lord, we d
deny, and we only let\ out those that
freeholders.
Baron Powis, The sheriff says he
postponed any of them, and only lef^
that were not freeholders.
Serj. Darrall, If the law were as ]
us as the fact in that case, we shoul
very good case of it.
^hcT. Buckingham. Mr. Serjeant
both the pannels here ; they may bee
Serj. Varna It. I said no harm, M
nor meant any reflection upon you.
Slier. Buckinfiham. Mr. Serjeant w:
to sa}', the excepted men were put in
and those that were sworn were put I
L. C. J. Trtby, There is nothing
the ohjection.
Just. Powell. Really because it w:
as ii reflection, it will Le proper for i
to clear it.
Sher. Buckingham, My lord, the
give to it, iM, That particularly one
sworn Ia.st time, is now at the very I
of tlie pannel ; and, in general, they )
promiscuously, without any design o:
the \eii9t. He says we have lefi out
served before : I solemnly protest, I
one man returned upon the last pan
left out, unless it appeared that he u
holder ; and we had no reason to pnl
that we know could not serve.
Seri. Darnall, That cannot appi
that they are not freehoklers,
Just, liokehy. But it appears to
thei-etore he did well to leave them oi
Sher. Buckingham, Whati say, I
to give upon my oath.
Serj. Durnall, I say there is oi
Beadle left out, and he vtaa one
sworn.
Sher. Buckingham, I will not say
ticular man ; I protest thai I dkl nol
was letl out ; if it b« so, it was bj
for I know Mr. Beadle f ery well, i
3J5]
Jbr High Treason.
A. D. 1696.
[3S6
bim to be an honest man, and very well aflected
til the gnvernment as any man.
Serj. Darnall. We desire to be tried by men
that are honest and well affected in the go -
verament.
Sher. Buciungkam, There you hare orthem.
Sir.
Sen. Dariuil/. Those that were sworn are put
bit of all, and there is not abore one of them
tbtt is within possibility of coming on again.
Sher. Buckingham, It will appear by Mr.
Cook's challenges, and the other pannel, that
tbey stood late before; and Thomas Clark,
who was sworn the last time, stands tenth
mm upon the pannel.
Serj. DamalL He was sworn after we had
Sooe through the pannel, and took all our
challenges^ not appearing at first.
Sber. Buckingham, I tell you, tbey stand for
the most part as they did, for ought I know.
Seq. UamaU, There is but one in threescore
aad ten, that can be sworn now, of them that
were sworn before ; and there were nine of
Ihtm then sworn.
Att. Gen. That is a mistake. Indeed there
are a great many added to the pannel, because
there was a defect the last time, and therefore
DOW they may perhaps stand later.
Seq. DamalL 1 do not speak to reflect upon
tbesberiffii: I go according to my instmc-
tiODS.
Just P&weil, if it had been so, it had been
well enough ; for yon must be contented, thn
court musl tike it as the sheriff returns it, and
yoo have a copy of it.
Att. Gen. Here are four of them that ^rere
sworn before, that stood above sixty off in the
oUjpannel.
Sher. Buckingham. The first man that was
sworn, Mr. 8herbrook, stands within the first
twdve now, as well as before.
Jost. Pcwell. If they had been all new,
there had been nothing in that.
JnsL Rokebv. Truly, I cannot see hut that
Ihe sheriff hatn done like an equal, just, fair,
ttd honest officer.
Att, Gen, Th«y may challenge as they will.
'LC. J. Tre6y.You are to consider, that this
ha{fpeiis because you run out as far as yonr nt-
■oil number, that time vou challenged 35
peremptorily, and divers others for cause, so as
Mt lo leave enough for a jury ; and from that
time arose a necessity of increasing the num-
ber of the pannel.
Seij. DamalL It was our client that chal-
lenged them, we do not advise him whom to
chdienge.
Just. Rokeby. But you mus^t take the con-
Hqoehce of it, which causes this addition to
the pannel.
L. C. J. Treby, What do ynu complain of ?
Tbey that are returned, are put in the same
wier u they were before ; they that were
sworn, were (for the most part) late in the
pnOel then, and so they are now. I do not
"Qd any thing done to the prejudice of the pri-
"Od any thing d<
Serj. DamalL If the christian names had not
been mistaken, there had l»een perhaps enough
to have l>een sworn.
L. C. J. Trelh/. That is a good ar^ment for
a new pannel, because the christian names
were mistaken before.
Just. Powell. It was bv defect of jurors, and
therefore there was an absolute necessity of a
new pannel.
L. C. J. Trebif. I am of the same opinion.
Wharton's case is well known : It was much
cited as to another point in Bushel's case. It
was a trial at the King's-bench bar at West-
minster by a jury of Kent, upon an indictment
of a mnnfer. And I think you say the case of
H. 7. was between party and party in appeal.
And I believe Stamford's discourse, in the pkct
cited, relates chiefly to appeals.
I shall not deny that a Tales may possibly
be upon an indictment before justices of OyPT
and Terminer; though it is not usual, nor d#
you shew, or our experienced clerks know any
such precedent. I agree, that in the men-
tioned cases a Tales was proper ; for in both
cases (viz. of Appeal and Indictment removed
into the King's- bench), the process for the
jury, was as it ought to be, by writs of Venire
Facias, &c. upon which a full jur^ not appear-
ing, there must be a Tales. But m proceeding
to trial before justices of Oyer and Terminer on
such indictment as is here, though I will not
say but they may proceed by writ of Venire
Facias : and the usage is, that after (and never
before) the prisoner hath pleaded not guilty,
there goes a precept to the sherifl, under tjie
seals of the said justices of Oyer and Terminer,
returnable at such da}*^ as the}' shall adjourn
to, for returning a jury to try it ; (as was
done lately, upon ailvice, in the Case ot Rook-
wood, Jkc.) and upon the return of that, if,
after challenges, there are not enough left to
make a jury, whether those* justices shall issue
a precept in nature of a Habeas Corpora, or
Destring»<i, with a Tales, or another preceut in
the same form ns before, and without taking
.notice of the former, is a question not in judg-
ment before us. For we are about proceeding
to a trinl on an indictment in this court of gaoH
delivery, (which is the court wherein generally
all capital crimes are tried, as well at this place
as at the assizes) and, I think, here cannot be
a Tales ; I am sure it is not necessary. For,
first, Here is never any writ of Venire Facias,
'^f. Secondly, Nor ever a precept for return-
iMgajuryto try a particular issue: but this
cuiu-t taCes the'pannels of juries returned by
the s'.icnlf, wiiljout any particular precept to
him.
The course (»f proceeding by virtueof a com-
mission uf gaol-delivery, which is the law in
this case, is this, viz. There is, aiifeoedent to
th(! coming of the justices, a bitneral command-
m«-nt or precept inai'o, in writing to theslieriiT
bv the paid justice?:, to rvturn juries against
tfceir comings, for the tryini^f '.fall and srogular
prisoners in their paol, whether they have
pleaded before, or ihall after. And tor that
I
I
I
»WltLIAM m.
|iiirDO0c it re<)uires the sberifT to summon, out
of Jl parts oi liis country whence the |>risoneWi
oocne, a ^'tat miTiibcr of tV^ehoItlers not a^kin
to the priioiieni, ta be at the time mid pUye ap-
^obtrd for biiliJmi; the court. The sheriff, hy
rirtue af this g^cneral previous precept, suin-
moiifcth riinnj for jurors, and prepares divers
screm] pan Dels of their natne«, either at first,
or afiervvanlsj as appears necessary, and re-
turoeili iint\ dehvert^h io one or more of these
jMUUids, tram titno to time, as the courl does
need, and enW for any : this, we kaovv, in fact,
h rreqi)«mliy d^ne wheie the ae^bions of gaol-
deliverr huta aevenl days, and there is occa-
Bjon* Tboug'h, lu siippositMHi of law, all these
oannels are returneilj and the triali* thereupon
liad the farKt day of the sessions -, and, to 1»vf ,
it is intLndcJ to' be but ihat oue day only. The
return of this precept la thus, rii. * ^xecoiu)
* iitiua Piiecepti patct in qiiibu^dam Paneliis
* huic prteceuio annexi^,' and the panoels are
ftuauxud. and there are ofku filed here divers
paoivek upon the same (reneml precept,
til 00 ^h ^omvUmea but one. ThcKe imoncU are
ihu^ delivered into court, and a jury taken out
of them as 4ht^re is occasion, oaly upon a Parol
Ai«'ard, ihat i^, barely the court's calliog for the
^Atuey >viihotil writ or prcoept in writip^*'^ or
giving any day for the ooing it* For this pr«>-
^^ediugis h/mtediate, for ibespeedy delifery of
lirtsotMfrs; and tlie entry^ after seitiug forth
that the phioner beiafr* arraigned pleads not
Ipoihy, i9» * Ideo immedtaio veniat iwle Jurata/
or * fiat inde Jurata/ Ami lliis court's being
instituted for the spee«1y deliver^'^ of prisoners,
W)d warnings beiog given loog before, of their
coming, are the causes why it has been always
hdd wittiout daubt^ that justioea of ifaoNeii*
very inigiit inquire and try tlie same day.
If it fall out, that by reason of defaults,
deaths, or cliaUeoge?, there <:annol be a full
jury had out uf a pannel, (ns here there ^vanted
three) which is an accident that the court can-
not kn'»w, till they haire gone through the pan^
oel ; I think in this case, that pannel goes for
nothing, is utterly tost and void, and to be ca.4t
•way i»r cancelled : for it does not answer the
award of the court, which was to have a jury
to try the prisoner presently. It is meant an
efiectual pannel that shuum afford a full jury
ol* twelve unexceptionable men ; ami every
paoni'l that comes short in this, is to be laid
aside as a void thing ; and then the court tak^
and makes use of another immediately, which
may not be defxcient^ whereby the award is ob-
aerved, and the present servioe dispatched,
Ohjecti&n. It is objected, That I he old pan-
nel is (larcel of the record i» court, and, upon
that, nine were swuro, nnd their names are dll
entered upi>n record j and now to add a new
psoDCt, U]ion which iweKe shall be sworn and
try the prisoii^-r ; all ilim appearing upon re-
cord, it will he error.
An$9etr. Thi.4 Objection starnls upmi two
mwiftkfls, both aris*oM from not obNerving the
^liitrtthco^Mftwieu preccpu and paooeU, in a
court of Gaol -delivery and Ventre Ftottf, or
precepts and pannels in other couils.
1. It supposes that here wdl he two MOBili^
which will appear to relate to the trtlu of ihto
prisoner, Mr. Conk,
3. It supposes U^at both ibeM wUI
records, nr parcel of tbo record ici court.
[f either of these supp^ioliB tMnore to hm
misrtake, it will destroy the «l{|eotioii. 1
botli are mistakes.
1, Hire is not, nor will be, nay, thcrt
ought not to be any punnel purportiu't; to \m
retririied for the trying ^i hit. Cook, or waf
pBrticular prboner or prinoners. For the pre*
cepi in this case is (not like a Venipe FaniM^
which always reapects a partioolar isMM'ke*
tween parties tberehi oaniedi but) g«nenl« fo«
quiring the shenfTto retuiu juinrs eoOQ^ !»
try all the prisoners, not immicig any.
the relnrn, which k the ansvver ui it by a ^
ne) or pannets, is a& general ; the title of ow|d
pannel Untig *' Nomina juralor* ad triaodoA
pro domino rege,' and no more^ or * nooMM
joraiorum ad triandum inter ilom. Pi^ggta it
prisiOniir' ad harram/ without nntuing am of
the prisoners, and it were absurd if itwcuJme
other wee : for the precept ^(MA to tbe^
before the sessions, and bis retuni is
to be made ot the beginning of the
when it is not known who of the prtvuneri
be indicted ; or, if indicted, who will fieii
not guilty, or guilty, or a [HirdcMi, or «lfatr
plea.
When, for the trial of a .pttrticalar prinoMi
(or divers prisoners that are tliottght fit lo km
put iipon trial by the same juoy), a jury ia
about to be taken out of any pannel, the<
as he goes along, may take a note ui ^ ^
of the name of every one that is sworn ; nr bt
mvkj (and usually doth) write rur. on the
nannel, against the name of every one
but Ihb note or mark is no part ol* the
it is not €x instituiion€ kgit, it is but a
tary menriorandum for the hdp of bia ni«BH
If he could safely trust to the strength «lf
memory, he neeil not write at all ou ihiaotf
sioD ; I mean, not till a full jury i% f worn, i
try the prisoner. But then, indeed, the t
must (from bis notes or memory) write
name of all the twelve, entering ibem omlb*
record of the indictment, in this maimnr, ytti
just alter the * Ideo ioMne^liat^ veniat i
'rata coram prufatifi justic* ^. nctdtiiff, *
•juratores juratae illius, Sec, acih A. B. Ai
* dicunt. Sec* And it is by thisonly, that
names of tboAe that are ewom, isoroe i
record ; and it is this entry upon the
the indictment ak»ne, that is tne reoQ
shews who were jurors aworn, to try thn,
that, or other pri«ioner or prisoners*
So that if the okl pannel were filtit^
were a record, ss the |!riaoner's eeunati
•ttppfj«e^ yet it w<Krtd not thereby be made i
pear, that the said paaoel was relumedt
used for, or m order to tbe thalof ibii
tuner.
'X. The old pannel is not filed among tiM Ji*
;in40ji^
329}
for High Treatun.
»
of the court, nor ouglit to be. VVittfQ
I pannet docs not produce « jury» the
may and lue to throw it by «i a useless
Baty how jer they use ir, we cvnuot
low it to be » record. It was received de l^ne
ft is abortive and comes to nothing', Aod
ia not every thing that passeth in court in
lo a record, that comes to be so. A fri'
that is rejected, 13 not reoorded.
'nt or biU of Indictment, before it is
i, ia not a record : And if an ignoramus be
netunied upon m bill of indictment, it never can
ke m iv^rd ; and thereupon, the clerks do
■oumlimga Ihruw it away^ though sonietiines
ijaev ^"^^ '* -nd put it on the tile, mi\y taking
carv ; but it' they do forget to cross
il» yt; *. .. .- . . ^ j"€coriK
By ail this it is apparent how graat the di fie-
rence is between a precept and pan nets in tbta
muU >&d a Venire Facias and a pantiel re-
tnrned thereupon, which is ever issued a1\er
iMie joiotid, and doth always naention tlie par-
ikalar pnflies and matter it relates to^ and is a
Tvcsrd, ami a gmund for an If iibeas Corpora
With a Tales, to be returnable at a certain fa-
tore day. Buti in this case, tn this court, it iK
qjttte^thevwioie.
Hir B. Hk^imer, Tbpo, my lord, since there
iisnew paimet, we hope we stand in the same
upon I'm- art of jjerhameut, to take
IS la t ii«?nt before this jury
as we til Tjie other jury sworn,
«iiee ill that ia quite aet estde.
LC. J* Treby. Yetj ttu^y, I think th&t
in. Oen, But thflie gaoltefnen would have
illi0Wtll ta have given notice of their excep-
8ir B. Shower. My lord, 1 shall not staud
^^m^ao €9Bo«filion wliieh 1 think 1 might take
rword * Turmai^' in tlie indictment, which,
' it be truop^ of meUf or horsaa, or what
iti%doe»not Hppear ; but, I think, wc have
li exception to the chief overt-act laid in the
Adk^ment, and that, we preanme, il'my brief
kavigiit, will be sufficient to set aside this in*
dictmeiit i that Mr. Cook did agree with other
trsiiam to send Mr, Charnoc'ic into France to the
laid late king Janics, and kin<^ James is never
ttHMlDiMd before in all ilie iudictntent ; that is
ilMaifption that we have, tliat there is no
bit Iduiff «lam«e mentioned in the indictment
Itfti^lEia. if my copy be right , if it be other-
wiBfr, I suppose they will tiiid it : it is laid, That
Mr. Cook di<l agree tn send Cliartioclc as a
maiacnger into France, * Eidem mi per r^i
' JacotfO/ and no * Rex Jseohub' la nientioned
Nibre. Then there is another exception, and
that ia this: they come and say, That wheraaa
k a war with France, which is only in
ueut by way of recital or rehearsal
iry, *• Qoad cum jter magnum teuipus
bit M modo sit,' &c, Mr. Cook, the pre-
(knowings did compass and i murine the
i4l«Ath| and did ail he re to the said king's
wmtim flueb a day. Now, my lord, 1 do
ttektel lliif tm never be maintainetJ, for
A. D. 1696. [S90
that ' Gum quoddam bellum/ (Sec. being an
historical narrative, is ikfI positive enough:
for adhi*ring to tbe king^s enemies being one
of the treasons laid in the charge, there ought
to be a war at the time of the adbe^iion, and
of neoessity then that ought to be presented by
the jury ; for though your lordships can judi-
cially take notice of war or peace, yet you
cannot take notice of it at such a particular
time, and the reason is from the notion that is
in my lord Coke in his third Institutes, cap.
Treason ) That adhesioos to rebels is not ad-
hesion to the king's enemies, for a rchel is not
said to be an enemy ; but tt must be adhering^
to such an enemy, as between whom and the
king there was war at that time ; and ccoae^
queotly it ought to be more positively averred
in the inrlii^ment than it here is ; but as to the
overt-act of Mr. Cook^s consulting and agree^
ing to send Charnock over to the said late lun^
James, to give him notice of what was ap-m
upon between them, when king James is not
teamed betbre, that can never be got over, wHti
submisvioo.
Mr. Baker. Jt is a mistake of your oopy^
sir Barthobroew Shower.
Att, Gen* I liave looked intothe record, and
it is *" Jacobo secundo nuper regi,' not * dicto.'
8ir jB. Shower, Then, ^vith submission, my
lord, they cannot try us now, for we ought to
have a true copy of the indictment.
Mr. Baker* Upon daomnd. Btrt you oaver
demanded it*
Sir B, Sfumer, *Vea, it waa demaoded.
Mr. Baker. Who demanded it?
8ir B, Shower. Our solicitor Burleigh.
Mr» Baker, No, he did not ^ I gave it hSm
ofiiciouBly*
Ait, Utn, With submission, my lord, it u
no objection at all, tliet their cofjy t» wrong.
That should have been before tbe prisoner had
pleaded; for the words of the act are, That he
sliall have it so many days before, to enable
liim to pleuilp and he cannot be pat to plead un*
less he have a copy of the indictment so long
before ; and at Uook wood's trial it was said by
the court, it could not be alledged afWr plea
pleaded.
Mr, Burleigh. The copy was gif ea to m#
publicly in court.
SoL Gen. Why did not your solicitor coio*
pare it with the iudi«:iment?
Att, Gen, They might have compared it by
the clerks reading it to them , but they will not
admit the prisoner's solicitor to »ee the original,
beciiuse the act expressly says they shall not
have a copy of the witnesses names,
8ir B, Shower. The officer is 10 deliver a true
copy of the indictment,
Att. Gen. No : the parly is to demand it by
himself or bis agent, and then be is to have it ;
and if he be denied, he ought to apply himself
to the court, who will order I be delivery of it ;
but we stand upon it, that they cannot take
this exception now after they have pleaded, for
the intent of the copy is to enable him to plead.
L C. J. Trehy. Th^oupy^ bytheiclofpar-
SSI]
8 WILUAM m.
TrvdofPettrCoolt,
[332
liament, is to be delivertrd to the prisoner, his
attorney, agent, or solicitor, if they require
the same ; ajicl here it seems there ivas no re-
quiring- of it, hut it was voluntarily given ; ami
now \ on have lapsed your time of making tlie
exception of wanting a copy, by having pleaded
to the indictment, whereby you have in effect
admitted and declared, either that vou had a
true copy of it, or that you did not tliink fit to
require one ; for the use of the copy is to better
enable the prisoner to plead. But when you
did plead, you took upon yourself to be welt
able to plead without the help of a copy, which
you might have had upon the asking lor.
Sir S. Shower, Then, my lord, there is ano-
ther thing in the indictment, that in thb overt-
met there is a new time, and a new place,
and a new verb, and a new fact alledgeil, and
no nominative case : it is alledged. That Peter
Cook, at first, with others, did so and so : and
then the first of July to bring the treasons
aforesaid to effect* there et alibi 4rc. (which is
▼ery loose, for I know not whence the venue
must come) did truiterously with Cbarnock,
Freind, &c. consult to procure < Diversas Tur-
mas et Lemones, kc' to join with them in En-
gland, ana then it comes et uUeriia such a day,
year, and place, did traiterously ag^ree so and
■o, and not say who : Now this is neither by
express words, nor rule of grammar to be re-
fenred to the prisoner at the luir ; it does not say
* ipse idem Pctrus Cook ;' now, my lord, that
the king's counsel thought it necessary in every
overt-act is plain, because those words are put
in every other clause of the indictment, in those
clauses that go before, and those clauses that
come after ; then if they will take it, that this
clkuse must refer to the next antecedent, that
will not do, for the next precedent nominative
case is either Freind or Chamock : So that
this is without a nominative case, and the pre-
cedents in my lord Coke's entries 361, and all
the other books have the nominative case repeat-
ed, where there i$ a new time, and a new place,
and a newfai-t ailedi^ed: Now it nii^^hi be true,
that the prisoner at the bar might Ih; present, and
this same treason might he tliscoursed ofand agi-
tated, and there niifrht be a consult ahtiut this
business ; and yet it is not necessaiily implied
that he must consent and agree to send Char-
nock into France, upon which the great stress
of the indictment lies : therefore we say, these
words having no nominative case, the indict-
ment cannot tiold.
Att. Gen. 3Iy lord, as to this objection, it
will receive a very plain answer. Our indict-
ment begins and sets forth, that Peter Cook,
the prisoner nt the bar, did imagine and cum-
EBss the kingN death, and did adhere to the
ing's enemies, and these are the treasons :
and then it sets forth the overt act, that in ex-
ecution of the traiterous com passings, imagina-
tions, and adhesions aforesaid, * Ipse idem Pc-
trus Cook, together with sir William Parkyns,
Mr. Cbarnock, sir John Freind, and others,
did propose and contnlt to procure from the
Frencb king fbroet toiDTadt this land ; €t uU
terius, he and they did agree to lend Cbar-
nock to tiie late king Jatiies.
Just. Rokebjf. There is the fint naming of
James the second, late kinf ^of England^ and
there is no eidem Jacohot 1 promiaeyou.
L. C. J. Treby, Well, that mistake is over.
Prtiv go on, Mr. Attorney General.
Ati. Gen. Mv lord, as to this objection of ar
Bartholomew S»hower, be would have ipu Hem
Peirui rei»eated over again ; and he says, thM
we lay a distinct overt act with a diflmnt time
and place : now that is a mistake too ; it is aol
a different time and place, but the ssne tisH
and place ; and it mentions thai ' cnm R. Chw-
nock, J. Frvind, <!^c. et com aliis Preditoribai
conveniehat, consultabat, &c.' which be ism
may refer to sir John Freind or CbaraseK:
but if you look into the frame of the i
that can never be.
Just. Roktbjf. Petrus Cook is the
tive case that coverns all the verbs.
Att. Gen. And there is no other
case in all the indictments, but Petms Csil^
except it be in a parenthesis, and that saraillM
rule of grammar, if there were any tbhigiiil^
that it must refer to the last antecedent
Sir B. Shou-er. When it comes to the dHW
that he did procure horse and arms, tboellit.
nominative case is repeated.
L. C. J. Treby, It would not have madtil
worse, if they had made it so here ; bat Iht
question is, whether it be necessary ?
Su: £. Shower, Indictments ought to be |i^
cisely certain ; but this we say is not so.
Att. Gen, But hens is as much ceffsiiityii
to the person, as can be, that be did coasok
with such and such about such things ; aai
further, the same day did agree with UiewM
traitors to do so and so.
AusX. Pouell. Indictments, it is true, ooglil
to be plain and clear ; but I do not see but hen
is as much certainty as can he, that be did iMk
a day consult, and further, the same day dii
agree with the same persons.
Sir B. Shower, Who did agree, my lord?
Just. Pou'ili. He that did consult with tbm
before, and that is Peter Cook.
Atl. Gen. You would have had us to pot H
to every verb, 1 believe.
Sir B. Shuwer. In indictments no presomp-
tion ought to be usi>d, hut the faots ought to be
directly and |>o»itivcly alledged.
Just. Pouell. It is true, there should be ao
presumption ; and there is none here, for on--
tainly this is a plain usscrtiun of fact.
L. C. J. Trcby. Here are two tilings thatsit
set forth: First, That Petur Cook did oMCl
with sir John Freind, sir William l^irkyns, and
others, and then and there did consult wilb
them, and consent to procure an invasion, and
join an insurrection thereto. And secnndlyt,
further with the said traitors did agree to acH
tniarnuck into Franee. Now, what is thena*
niinative case to this agitxnicnt 1'* Is it air Jote
Freind, and sir William Parkyns? Thatisitt*
possible : for they could not be said propo^li
meet and consult witb themaelveiy vnrj iM
Jhr High Treason.
ith his own self and the rest. And
larober, if it bad referred to tbem,
re been ploni: bot here it is tin-
VBAvh] and the seote is do more
that then and there Mr. Cook did
such perKms, and did coosult with
i racb and such matters ; and fur-
Tee with them to do thos.
kowtr. The meaning is not to be
strained by inference or presumption,
It to be express and plain.
Trcby, Nay, yon cannot express it
INI may male a tautology of it, if
kmetr. The fwragraph is long, my
therefore requires the more care to
repetitions that are necessary.
IVeby. Yonr objection to this para-
bat it is too long ; bat repeating the
linative case to every verb would
neb longer.
{AdSMT. It cannot be understood to
T Ck>ok without presumption, which
lobe in an indictment,
n. And as to sir Bartholomew Show-
lifection, his copy is right too, and be
le place.
IkoKtr. You should have given me
answer.
n. Nay, you should have taken more
Id have made the objection.
Treby. Trul^, I think it is hardly
have made this better, if it had been
than it is.
tmalL My lord, we think we have a
of if, whicn we rely upon, and there-
somuch insist upon these exceptions ;
I duly to our client, we mention that
think is necessary, and we submit to
hip.
Ar. Set PMer Cook to the bar.
as done.) You, the prisoner at the
e good men which you shall hear
d personally appear, are to pass be-
r sovereign lord the kin|[ and you,
of your life and death ; if therefore
I challenge them, or any- of them,
: is to spcsk unto them as they come
9k to be sworn, aid before they be
Call nr John Bweetapple.
iSmeelapple. Here.
Ify lord chief justice, if your lord^iip
I. jfVel^. Pray, Sir, speak out, that
lear what yon aay : and let the Cryer
tdamatioo for sdence. (Which was
Ny U>nl, before the jury is called, I
Ml, that if any of the jury have said
Ml i am guilty, or they will find me
' 1 shaH sofler, or be handed, or the
•re not fit or proper men to be of the
henhifrtinBto Mr. Raikes in the Case
A. D. 1096. [3S4
L. C. J. Treby. Yoa say right. Sir, it is a
good cause of challenge.
Just. Rokeby, That will be a sufficient cause,
if when they come to the book, you object that,
and be reaiiy to prove it.
Cook. Which IS sir John SweeUpple P (He
was shewn to him.)
C/. ofAr. There he is.
Cook. I challenge him.
CI. o/Ar. William Walker.
Cook. Sir, have yon said any such thii^,
tbatyou believe me guilty ? — Walker. No, Sir.
Mr. Baker, My lord, he is asking of the
juryman the question.
Just. Rokeiy. That is a fact the prisoner
should prove upon him.
Alt. Geti. My lord, he must not ask the jury
that question, whether they have declared be*
fore, that they will find him guilty ; that is to
make them guilty of a misdemeanor.
Serj. DamalL Is it any misdemeanor fbr
roe to say, I thiuk or believe such a man is
guilty ?
Att.Gen. If he be summoned to be of a jury,
and declare his opinion before- hand, it is a mis-
demeanor.
Serj. Darnall. But suppose it be before he
was summoned ?
Att. Gen, If you make any such objectioD,
you must prove it, and not out of the juryman's
own mouth.
Serj. Darnall. I think any man, my lord,
that comes to serve upon the jiuy, may be
asked any question that does not make him
guilty of any offence or crime, or liable to any
punishment : Now if any of these gentlemen
that are returned upon tliis pannel, uefore the
summons have declared their opinion tliat the
prisoner is guilty, or ought to suffer ; with
submission, Uie prisoner may abk such a ques-
tion, whether he have said so, yea or no f
Just. Powtli. lie cannot upon a Voyer Dire
be asked any such question.
Just. Rokebv. It is not denied to be a mate-
rial objection, but it must be made out by proof.
L. C.J. Treby. You put it too large, bro-
ther Darnall; you may ask upon a Voyer
Dire, whether he have any intf'rest in tlie
cause ; nor shall we deny you liberty to ask
whether he be fitly qualihed, acconling to law,
by having a freehold of sufficient value ; but
that you can ask a juror or a witness every
question that will not make him criminous, that
is too large : men have been asked, whether
they have been convicted and pardoned for fe-
lony, or whether they lia\e been whipped for
petty larceny : but they have not been obliged
to answer ; for, though 'their auswer in the af-
finnative will not make theui criminal, or i
len at Maidstone, a. d. 1798, in this Collection.
See too. Leach's Hawkins's Pleas of theCrowD,
b. S, c 43, s. 28 ; and the objection to the earl
Mareschal, earl of Dumfries, kird Blantyre
and lord Johnstoun, vol. 3, np. 690, 691 of this
Collection . See too Peake^s Law of Evidence,
c. 3. 8. 2. art Witnesses disoreditiiig them.
S89J
SWULIAM m.
jact them to puvishcneoty ^et ibey are matim
of infainv ; and if it be an iB&moua thiiHTrlbat
H enoufi^ to yreserve & roan froia beio^ bound
to answer. A pardoned man is not guiky , iiM
crime is purged ; but merely for tha re|Mpaacb
of it, it sball not be put upon him lo anawer a
question wbereon he will be forced to ibmwcar
or disgrace himself. So persona hare been ex-
cused finom answering whether they have been
committed to Bridewell as pilferers or ragraats,
or to Newgate for clipping or coining, &c. yet
to be suspected or committed is only a mistor-
lane and shame, no crime. Tlie like has been
observed in other cases of odious and infamous
matters which were not crimes indictable.'*
But to keep to our case, it is true, a juror may
be challeoged being an alien, or being a villain ;
but where the matter apparently carries crime
or shame, it should be proved ; the outlawry
should be proved, and so should the being a
vilhun. Yet that is no crime, though it be an
ignominy.
Serj. Darnall. But, my lord, I take this to
he no manner of infamy at all ; theie is nothing
of crime, nor nothing of reproach, hot only a
declaring of a man's opinion.
L. C. J. TYeby. Truly, i think otherwise ;
I take it to be at least a scandalous misbeha-
viour, and deservedly ill-spoken of, for any
man to prejudge, especially in such a heinous
matter. I think it is a very shameful disco-
very of a roan's weakness and rashness, if not
malice, to judge before he hears the cause, and
before the party that is accused could be tried.
But it seems, by what the prisoner says, that
he would ask all the jurors, whether they have
not said that he was tfuilty, or that they would
find him guilty, or that be should be *hanged,
or the like : which (presuming liim inuocent)
is to asL, wbetiier they have not defamed anil
slaiidereti him in the highest di-gree ; and to
forcu tlieiii to discover that they havo a mortal
hatred to hiui, and come with a malicious reso-
lution to con\irt him : whicli, atimittiug tbey
are not punishable by our luw, yet are things
so detestably wicked* and so scandalous, as are
not fit to be required to be disclosed by and
against themselves.
Serj. DaruaiL Pray, my lord, what is more
common than for a man to say, before he is
summoned to be u|ion a jury, when he hears a
fact reported concemin<r such a one, to say, 1
beUeve he is guilty, or, 1 am of o|iinion he is,
and I am sure he will be hanged ? and yet there
is no crime in this.
L. C. J. Trtby. Truly, brother Darnall, I
know not how you may approvenf such a man,
but ril assture you I do not. i take the ques-
tion not to be concerning a man's discoursing
suppositively ; afi, if u|ion hearing news, or a
report of clear evidence, a man should say.
Supposing this to be true, such a man is guilty,
anri 1 shoubl find him so if I were of his jury.
This mii^ht not be sufficient to set aside a juror :
* As to this matter, see Peake*8 Law of Evi-
dence, chap. 3, s. t.
Tnal of Pder Cook,
For this has been a general
the subjects upon oooaskm of this oonar
and U imports, that if evidence alioiiU
true and olrar, he wouM ecoaii him.
he is, as he should be, indifttenL Bi
man qualified fur a juror, affirm positive
sueh a prisoner is guiliy, and that he w
him so, whatever evideooe or proef beg
made to the contrary ; 1 think Ikat ma
ousdemeaBor punishable aa ao owaiuff s
coiuraging of falshood, peijury, ami mj
and a contempt and scandal to the jns
the kiagdom : though I hope and bdie
no man hath so demeaned himself.
Just. Powell. In a civil case it won
good cause of challenge. If a man haw
nis opinion about the right one wayoi
may you not upon a Voyer Dire ask hia
ther he hath given his opmion one i
other? I believe it may be aaked in
cause, because he may have be«i a n
but if you make it criminal, it camwt be
because a man is not bound to accuse bi
now the difference lies in the nature
cause ; it ia not criminal in a civil cai
roan to say he was an arbitrator in such
and, upon what appeared before him, 1
of such an opinion.
Att, Gen. But, my lord, it is a differei
to give an opinion about the right b
mirty and perty, where a num haa been
nitrator and ao in the nature of a jud|
where a man is to go upoe a jury m U
of life and death, and before the ei
given, he declares his opinion without li
the cause.
Sir B. Skauer, My lord, we know sei
the trials have been printe<l, and the oa
several persiins mentioned, and upon reai
the trials, or conversing about them, a
a|«t to give their opinions one way or oth
Serj. Da t nail. It is only an objeotkiu
he has done it.
Just. Rokebj/, But, brother, how ca
ask him the question ?
Serj. Darnull. If the court are of i
that it is such a crime that it cannot be
as tending to make a man accmie himsel
infamous crime, then we submit it to yo
1 confess we must not ask it ; but we
apprehend that thera is either crime or i
in It, though we think it is an ol^^iun,
good cause of challenge.
Baron Pouf^s. I think, thoupfh ithe nc
a crime as infamous uj^n whieh a man
to be credited, for that la iufiimy in the
the luw, whereby a man is pre^odiecd
credit ; yet however, it is a shamdul th
a roan to give his judcrment beihie h
heard the evidence ; and therefore I Ihu
ought not to ask him it, to make ^ '
himself, if it be an opprobrious
him.
Serj. Darnall. Truly, my kwd,
took it to be the rule, if* the thing i
person returned be not criaunel nor mi
the party that is asked ought to wwmr i
8
JBf}
Jbw High Treason*
L. C. J* Trthy, I would Ma kuow^ if you
SMilii ask uiy of the jurymeQ this i^iieslwn^
bciW he be g'ailty ui all the ovioMft that n^
dooed hy ilie kst uct of graise, he b* b*ond
tey, i>ar«fffil Undoiibtedty im cftonot isk
Dj tttch question ; ao, not to any one of the i
f Hiiilg^ thcftHa iDentiooed.
1* C- X TMfjf. Bat 3?€t you will force bim
t» discover m ettino (il^ it be one) ilmt i» uu par-
lust. Fcmdl* Certtanly y0u fotoo f»r, Wo*
thn^ for no isan ia obliged to ohax^ bntelf
with whiit is criminal ; bat irlMtkir iNs be
erimintl to «ay, < t believe soch a one wUI be
'IvnitfTii^' isof aootber eonsiO«ratiost.
Juftt. Heke^^ But I think it mosl be {MPored
ipoN hi«i, if any objection be miiclp,
ftr iIl ^^tfver. My lord, it will be n« easy
Ifel^ la hno^ wvliie«c» to prove this matter,
^riwuafore we wmM have it fram his own
Riykehy. And il ia a very ha id matter
jui to be put upoo pro?iu|;' every dts-
\ that he has had about the public a^aira
I liioe.
rtler. Tlie rcsson of your exc«|*tian is«
has ileehired his opiaion before-han J,
I pafty would be JMiiffed or would ftiAirer»
i reproach and a redaction upou a wise
» to 00 ; and if thej can pfo?e it upon
el thetn do it : but whether you should
bim sucli a i|OQstioii, whether he bo a fuoi
ort knave for the giving an opinion one way
ir«htr, that is the quttsiioo before ua.
8crj« DurnalL My lord, we do not offer it
to tJie court at an objection thai be is not a wise
dtt. Gen. But what a man does utter im*
indciitlv. may oc« asinn a prcjodica against
hm^ antf theretbre oiigrhtto be proved, and not
be tu prove it himvelf,
L, C J. Trehy, BsiieciaHy being a free-
/lelder of London, ana taking notice of what
%ioqe in Londeo ; and if he does take notice
r fact, 9ind does previously give hii opt-
I of a mnttrr which he may* be called upon
yla '' nn mdiscnstion and a re-
ah to I J ihiok^ a niiftdemeanon
Uarnall. My lotnl^ J ackiiowle^lj^t; it
ae ol htm, that in, indiftcreeUy and not
a4 we arould hate discreet and wise
i|ien our jtiry.
. Comper, lly lord, Mr, 8erj. DaroaU will
litaa Utile a thing at hs%, that it will
to no cmnse of challenge, if it w^rc
I proved igainst him, whidi we insiiit it
] III hf. ii lieitig thnr objection^ and the
t^ bound to prove it agaiiut him*
rj 1 we think there is wore in it
» so, because it is an unjust prejudging of a
» beibm he is tiied and beard ; and if so,
I a t^iiiff tliat he ought not to accuse biui-
ftf, and ibarefore \¥t oppose the asking any
I^itrmmiL Oor aljaattep is not beontwe
I m nfl^Qce to dedait a man^iopiiuMi vpoti
VOL. Xlll.
a fad retried, but because it ehews he ba
a settled opinion against the person of bis {,
and so he is not so ei|ual a man lo try him 1
L»G.J. IVsfl^. And is that like an hoi
man and a freeholder of London^ (nho ou
to be indBihrent) to come with a settled om*
nion against a man, when he is to be one of I
jtiryf
Seq. Damnll, Well, my lord, wo have 1
beard, and submit it to tlu) judgment of ih4
court* '
L. C. J. Tmby. TndT, I think il tfctlMrlt]
both dishonesty and dishonour upon him,
there tore these <|uestions ouc^ht not to be at'
'Fba qoestian i» not, Wliethur a man (if ere
such a man there were) that hatli so resolv
aod declared shtdl be sworn? No ; he is not I
to serve upon a jurj^. But the qtieiliQii if
How thiK shall be discovered, hy hia own i
or by other proof? I think it ought to be ma
appear by other pmof, if true. A man
tainted of fekiny, lorgeiy, false verrlict, orp
jury, ought not to s^rve on a jury, yet he sha
not he examined concerutng the same on
Voire Dire. And if theris be in a court a ctipy
of siioh judgment carelully exaoiined and I
by bimseU; bu shall not be ftvced to aniwtrl
whether it be a true copy ; though his
swer could not subject him to any turtliec ^ J
najiy.
8ierj* DamgU. My lord, I h<*pe no \
man of the jury has done^ ii.
L. C. J. Treby. I hope no freeholder of
London is so indiscreet or so unjust. Bifl if
any man in this pauiiel ham any puriicubrdis*
pleasure to lbs prisoner, or he uuiniiitiereuti
or have declared b'mistilf ao, 1 do udiuonii^li utvff
desire him to discover so much in i^euerul \
for it h not fit, nor for the boooiir of tiie klng'j
justice, that such a man sbottld serre ou
jury,
Serj. DarnalL We hope f»o too, IVe bop
that aJl that are returned upon the jury nr
discreet and impartial men.
Ci.ofAr. Well, Sir, what siy you to thb
grntleman, Mr. Walker.
Cook. 1 challenge you, Sir.
f,L of Ar, Natfiarnel l^rig.
8ir J^. Shifwer, My hml, we tbiuk he cna^
ask if they have a freeliold or no \ because the
law re([uireg that qutiUficaiioD, and the prisoner
not being able to prove the negative, it puts
the proof of the affirmative upon the person
himself,
Alt. Gen. Whatdoes sir Bartholomew maanf
Would be have tlie jury -men bring their evi-
dences with them te prove their freehold f
L C, J. Trcby. No, i^ui-e, Mr. Attorney t.
but to a&k the liuestion was allowt'd him the
last time, and we will not deny him the ^me
just lavournew.
Cook. Are you a freeholder, Sir, in Loodou
of tJie valiie of 10/. a-yesr ?^Ij)n'. Ye
Cook. Were you oV the grand-jury wl
the bill was found ogainst me f — Long* Ff o> ^
Cook. 1 ehaUongto yoa, Sir.
U ^Ar, Yfmm CarbonelL
Z
S99]
SWILUAMin.
CarbonelL My lord, I am no freehoMar.
L. C. J. Trehy, If bat, doci he say be bas
DO freehold ?—C/.e!*-^- Yet, my lord.
L. C. J. Treby. Then he muit be let aside.
CI cf Ar. Jothiia Foater.
Fmter. My lord, I am no freeholder in
London neither.
JU, Gen, My lord, we desire they may be
•worn, whether they bare a freehold or not
Cl.o/Ar. Hold Mr. Carbondl and Mr.
Foster the book. [Which was done severally.]
You shall trae answer make to all siich qnes-
tioos asshall be aaked yon by the Coart So
help you God.
Att. Gen. Ask him if he hath not a free-
hold in London ?
CaHnnulL No, I hare not.
CI. ffAr. Have ^ou, or any body in trust
Ibr you, a ireebold m London of the Tslue of
10/. a-year ?— Car6oiif//. No, Sir.
CL SfAr. Joshua Foster, have you, or any
in trust foi; yon, any estate of freehold in Lob-
don of the value of 10/. a-year P
Fattr. No, Sir.
CL cf Ar. Joseph Billers.
Coo/c. I desire they may be called in the
order as they are m the pannel ; you have not
called JobnEwen, who is next.
CL cf Ar, I do call them in order: as for
Mr. Ewen, one hath made oath that he is sick,
and is not able to come hither. What say you
to Mr. Billers ? There he stands.
Cook, Sir, are you a freeholder of 10/.
••year within the city of London ^
Billers. Yes, Sir.
Cook. Was you of the grand -jury, Sir, when
the bill was found against m< P
BilUn No, Sir.
Cook. 1 challenge you.
CL ofAr, John Child.
Cook. Sir, are you a frrtholder within the
city of London ?^Child. Yes, Sir.
Cook, or 10/. a-ycar ?— Child. Yes. Sir.
Cfwk. Were you of the grand-jury when the
bill was found against nie f^^Child, No, Sir.
Cook. I challenge yon.
67. of'Arr. Kdwanl Leeds. -
Cook. Sir, are you a freeholder within the
city of London of 10/. a year f
Leedt. Yes, Sir.
Cook. Were ]rou of the grand jury that
found tlie bill ac^ainst me ? — Leedi. No, Sir.
Cook, i challenge you.
L. C. J. Treby. What question was that he
asked him P
CL of Arr. Whether he were one of the
grand jury that found the bill.
L. C. J. Trtby, A verv proper question : fur
an indicter ought not to be a trier*.
* This exception was allowed by Jeflferies
C. J. in Titus Oates*s Case in this Collection
(vol. 10, p. 1081. See too Hawk. PI. Cr. and
Collcd)j;e*s Case as referred to in the Note in
that page). In that Case two indictmento hav-
ing been found against Gates, when he chal-
lenged one tor bariiig beca of the graad jury
Trial of Peter Cadi '
CL ofAr. Tlioroas Clark.
Cook. Sir, are you a freeholder witi
city of London of 10/. a year?
Clark. Yes, Sir.
Cook. Were you of the mnd jar
found the bill against me P^^CmtA. No,
Cook. I challenge you.
CL ofAr. Nathan Green.
Cook. Arc you a freeholder, Sir, witl
city of London of the Talue of 10/. a yeai
Green. Yes, Sir.
Cook. Were yOu of the grand jor
found the bill against me P— Green. No,
Cook. 1 challieiige you.
CL ofAr. Henry Sherbrake.
Cook. 1 have nothing to say i
CL ofAr. Then boid Mr. I
book. [Which was done.] Look up
prisoner. You shall well and truly tr
true deliverance make between onr si
lord the king and the prisoner at the bar,
you shall have in charge) according t
evidence. So help you Gm.
[Then Mr. Sherbroke wus put into tb
appointed for the jury.]
CL qfAr. Henry Dnr.
Cook. Sir, areyouaireebolderinthe
London of the value of 10/. a year P
Dry. Yes, Sir.
Cook. Were ^ou of the grand jur
found the bill against meP — JDry. No^ >
Cook. Sir, 1 chaHense you.
CL of Ar. Joseph Morewood.
Cook. Sir, have you a freehold in ]
of the value of 10/. a yearP
Moreniood. Yes, Sir.
Cook, Were you of the grand jtfi
found the bill against me P
Morewood, No, Sir.
Cook. Sir, I challenge you.
Cl.ofAr. Rirhard Greenway.
Cook. Are you a freeltolder of 10/.
in London P — Greenway. Yes, Sir.
Cook. Were you of the grand jai
found the bill against me P
that found the bill, the attorney -gene
swered ** i believe he was upon one of
dictments, but I think it was not tbii
wliich the Chief Justice replied, '« Bi
were in either of them he cannot be so
tial." Upon the Trial of Fitsharris /»
this Collection, vol. 8, p. SSO.) Major vl
objected to serve on tne jury, on the
that he had in parliament voted the in
ment of Fitzharris for the same cri
which he was then to be tried ; but y
this would have been a sufficient exee
his serving was not decided. It seems
was set aside for want of freehold in
right. In 19 Blod. 305, it is said, tha
Case of the King against Kirk and jC
was grouted that some of the grand ji
found the bill myhtbe of thepettyjvi]
too, the Case ot Hendley wbA oCBcn
Collection, a. d. 1719.
fit tiifpi 7Vi0aioN«
«|y. No, Sir.
IVy I ehtUeiife you.
Ir. Joha Sherbrook.
lir, are you a fireehoider of the dcy of
' 10/. a year f^Sherbrook. Yet, Sir.
Were yoa of the grand jary that
bill against me ?
ok. No, Sir.
Mr, I challenge yoa.
Ir. Thomas Emmet.
Are you a freeholder, Sir, within the
ndoo of 10/. a year ?
Yes, Sir.
Were yoa of the grand jury that
hilt agunst me ?— fmrnoi. No, Sir.
i challenge you.
(r. Samuel Jackson,
iiir, are you a freeholder within the
ndon of 10/. a year ?
. Yes, Sir.
Were j|oa of the grand jnrv that
bill against me ?— /ocAiofi. Mo, Sir.
lir, 1 challenge you.
[r. Henry Hunter.
Lre you a freeholder. Sir, in Lomlon,
eof 10/. a year?— Hanr^. Yes, Sir.
Were you of the grand jury that
bill against me ? — Hunter, No, Sir.
chal&nge you.
Ir. John Deade.
^, are you a freeholder within the
ndoo of tne value of 10/. a year f
Yes, Sir.
Were you of the grand jury that
bill against me ?—Dmc/^. No, Sir.
challenge you.
(r. John Cullum.
accept of him. [He was sworn.]
r. Thomas SfaAW.
accept of him. [He was sworn.]
Ir. Geoige Joyce.
Sir, are you a freeholder within the
idon of 10/. a year?
irei,Str.
Were you of tlie grand jary that
bill against me ?—Juyce. No, Sir.
challenge vou.
!r. Ricnanl Young,
hate nothing to say against him.
[He was sworn.]
r. John Hedges.
Sir, are you a freeholder within the
idooof 10/.ayear?
Yea, Sir.
i¥cre you of the grand jury that
bill aniast me t^mdget. No, Sir.
cbaUenge yon.
r. John James.
iiry Are yon a freeholder within the
■doo of 10/. a year?
Yea, Sir.
Wen you of the grandnury that
biB against me ?-^(sme«. No^Sir.
I«bidloogeyoa.
Ir. ThMDisFoole.
Sr, .An yoq a freeholder within
A.D. M86.
[M»
» yoa a irael
arioLayetr
FooU. Yes, Sir.
CMt. Were you of the grand-jary tl
found the bill against me ?^Pse/r. No, Sir.
that
Cook. I chidlenge you.
TAr. Peter Parker.
a/i_
Cook. Sir, Are yoa a freeholder in the city
of London of 10/. a year ?— P/irAer. Yes, Sir. .-
Cook, Were yo'S of the grand-jury that
found the bill agamst me?-^ParAer. No, Sir.
Cook. I chulengeyou..
CL of At. William Wilkhison.
Wimnnn. Bfy kird, 1 am no freeholder
in London. [To which he waa sworn.]
CLofAr. Henry MHchel.
Cook. Hold, Sir, here Thomas Man in lAy
pannel is next.
CL (fAr. There is oath made diat he is
nek in bed. What say yoo to Mr. Mitcfael f
Cook. Sir, Hare yon a freehokl of 10/. a
year Hi the city of London ? -
MUcheL No, Sir. [To which he was swon.l
CLfAr. Rkbaid Ryder.
Cook. Sir, Have yon a freehokl of 10/. a
year in the city of London ?
Ryder. Yes, i have, Sir ; but I live in a
parish that never served upon any juries, nor
ever did in the memory of^any man.
CI. ofAr. But have you a freebohl of 10/.
a year? — B^der. Yes, Sir.
Cook. Were you of the grand-ipry that
found the bill aeatnst me ? — Ryder, No, Sir.
Cook. Sir, i challenge you.
CLofAr. Richard l^mple.
Temple. My lord, I am no freeholder. [To
which ne was sworn.]
UfAr. Peter Walker.
Cook. Sir, Are you a freeholder of the city
of London of 10/. a year?— TTo/ilrer. Yes, Sir.
Cook. Were you of the grand-jury that
found the bill against me ?-^Walker. No, Sir.
Cook. I chiulenge you.
CL ofAr. Thomas Pistol.
PittoL I am no freehdder. [To which ha
was sworn.]
CLofAr. John Hunt.
Hunt. My lord, my name is mistaken ;
my name is William Hunt.
L. C. J. Treby. Then you must go on to
another.
CL ofAr. John Hardret.
Hardret. I am nO freeholder of 10/. a year.
[To which he was sworn.]
CL cfAr. John Hammond.
Cook, Are you a freehokier, Sir, of 10/. a
year in London? — Hammond. Yes, Sir.
Cook. Were you of the grand-jurv that
found the bill agamst me? — Hammond. No, Sir.
Cook. 1 challenge you.
CL ofAr. John Cooper.
Cook. I accept of him. [He was sworn.]
CLofAr. Josselin Roberts.
Cook. Sir, Are you a freeholder within the
city of London of 10/. a year ?
Roberti. Yes, Sir.
Cook. Were you of the grand-junr that
found the bill against me f ^Roberts, No, Sir«
Cook, I cbulenge you. .
343J 8 WnUAM lU.
CL^Ar. Jonathan MifskfethWMit.
Cook, I have nothiii|r to lay agftiDsi bam.
[He was svrorn.l
CLofAr. Richard ChisweU.
Cook, Sir, Are you a freehoMer wifhin tke
city of Loudon of 10/. a year P
Ck'uweiL Yea, Sir.
Cook. Were you of thejrrand-jury that
found the bill agfamat me ? — CkiswelL No, Sir.
Cuok. I challenge you.
C/. ^Ar. Jose^ Thompson.
Cooic, Sir, Are you a freeholder of the city of
London of 10/. a year ? — Thompton. Yea, Sir.
CooAe. Were ^fou of the grand-jury that
ibiMd the bill asainrt me ?
Thompson, 1 was returned upon the grand-
jnry, but did not serve.
Cook, 1 challenge you.
C/. ofAr. Ediwd Brewiter.
Cook, Sir, Are you a freeholder of the eity
of London of 10/. a year?— Bremiter. Yes, Sir.
Cook: Were you of the grand-jury that
found the bill against me ? — Brewtter. No, Sir.
Cook, 1 challenge yon.
Cl.qfAr. George Gooday.
Gooday. My lord, I am no freeholder. [To
which he was sworn.]
CI, ofAr, Abraham Hickman.
Cook, Sir, Are you a freeholder of the city
of London of 1 0/. a year ? — Hickman . Yes, Sir.
Cook, Were you of the f^nd-jury that
found the bill uaainst me ? — Hitkmun. No, Sir.
Cook, 1 challenge you.
CI, of A r. Geoi^ Grove.
Cook, Sir, Are you a frcehnlder-of the city
of Loudon of 10/. a year ?— Grorc. Yes, Sir.
Cook, Were you of the c^rand-jiiry that
found tiic bill against me P — Groroe, No, Sir.
Cink, 1 clmilenge you.
CI, of Ar, Nallianael Wyersden.
Cook. Sir, Are you a freeholder of the
city of Loudon of 10/. a year P
Wyersiien. Yes, Sir.
Cook, Were you of the {jrand-jury that
found the bill against me? — Wi/ersden. No, Sir.
6'oo/v'. I challenge 3'ou. My lord, 1 desire
to know how many 1 have excepted against.
CI. cf Ar. One- and -thirty.
I^lr,^ Bark in/t. Uij^ht, iJMrht.
CI. t'f Ai\ SSaniuel Bkwiit.
CoaA;. Are vou a freeholder of the city of
London of 10/. a year ? — lUewitL Yes, Sfr.
Cook. Were you of the cfraud-jnry tliat
found the bill against nie? — BCtmtt, No, Sir.
Cook. I challenge you.
CLof'Ar. John Wolfe.
Cook. 1 accept of him. [lie was sworn.]
CI. of Ar. William Smith.
Coolc. Sir, are you a freelioldor of tlic city
of London of lOl, a year J—SmUk. Yes, Sir.
Cook. Were you of the grand -jury that
found the Rill against ine ?— Smif A. No, Sir.
Cook. I challenge you.
CI. vfAr. John IJickley.
Bickiey, My lord, 1 don't look u)ion myself
as a freeliohler.
L. C. J. Trtby. Why lO^SirP
TrM^POerCook.
\m
Bickley 1 have a lease for SI yem^ my
lord, of my house, and Uiere ia a Ttry ^mt
piece of ground acyoining to it tliat wm very
convenient for -nie to lay to uiy lease ; there is
no way to it but through my bouae ; it is alluBg
that never was lelt for any thing, and it is not
worth the building.
L. C. J. Treby. What estate have yim in it ?
Do you pay a ground-rent lor it P
Bickley. M v lord, 1 bought that little piece
of ground for the conveniency of my leaae.
L. C. J. Treby. But did yon {Mirehaas it kt
a term of years, or to you, and to your behsP
Bickley, Nay, 1 bought it for ever, my loid.
L.C. J. Treby. Then you have a frecbsid
in it. What is the value of it P
Bickley, Truly very little, my lord.
L. G. J. Trehy, I do not know any Mr
can judge of the value of it but youmtf. M
worth 10/. a j'ear ?
Bickley, My k>rd, I cannot value it at lOLa
year, it never coat me 40/.
L. C. J. Treby. Then for estate yo« ait«dl
enough, but for value you are a little under.
CLofAr. Thomas Gollins.
Cook, I accept of him. [He waa swan.]
CL <fAr, John Watson.
Cook. I do not challenge biro. [He m
sworn.]
CI, of Ar. Benjamin Hooper.
OmJL 1 accept of him. [He waa awon.}
CI. ofAr. John Wells. ^
Cook. Sir, are you a freeholder of dieeiljif
London of 10/. a year P-- Welh. Yes, Sir.
Cook, Were' you of the grand -jiirir liMl
founrl the bill a«rainst meP WeiU, No,ar.
Cook. I cliallen^^e you.
CI. ofAr, John Ilii>burt.
Cook. Sir, atu y uu a fr(.*eholder of the city flf
London of 10/. a year ? — Iltbbari, Yeii, Sir.
Cook. Were you of the ^rund-jury thatlbaid
the Bill against me ? — Hibbart, No, Sir.
Ccok. I challenge you.
CLofAr. Mr. Cook, you have chattoMNd
your full number. Call Daniel Wray. pk
was sworn.]
CL of Ar. John Pettit. [He waa aiiMi.]
Cner,Countez.
Henry Sherbrook.
Crier, One, 6cc.
CL ifAr. John Pettit.
CrieV. Twelve good men and true, standl»-
gctlier, and hear your evidence.
The names of the twelve arc as follevi:
Henry Sherbrook, John Cullum, ThottM
Shaw"^ Richard Young, John Cooper, Jonatktf
Mickli'thwait, John Wolf, Thomas CoillHb
John Waison, Benjamin Hooper, Daniel WiNt
and John Pettit.
CLof Ar. i Irirr, make proclamation.
Crier. O Yes, If any one can into
lord the king's jusiii*es, the king's
the king's atiorniy general, or this inq
to be taken of the high-treason whereof i
Cook, the prisoner at t!ie bar, atandla iiF
let them come forth and tliey shall he Uttik
for the prisoner now stands at the har I
/&r Hi^ Treason*
k t mn) tM olben Ui«t are bounil b^
^ td Ipve eviJeooe agniust tUe jin-
al Uk! iiar, lict Uiem coine fbrlb* and
gi9« tUctr evklcQoe, or Ibej fod'eit their recog-
.J. Trtby. You Haust make room far
twelve ^nll«B>eti tbat are sworn, ihat
llcjf m^ be at case ; sod tor lliose tlial are
QOttworti, their aitenclnoue niav be tjuured^
Ci. vfAr. PeU-r Co*ik, UM up iby liquid-
[WhWb Ue did.] Getil^ftK^Qi >'ou that are
twom, look nuMk ihe f^riaaner, iuhI hearken to
b» onwe. He standA iudictixl in London, by
ibe MBe of Peler i'mikt laic of Loudou, geu-
tbam ; fo^ thai w bereas an open and iioto-
nim\f public and mo«t hlmt^ anil cruel war,
Ira 4<re]it ifrhlle balk Ueu, aud it is by land
Uil 1 . 1 ^1 OQ and nrosecukMl, by Lewis
1*^, ag^iiioKt Ibe mosi sefcneymost
; t excelleut prioce» our sove-
the Third, by the grace of
1,..^..-..,,, :icotU)»d, France, and ire-
^ kiof « dettn^r of Ui« laith, 6£c. All which
. ibtr i^iil Lewis ihc French king, and his
I L' foes and enemies of
,i( now is, William Xh/e
Wii, A4id hih Aubji'cU ; he ike said Peter
Cook^ a subject of the said lord the king tlial
now iii, of this bis kiagdom of England, weJl
bowinit the premiiei, not having the fear of
<2«d in his heart, nor wttgfaing the duty oi' hiB
All^^ttiiioe, but being moved and (;eduoed by
iW maiigalion of tile deTtI, as a false traitor
IgjUost llie said most serene, most itnld, and
texc'»il**r't fir!'»f>e, our sovereign loril Wil*
I tlie 'l '• king of England, his su-
tui , ^^lulj lavirful, and uodoubled
te oordial love, and true and due obe-
Mflily; and aileg^iaoce, winch every
^cct of the«aid lord tbe kins' that now i^ to-
iSfl him oiir said lord tbe king should bear,
* iioundiobear, withdrawiu|^; ami
t '^tJiiiih, intiinding, and contriving',
vyith uli hisstreiigtb purnoeiinir, aud de-
DiDg the goverDmeot of this kingdum oi
'and, under him our said lord the king that
I o4* rigiit duly, happily, and very well
Utwhed, altogether to subvert, cbouge, and
T, and hts faithful subjects, and tiie freemen
loT this kingdom of England, into iotolerable
1 mtserable servitude to tbe aibresaid Freiich
to subdue and enthral ; the iir$t day of
' I the seventh year of tbe vei^n of our
ord the king that novr is, and divem days
ime%^ ts well before as after, at Londou,
\ parish of8t. P^tet,Cornblll,iiQ the ward
^lysely, maliciously, deviljihiy,
ilid couipoiES, inline, and
niispoae and intend, onr said sofe-
tfie king that ninv is, then bis so- ,
V, rtgklfuf, and lawful brd, of attd
bmn tbe regal state, title, honour^ power,
^msikf enifiire^ and govenintent of this kiiig-
ilimi 41^' fingland to depoiie^ cast down, and ut-
ialjr de|irfTS, and ibe s^ate onr lord the king U»
4mih and tinal deslniotion to bring* uiul the
^^tm^^ijewm die Freiiob kiogt «y ortDi^?
lllfil oil
iol&rB,legi«ns, and his sut^ots, tlms klngdooi
of Engknd to inva<ie, fi|;ht \i itk, coauuer and
subdue, to move, incite, procuie autl assisL
and a miserable slaughter cunoii^ iJie foilhtlu
subjectsof our said lord kin"[ William, thrm^b-
out this whole ktu^<lam o? Eii^^land, toJsak«
and cause. And iurtber^ that tbe said Peter
Cook, during tbe war atbresaid, to nit, the
aforesaid first day of* July, iu tbe seveuth year
abovesaid, and dirers other 4lays and times be*
fore and ailer, at London atiiresaid, in ib^
parish and ^^ard afciresaidf to Uie said foc^s ajid
enemies of tbe same our lord tbe king, did ad*
liere and was aasisliog ; Aad his aibresaid most
wicked and devilish treasoas» and tnutormis
comjiossings, contrivances, intentions, and pur»
|io$cs afoiesaid, to fulfil, perfect, and bring la
etTect, and in prosecutiou, purformancej and
execution ol' that traitorous udbenug, he the
said l*eter Cook, us su b a Jalse tmlior, durk^
the tvar afurcsaid, to wit, (he same first day •!'
July, in tlie year abovesaid, at London a^re-
said, in tbe uarisb and ward oibresaid, and di-
vers other days and times, as well before ay
after, tliere amlekewhere in Loudun albresaid,
falsely, maliciously, xidvisedly, secretly, and
traitorously, and by ibree auif arms, with one
Jlobert Chamock, sir John Freind, and sir Wil-
liam Parky US, knights, (which iiaid Roheft
Ckamock, sir John Freind, and sir William
Parkyns, were Jately severally daly convicted
and ^altainlad of high treason, in contriving and
conspiring tbe dcalb of our said lord the king
that DOW iii) and with divers other fidse Irajtnc*
to the jurors unkuowrn, did ineet,|>copoae, treat,
coni.ult, consent, and agree to procure from the
afore.*5aid Lewis the French iaug, of \u» sub-
jects, forces and soldiers, theu, and yet, the*
and enemiesof our said sovereign lord William,
now king of England, ^c. great uumbera #t'
soldiers and armed men, this kingdom of £i|g-
land to juvnde and tight with, and to levy, pnt-
cure, and prepare great numbers of armed
men, and troops, and legions againat our said
lord the king that <iow is, to rise up and be
formed, and with those Ibes and eneiuiea, at
and upon such their invasion and entry within
this kingdom of England, to join and unite, rB-
bellion and war against our &aid lord the loMf
that now is, within this king^dom of Eugland,
to make, levy, and carry on ; the same our lord
the king so, as aforesaid, to depose, and bim to
kill and murder: And further, with the said
false traitors, Ibe same firHt day of July, in the
year abovesaid, at London aforesaid, in tbe
parish and ward alo/tesajil, traitorously did con*
jiult, consent, and agree to send the afosesaid
Hubert Cbamook m ameaaengerfrom him4he
said Peter Cook, and Ibe aa»ie other tr&itnv^
as far as, and into the kingdom of Franoe, m
ports beyond the sens, unto James the Jiooiuid,
late king of Eugkmd, to pro|iost' t»« biiu^ audio
reijuest him to obtain Jjom tbe utt>re«uul Ff«n(ih
king, the»alafaaBid«dklienifmd armed men tor
the invastfin aiaaasaidiio be made, and lutelli-
gence and notice of sudi their traitorous inteo-
iiioMi attd4ulheriupsto tbu>nid kleking James
347]
8 WILLIAM m.
Trial qfPeler Cook,
[S*
the Second, and the said other foes and ene-
mies, and their adherents, to give and shew,
mnd them to inform of other things, particulars
and circumstances thereunto referring, for the
assistance, animating, comforting, and aid of
the said foes and enemies of the said lord the
long that now is, in the war aforesaid : and to
stir up and procure those foes and enemies the
readilier, ano more holdly this kingdom of Eng-
land to invade; the treasons, and traitorous
contrivances, compassings, imaginings, and
purposes of the said Peter Coolc aforesaid to
perfect and fulfil ; also the same first day of
July, in the seventh year abovesaid, at London
aforesaid, in tlie parish and ward aforesaid, he
the said Peter Cook, divers horses, and very
many arms, guns, muskets, pistols, rapiers,
and swords, and other weapons, ammunition,
and warlike matters, and military instruments,
folsely, maliciously, seCVetly, and traitorously,
did obtain, buy, gather together, and procure ;
and to be bought, gatheretl together, obtained
and procured, did cause, and in his castoily had
and detained to that intent, to use the same in
the said invasion, war, and rebellion against
our said lord the king that now b, him our
said lord the king, of and from the regal state,
crown and government of this kingdom of
England to depose, cast down, and deprive, and
him to kill and murder ; and the designs, in-
tentions, and all the purposes of him the said
Peter Cook aforesaid to fulfil, perfect, and ful!y
to bring to effect, against the duty of his alle-
giance, and against the peace of our said sove-
reign lord that now is, nis crown and dignity,
as also against the form of the statute in such
case made and provided.
Upon this Indictment he has been arraigned,
and thereunto has pleaded Not Guilty, and for
his trial hath put himself upon God and his
country, which country vou are ; your charge
is to inquire whether he be guilty of the high
treason whereof he stands indicted, or not
guilty ; if you find him guilty, vou are to en-
quire what goods or chattels, lands or tene-
ments, he had at the time of the hip^h treason
committf'd, or at any time since ; it yon find
him not guilty, you are to enquire whether he
fled for it ; if you find that he fl<*d for it, you
are to enquire of his ^004ls and chattels as if
you had found him guilty ; if you find him not
guilty, nor that lie did fly for it, you are to say
so, and no more ; and hear your evirience.
Blr. Mmnpesson. May it please your lord-
ship, and yon gentlemen that arc sworn, this is
an indictment for high treason ot^iust Peter
Cook, the prisoner at the bar, and the indict-
ment sets forth, that whereas there lias been an
open and cruel war for a long time, and still is
between his majesty king William and the
French king ; Uie prisoner at the bar not
weighing the duty of his allegiance, the first of
July in the rth year of the king's reign, did
compass and intend to depose and deprive the
king of the title, honour, and dignity of the
imperial crown of this realm, and likewise to
put the king to death, and did adhere to the
king's enemies ; and to fulfil these treaMHia. b
did consult with Chamock, and several oihe
traitors who were mentioned there, and some o
whom have been found guilty of treason, ani
executed for it^ to send over to the late kioj
James, to persuade the French kin? to seo(
over soldiers and arms to invade this kingdom
and to raise an insun^ection and rebellioo in il
and to deprive and put the king to death ; ani
to complete these treasons, it further sets fortb,
that the prisoner at the bar did provide several
arms and horses, and this is lain to be agaioH
the duty of his allegiance, against the king*!
peace, crown and dignity, and against the fona
of the statute in that case made and iirovidfd;
to this he has pleaded not guilty, and lor UM
put himself upon the country ; and, gealle-
men, if we prove these facta laid in tbeiodlet-
ment, it is your duty to find him guilty.
Att. Gen. May it please your lordsliip, sid
vou gentlemen ot the jury, the prisoner aldw
bar stanils indicted for high treason.
Cook. My Lord Chief Justice, ifyourlorf-
ship pleases, before the witnesses are eisnin-
ed agamst me, I intreat you that they msysil
be both in court together, that one may not bar
what the other swears, though I suppose it ii
the same thing ; for they have been tsgeibff
both now and the last day.
L. C. J. Trebi/. Mr. Cook, I roust tdl ym,
it is not necessary to be granted for asking ; lir
we are not to discourage, or cast any i
upon the witnesses, when there is notkiif
made out against them ; but it is a fovoar tksi
the court may j^rant, and does gram sometioMi^
and now does it to you ; though it be net «f
necessity ?* They shall be examined apart, btf
at present this is not the time of examinslioa:
for the king's counsel arc now to open the evi-
dence before they examine the witnesses; bat
when the time comes for the witnesses to k
* It is noticed bv Mr. Peake, Compendial
of the Law of Evidence, ch. 3, s. 6, in a Nslc^
that it appears that the present practice of «-
deriug witnesses out of court during the mo-
gress of a cause, so as to prevent them mm
hearing the testimony of others, is very aocint;
and he cites from Forlescue de Laudibus Le«
gum Anglis, c. 2G, the following passage:
*' Et bi necessitas exegerit dividantur tesM
hujusmodi donee ipsi de|)osuerint quicquid fe-
lint ita quod dictum unius non doceoit autooa"
citabit eorum aliuiu ad cousimiliter teatificu*
dum."
Sec, also, 1 Siderfin, 131.
In the Case of captain Thomas Vaughan, ■
this same year 169G, in this Collection, il a
said, that a prisoner cannot insist as on a rigkl
on the removal out of court of the witM
for the crown during the examination of i
other.
Mr. Peake (ch. 3, s. C), omita not to i
the advantages of examming witnesseaifttkl
absence of each other: which, indeed, is.iMi
illustrated by the ancient narrative in ^ Afft
cry pha, of Susaonali and the EUen.
^«9]
for High Treasdn.
|Sl«d and examined, the court will, in favour
I], take care lUat your request becomi^ietl
f. Gen. May it please your lordship^ the
OCT stands indicted for hi^h treason, id
'd^ and imagining' tlie death and de-
of bis majesty, and likewise in ad-
J to bit majesty's enemies ; tiiese are the
oni specified in the indictment : the overt
that are laid to prore these trea^ns are,
ribtt he, with several other traitors named in
. fbe indictment, did meet and consult and agree
I ti send oirer Charnock into France, tu invite
Ibe French king- to make an invasion upon the
hiflgdom, and did provide arms fur that pur-
jam.
Gentlemen, the nature of the evidence that
jttH will have prviducetl to prove the prisoner
giilty of tbe^ treasons lies thus : It will ap-
p(tr UiyoQ, that there has heeo fur some time
iMQSptrscy carried on by several traitors, and
wicked peiiions, to subvert the estAblicihed go-
Hmtient of this kingdom, and destroy the
I cooitjtution of England, by a foreijtn^ invafiion
ofthe French. You will hear that this con-
ipincy was laid wide, and consisted of several
]«rti ; on<! part was that of assa&sinating hia
Q^^y's royal person, and that was to be done
fim, ss a preparation and encouragement to
4fce French to invade the kingdom: the other
fVt was the inviting the French king to invade
1 tlie prisoner at the bar is accused of be-
Doerneii in thtt part that relates to the
I of thrti kingdom by a French power ;
ngb it may be the other part, that of
naihig the Kin^, he the blackest part of
iincy» yet if the prisoner at the bar
, engaged in the inviting a foreign
to inva^le the kingdom, my lords the
I will tell you, in pomt of law, that is as
I overt-act of the compassing the de-
I oflbe king and the people of England,
i flubvennon of our ancient good consti-
lifllMi, as if he had been concerned immediately
ttike other part, the assassination.
hut now, gentJ«;men, that the prisoner was
eij^ged in inviting the French to invade us,
?0Q irtll bear proved by several witnesses, that
tbcie baving been a design last year, just be-
ft«t bii majesty went to Flanders, to eicpoae
^OVQ pevaon for our protection, and the pro -
ttetion of tbe liberties of Europe, there was a
CQQlpiinicy to murdar him betbre he went to
Flmdem, which, it seems, they were not ripe
for then; hut immediately after he was gone
laFbadeim, you will bear there were forma)
tenittl^ of several gentlemen and persons of
ftali^, among ivhom the priiioncr at the bar
iru one: there was a meeting in May, last
. mUer the king was gone to Flanders ; and
(at the Old Ring^s-Head in Leaden-
and there were present my lord ot
ary, mr lord Montgomery, sir 'William
a, sir John Freind, Mr. Charnock, (all
I three last have suftered the punishment
i law for their treason already) and there
^ftlM Ml* Cook, the prisontr at th^ bar,
4
jlilgiav
A. D* 1696. [350
Mr. Porter and Mr. Goodman ; these men did ^
meet together, to consider of the best ways aaj
means of encouraging and inviting the Frendt '
king with an armed force to invade this kiag-
dom ; they considered that that wa^ a propei;
opportunity, and did treat of several arguments
that might persuade to it : First, That the king
was gone to Flanders, and so was not in persoi|
here to defend us ^ and that the troops, to maktt>.
good such defence, were in a groat measure '
drawn thither, to assist the allies againit the
French power; they did think likewise that
at that time there was a great discontent and
dissatisfactioQ in the nation, though T think ia *
that they were greatly mistiiken ', and I believe ,
and hope they will always find themselves so^
to think that the people of England are so liUl^ J
sensible of that which is the meauH of their pre*^
serration, as to hearken to any disconteuls to ]
encourage a French power to come into Eug^ i
land to destroy oor religion and liberties ; tba| ]
indeed they did apprehend, though tliey werf ^
mistaken, and I believe they always will, wbea ,
they go upon thot ground,
fientlemen, These persons thinking tbta ft {
proper opportunity, did a^pree to send a messeiir J
ger into France upon tins message, To go t^^
the late king James, and persuade him X» .
desire and prevail with the French king to
assist him with ten thousand men, 8,000 foot,-]
1,000 horse, and 1,000 dragoons; and to en* f
courage him, they promised their assisiaoctl
here, as soon as lie came over ; and under*
took, that between them they could furnish | \
and would raise 2,000 horae to meet him it
hia landing, and join upon aucb an invasion.
Genllenien, At this meeting this was agreed
upon by all iJiat were there, whereof the pn«
soner was one ; and they did agree to send '
Mr. Charnock ; (who has since been ejcecuted, i
and a principal encourager of the design, and ^
actor in it) he was the messenger that was ap-
pointed to go ujMiii this errand, and Mr. Chat-
nock was resolrefl to go ; hut desired another I
rotating of these gentlemen, to kuow if they ^
continued ia their former resolution, that ht J
might have all the assurance that was rea;-^]
son able to give the French king encourage-T
m en t to make the invasion: accordingly ano*^
Iher meetiog was bad af moat of the s
persons that were at the meeting before ; par- ^
ticularly the prisoner at the bar was at tbatl
second meeting, which was in Covent'Gac>i
den at one Mrs. Mountjoy's, who ke^paj
a tavern nei[t door to sir John Fenwick'f ]
locrgii^s ; there they met upon the same^
design, and upon consultation had, and the]
auestion asked, they did agree to contiuue inj
le former resolution ^ and upon that im^i
mediately Mr. rharnock went into FrancetJ
to aohcit forces from thence to invade us j
but it happened, as it seems, that the Frenc
king^a forces were otherwise employed,
that he could not spare so many at th^
time ; and this return wa^ brougiit by Char-
nock to the gentlemen that employed himj
that be bad 8pok« with tbt Iat« king, vvbo gavr *
»l}
8 WILLIAM 111.
[SSi
him tbtt iDSwer, That the French king could
not tnre so miiny men at that time, but he
IbanKed them for their kindness.
Gendemen, this will be the nature of our
efidence, to slicw, that the prisoner at the bar
was eoneemed in that part of the conspiracy
irhich relates to the French iiirasion ; and if
he be guilty of that, in point of law, be is as
much guilty of the conspiracy to depose and
murder the king, as if he had been concerned
in the other part of assassinating his royal
person ; and 1 believe nobody can think, that
those that were to act in tne assassination,
would have attempted to engage in such a des-
perate design, if it had not been for the encon-
ngement of the French invasion that was to
second them afterwards, if they suct*eeded ; so
that nobody can extenuate the crime of the
iavaaion, because as to the horridness of the
attempt, it is less black than the other ; they
■re both crimes of a very high nature, and
equally hi^h-treason ; and if we prove the
— i J. gruilty of this part, we hope you will
ind him guilty.
Oen. My lord, we will call our mt-
Sol.
and prove the matter, as it has been
opened. Call captain Porter and Mr. Good-
Serj. Darnall. Now, my lord, we must de-
wln that that may be done which our client
desired before, and whidi yonr lordship was
fiivourably pleased to promise, that the wit-
nesses may be examined apart.
L. C. J. Treby. Let it be so : who do you
beffin with ?
Sol. Oen. We begin with captain Porter,
ray lord.
L.C. J. Treby, Then let Mr. Goodman witli-
draw.
Mr. Baker. T^etMr. Goodman go up stairs^
and we will call him presently.
Sol. Gen. Swear captain Porter : [wliicli
was don*e.] Captain Porter, Do you know Mr.
Cook, the prisoner at the bar ?
Cant. Porter. Yes, my lord.
Sot. Gen, Do you remember a meeting of
some gentlemen at the King's-Head-tavern in
Leaden-hall-street ?'^Porter. Yes, I do, Sir.
Sol. Gen. Then pray, give an account of the
company that were there, the time when, and
what passed ?
Porter. My lonl, the last year we had two
meetings ; the first was in May, the other was
the latter end of May, or the beginning of
June; the first was at the Ring*s-Head in
Leadeiihall -street ; there were my lord of
Aylesbury, my lord Montgomery, sir John Fen-
wick, sir John Frcind, sir WfUiam Parky ns,
Mr. Chamock, Mr. Cook, and myself; Mr.
Goodman came in after dinner ; at this meet-
ing it was consulted which was the best tvay
and the quickest to restore king James, ami
hasten his return into England; several dis-
courses and proposals there were; at last it
was agreed to send Mr. Chamock to the late
king, to borrow of the French king 10,000
men, 8,000 fcot, i,000 hm^t aod 1,000 dra-
TridofPaerCookt
goons, to he sent over into England ta aaisttbi
ling's restoratMMi. Says Mr. Charaaek there-
upon, This the king can do without your vend-
ing, and I would not go upon a ibohsh emsd.
Wiiat will you do to assist in this matter? Hie
com))any desired him to promise king Jamo^
that if lie would send word when he hioM
and where, they would be sure to meet him at
his landing with a body of 2,000 horse.
Att. Gen. Was the prisoner at tlie bar ii
the company, and present at this icsolulioo F
Porter. Ves, he was.
Att. Gen. Did all the company agree la it f
Porter. Yes, they dki.
Att. Gen. What signs were there ef Ibdr
agreement ? Did they stand up severally sad
declare their agreement, or liow ?
Purter. Mjr lord of Aylesbury and ar Jskt
Fenwick did rise up, and deairedcaptaia Cbv^
nock, that he would go upon this etrand : m4
when the question was asked severalWsf il
there present by Mr. Chamoek, wheuflr lis
might assure the king of what they bad M
him? every one said, Ysa, you may; mI
Mr. Cook kneeled indeed, upon a chair, mk
said. Yes, you may.
Att. Gen. Did lie give his eonaeattoitF
Porter. Yes, he answered 14 tboaa wiy
words.
Sol. Gen, Do you remember any 1
of any company at Mrs. Mount|oy's *
Porter. Yes, that was a aeoonif BMete.
Sol. Gen, I^y tell my tord and the jay
how you came to meet there then, what wth
pany were tlicre, and what passed ?
Porter. Mr. Chamock ilesircd another nett-
ing, to see if the gentlemen kept to their feraMr
resolution ; and we met at Mrs. Mooatjiy^
eight or tea days after, and there were rasit tf
the company that was at the first meeting, sii
there all that were present did assure Hr.
Chnmock that they kept to their first vas>
lution, and would abide to what was agitti
upon at the ft>rmer meeting.
Att. Gen. Who were present at the ssflsal
meeting P
Porter. The prisoner at the bar was theiaik
that second meeting.
Att. Gen. What was that second meeli|[
for, do you say ?
Porter. It was to give Mr. Chamock &h
surancp, that we were agreed to stand bytbi
resolution taken at the first mcethig.
Att. Gen. What did Mr. Chamock do sA«-
wards?
Porter. I went away from them; thcieaii
sir William Parkyns, sir John Kreind tA
captain Chamock went to the QueenVH«l*
tavern in Fleet-street, and captain ChanNdk
teld me he would go in two or three days, flii
I believe did so.
Att. Gen. When did you see hfm ttHth
wanis ?
Porter. When I was a prisoner upoa #i
account of the riot in Drury-Lane ; abaal i0f
or three days after I came to Newnftl ii
came to see me^ and said he liad Mili
Jbr High Treason*
aadthat kin^ James tlianked us for our
T, bal ibe French kiii||^ could not spare
r men that year ; and he toid me he
I with my lord of Aylesbury, and the
le gentlemen that had employed him
nr* and had delirered them the several
I thai he was ordered to from the
J. Treby. Captain Porter, who were
U the second meetins^, do you say P
f. M^ lord of Aylc»bury, sir John
sir William Parkyns, captain Char-
[r. Cook, and myself; I cannot tell
my lord Mont^mery or Mr. Good-
ie at that second meeting, or no.
wen. Captain l^irter, 1 would ask you
qnestioQ : you were concemc<l in the
ition with those other persons tl^at en-
I it ; Pray, what safety did you pro-
^'ouraelres after the assassination was
r. My lord, 1 asked sir George Bar-
a wc should do afW the fact was com-
says he. You need fear nothing, I
iway that nifi^ht, I have a ship ready, .
king will be landed in five or six days
ds ; if you will but keep yourselves
so many days, all will do well.
en. If the prisoner or the counsel will
any questions, my lord, they may
Shower, Pray, Sir, can you recollect
le of day this was that this debate and
D were had at the Old King's- Head
nhall-street ?
*. Truly, sir Bartholomew, I cannot
SkoKcr, Pray, by what means do you
that this was in the month of Nay ?
'. Because capt. Charuock was ah-
ihe Dog-tavern riot, which was the
fune.
Shower. Was it not in April ?
'. No, Sir, to the best of my remem-
was in May.
Shower. What makes you think it
[ay rather tlian April P
-. I have told vou. Sir, because both
I were hetbre tne Dog-tarern riot, the
luiie, and Blr. Charuock was not there
me ; but he told me afterwards he had
?rance, and there were eight or ten
urence between the two meetings.
len. My lord, if they have done with
rouM ask him one question, to settle
ter in point of time. Capt. Porter,
! king gone to FUmders when you had
ctino^sP
-. The king was gone, Sir, before the
(Big.
rca. The king did not go till several
llaT ; was Mr. Goodman there P
\ Ha was at the first meeting, but I
nil whether he was at the second
DtsnMl/. Prmy, what time was Mr.
■ ihare si tlw first DIM
A. D. 1696.
[S54
UII.
tmMtingP
Porter. He came up after dinner at the first
meeting.
Mr. Baker. Then call down Mf. Goodman.
[Who came in and was swoni.l
1S0/. Gen, Mr. Goodman, Pray will you
gfive ray lord and the jury an account what
vou know of an intended invasion upon this
Kingdom ^ what were tlie circumstances of it,
and who were concerned in it.
Goodman, My lord, about the middle of
May last, or thereabouts, captain Porter sent to
me, and toid me there was a meeting of some
gentlemen of our acquaintance at the King's-
bead in Leaden hall-street; and he desired ma
that I would be there, because it was about bu-
siness : i told him I did not know whether 1
could be there at dinner ; but however I would
not fail of coming thither after dinnrr ; and
accordingly I came. When I came into the
house, I sent up my name to captain Porter,
and he came down and brought me up stairs,
and there I saw my lord Mont^mery, my lord
of Aylesbury, sir John Fenwick, sir William
Parkyns, sir John Freiud, Mr. Charnock, and
that gentleman at the bar, Mr. Cook : when we
were there, the discourse was, that wc did
think king James's coming was retarded, and
we would do any thing to facilitate his rcsto*
ration.
Cook. My lord chief justice.
L. C. J. Trc^jf. What say you, Mr. Cook?
Co(ik. My lord, if your lordship pleases, I
desire the jury may not be talked to by any
body ; and I understand there are some talking
with the jury.
L. C. J. iWln/. Vy upon it! we will lay
any body by the heels that do so; they must
neither be disturbed, nor instructed by any bf>dy.
Cook. My lord, I am informed there was
somebody talking to them, and telling them
this was the same case with sir John Freind.
L. C. J. JVehi/. Do you but shew us the
man, and we will find another place for him ;
we will send him to the gaol, I will assure you.
Mr. Burleigh. This gentleman, my lord,
did hear such a discourse to the jury (pointing
to a gentleman there) who stood up.
My lord, I cannot |>ositive1y swear to tlie
man, but I did hear some discourse that it was
the same evidence as in the former trial.
L. C. J. Trebi/. If you can shew us who it
was, we will take care to punish him : I sup-
pose he stands corrected ; and if we knew who
he was; he should stanil committed. '
Att. Gen. Pray, Mr. Goodman, begin again,
and tell what passed at that meeting, bemuse
the jury were interrupted from hearing by peo-
ple's buzzing about them.
Goodman. My lord, when captain Porter
brought me u^) into the room, I told you wliat
gentlemen I tound there ; after we were set
down, there was a consultation, that consider-
ing the Freneh king's wars rcurded the affair
of sending back king James, and the means of
restoring him to the crown, it was fit we should
find out some way or method to facilitate 'his .
restoration, and it was thought convenient to
?55] 8 WILLIAM IIL
bave a messenger to send orer to kio^ James
witli proposals for that purpose ; to this effect,
as near as 1 renoember, That if king James
could prevail with the French kiog^ to fumisii
]0,000 men, whereof 8,000 to be foot, 1,000
horse, and 1,000 dragoons, we would endeavour
10 meet him at the head of as many horse as we
could raise, to sustain those forces at their land-
iu,:; : this was debated in order to come to a re-
solution ; and much difficulty there was how
many the number should be ; the man pitched
upon to be sent, was Mr. Chamock ; and ailer
some debate, how many thousand horse could
be raised : says Mr. Charnock, do not let me
go over upon a foolish errand, but let mc know
what I have to say exactly : thereupon it was
concluded by all, that 2,000 horse should be
the number we could promise, and the king
might de|>end upon them ; and if we brou^t
more, so much the better ; and sir John Fremd
said, I believe he has so many friends here,
that if he came himself, he might be welcome ;
but that wo did not think fit to trust to ; and
nobody would advise any such thing. When
the resolution of the thing and the number was
thus fixed, Blr. Clinrnock asked, whether it
were with all our consents P and that he might
assure the king, tliat this was our resolution
thereupon ? We all rose up, and said to htm,
Ves, you may, yes, you may, every one par-
ticularly ; an(l I remember one thing particu-
larly concerning the prisoner Mr. Cook, that
• he Kneeled upon the chair when he said. Yes,
you ma}' ; and his elbows were upon the table:
this is a^l that I know of that meeting. There
was to be another meeting, as captain Porter
told mc ; but I had business in the city ; but
whatsoever he ]>roniised on my behalf, as to
the quota of men, I would be sure to make it
^'ood ; and I was not at the second meeting.
Att. Gen. Did you see Mr. Chaniock af-
tcrwanls ?
Gcodman. \es^ I did, when he came back ;
;:nd he told luo the thing was not acccptetl, for
ihc French king could not spare men, and that
lie had he«".i xsllh the several gentlemen to carry
them tilt' compliineiits that ho had in charge
from king James, \*horeturnid tlicin thanks
fur their j;ood aflcciion ; and, ainon'^f the rest,
U6 did M)t> tiie honour to return me thanks too.
Sir B. SfMU'cr. Pray, Mr. Goodman, let me
ask you a question : \vhen was it that you saw-
Mr. tharnock after thiai*
Goodman. It was in Arundel-street, at his
lodgings.
8ir h. Shoticr. But I ask you. Sir, when
It was? was it before or after the 10th of
June?
Gootlman. It was after the 10th of June, Sir.
Sir B. Shtncer. How long after, pray ?
Gaodman. I believe it was a month after tlie
10th of June.
Sir B. Shotrer, Did you see him here in
England bttbre Mr. Porter was discharged
from the riot, and came out of Newgate ?
Goodman. I believe I did eee him before
•aptftin Porter waa diicbacged, long.
Trial of Peter Cook,
[SSS
Serj. DarnalL Who were the peisous tint
were present at that meeting ?
Goodman. My lord Blontgomery, my lofdtf
Aylesbnry, sir John Fenwidc, air John Frdod,
sir William Parkyus, Mr. Chaniock» captiia
Porter, and the prisoner at the bar, Mr. Cook.
Serj. DarnalL Were you at dinner with
them. Sir ?
Goodman. No, I came in after dinner.
Serj. DarnalL Pray, what house was it, 4k
you say, this meeting was at?
Goodman. It was at the KJng*8-heMi ii
Leailen hall-street.
Sir B. ShoRyer. Can you tell what day of die
week it was ?
Goodman. No, nor the day of the month.
Sir B. Skomer. Was you erer in the com*
pany of these gentlemen at any other time?
Goodwin, No, this was the only time that 1
heard of this consultation : I was not at lilt
second meeting.
Cook. If your lordship j^eases, may 1 uk
Mr. Goodman any questions ?
L. C. J. Trcby. Yes, by all means ask Ini
what you will.
Cook, Mr. Goodman, you are upon yov
oath: but did yon ever bear me speak" ta
woixls in your life P Was you ever in my cauh
imny in any house, before or since ?
Goodman. Yes, Sir ; I was in your ooB-
pany at the Cock m Bow-street, where yaa
came in accidentally.
Cook. Did you ever hear me talk of the |t-
vernmenty or any thing of that nature ?
Goodtnan. What the discourse was of, I
cannot particularly say, but I am certain yoa
was there: and as to the consultation thtt I
now speak of, I remember very well yon save
your consent in thatlnaiiner as I hare told tkt
court.
Au, Gen. My lord, we have done at tha
present.
L. C. J. Trcby. Then, brother DanaD,
what say you for the prisoner ?
Serj. ^DarnalL May it please vourlordihipi
and you gentlemen of thejurv : I am of coon-
sel, in tKis cose, iur the prisoner at the bar,
Mr. Cook, who stands indictiMl of a very gnat
offence, no less, gentlemen, than high- treafoa^
and if he be guilty, his punishment will be aa
great; but because the puuishment and Ikt
ofletice are both very great, the law reqmNi
exact positive proof, and that by two credikl»
witnesses. There have been two indeed that
have been produced to >ou ; and if you believt
hotli of them, after what we shall otfer to yM
against them, and if what they swear be trM^
the prisoner is guilty ; hut it we satisfy jMj
that either of them is not to be credited, ao thil
you do not believe both of them, be most IM
acquitted.
There is no doubt. Gentlemen, but there h0
been a villainous horrid plot ; there is do qM»*
tion of it; and it was, as it has been op(
basely to assassinate one of the bravest I
living ; antl to make the happiest people ka I
world, if they know when tliey utm eo^ I
57]
Jbr High Treason,
A. D. iGae.
[358
ml miwrable people upon eartbi by briDgingf
wm ttDder French tyranny and elarery.
liny oftbetraitori have been brouj^ht tojust
aniihinent for tbia treason ; nay, they have
vaed the Tact at their deaths, ao that there
I no qurstioii of the trutli of it ; and therc-
'ore, gentlemen, every honest man will en-
ieavoiir to brin**' such as are plainly guilty
)f sach an abominable conspiracy, to just pu-
hidinient; hut yet they will be as careful
iMt to let an innocent man suffer; that,
^eQilemen, every honest man will take care
ot'. ind especially such as are upon their oaths :
it concerns a jury highly to he satisfied that
lie li Dot innocent, whom they bring in guilty ;
tor It is belter that twenty guilty men should
oeape, than one innocent man suffer.
kilt, Gentlemen, if my brief be true, we
•bili tfive yuii such an account of one of these
vitnenes; fn-st, as to the man himself; that
be is Dot a man to be credited as a witness ;
asd then besides that, as to the evidence he
fiva ID tliiii case, (I say, if my brief be true)
tt u fai.4p, and we slmll prove it so ; and when
JOS have heard our evidence, if you are satis-
oid that one of these witnesses is not to be ere-
Alid, or that what be sweara is not true, you
m to actfuit the prisoner.
Gf'ottemcn, here has been one Mr. Goodman
pradoced as a witness, one that never was pro-
d'jceil before at the trial of any of those that
bf e suffered, so that the truth of their guilt
iocs not at all depend u|ion bis evidence, nor
iocs it give any credit to it. This is thb gen-
ticBao*s first entry upon this atage; and yet
(dmj brief be true) this is not the firet bloody
V cnid part that he has acted ; for we have a
naord of conviction against him, whereby it
•ifl appear to you, that he was indicted (for
adeivouring to poison two ^reat dukes) for
D40 guineas to an*ltahaii empiric, one
, ei, and promising 200/. more when it was
Wtod, to poison the me dnke of Grafton, and
■Wsivsent duke of North uml»erland ; and we
Ml sbew yoa, that he was convicted of it, and
M a thousand pound for the offence ; which,
wadcring the meanness of hit circumstances
Nftat time, was aa mncb as twenty thousand
^■aida; for he could as well have paid twenty
■ ooe then ; and it appears too, tiiat Mv,
Bndnan (nay, it will not be denied by him
Nnsetf) WM in this horrid plot ; and he that
■isU be cuiiccmed lo poison two dukes in a
Wy, to which he had so many obligations —
Qmidmmm. Ny lord, 1 desire leave to speak
lilkis matter that the scrjeant mentions.
9m}. DmmuU. Pray, fir, let me go on ; you
■ij lUk anoQ ; 1 have aeen the copy of the
Mimd of couvictioD,* and have it ready to pro-
Imt.
iff. Gea. Mr. Goodnwn, be quiet, and stay
ilky and byr; you will be defended, no
WlOB it; but in the mean time let them go
iMaido »ol interrupt them,
J«> Benui/I. I aay,;my lord, he that would
■•■■MiBtd in ao Yile aa ad, at a contrivance
^^iMMBv tim Ham of two gmu dukct,
^who were, in effect, his young masters^ that
he should go to poison them in a family to
which he had been so much obliged ; and then,
he that would be concerned in so horrid a plot
as this was, to destroy his country, and take
away the life of the kin^ ; sure it will be no
difficult thing to think Uiat this man will not
stick little at the prisouer's lite at the bar, espe-
cially when he has s') great a temptation to it,
as to save his own lite by it.
But perhaps some of you may doubt whether
it is to save his own hfe or no : but I believe
there are none of you would give any credit to
^ him, if you thought so : therel'ure, to satisfy
' you of that fact, we shall produce you evidence
of his own opinion of that matter, beside the
general known circumstances he lay under:
as, that he was long in prison before he charged
the prisoner with any thing, and the prisoner
was at liberty, went every day abroad foe a
a week after Mr. Chamock's trial, and never
absconded one minute, but lived publicly, open-
ly, and visibly to all his friends, and all strait-
gers : but besideff, gentlemen, that Mr. Good-
roan knew he must die, and justly and desery*-
edly tor this horrid plot and treason himself;
and had no other way leil to save his life, but
to come in thus as an evidence and accuser,
which we think will shake his credit with you.
I say, besides all tliis, (if my brief be true)
we shall prove that he has said himsdf, That
either he must hang Peter Cook, or he most
be hanged himself. Thus, gentlemen, he
swears to save his owa life, by takuig away
another's.
This, Gentlemen, is as to the man him*
self, that he is not to be credited. But now
further, as to the evidence that he has giveu:
he tells you that he came into the tavern ia
Leadenhall- street, and that tlierc he found
such company ; he owns he came in at\er din-
ner; and that the other gentleman, Mr. Por-
ter, owns too ; he says there were present at
this meeting, my lord Montgomery, my lord
of Aylesbury, Mr. Cook, and several other
gentlemen ; ' but (if my brief he true) we shall
prove by three wilnesses, that he was nut
there till they were gone ; and that will make
an end of all the pretence of his evidence.
Att. Gen, Nay, then we shall never have
done.
Heij Darnall. V\\ assure you. Sir, I have
the names of three witnetises in iii\ brief, to
prove that my lord of Aylesbury," my lord
Montgomery, and Mr. Cook, vtrc g^me be-
fore he came in, thoun^h if any, or either of
them were gone, it destroys his testimi>ny ;
and if we prove this to you, 1 would be loth to
he one of the jury that should take away the
prisoner's life upon this evidence ; iiu, if he
were the vilest man alive, and much less the
life of the prisoner at the bar ; for we shall
prove '(if ray brief be true) he is a man of mo-
rals, a man of virtue, one that has a great love
for his country ; and this we shall prove by
evidence undeniable, persons of quality in their
eouatry, t%ch u senra their country m parlia*
359] 8 WILLIAM lU.
mcDt, as their represeDtatiTes ; we shall shew
it bv such evidence, that there will be no mom
to doubt of it : he is a man without any stain
or blut upon him, till this accusation ; he is the
eldest son of his father, and heir to a ercat es-
tate ; his father is a great officer, and a great
^ti'r under this government ; and con it be
imagine<l or believed, that such a man would
be guilty of the worst of treasons, to destroy
the religion he professes, to overturn the state,
to ruin his own estate, himself and his poste-
rity, which must be the consequence of it ?
Nay, if two good witnesses could be produced
to testily it, and if we had not had so much to
take oflT the credit of Good man, 1 could hardly
believe it of any man that was in his right
■euses ; he must have been a madman if he
had done it, one that stood so well with the
present government, and of a family never
tainted with disloyalty.
Certainly, gentlemen, when we make out
this to you against Mr. Goodman, the prisoner
can Le m no danger of his life from Mr. Good-
man's evidence, tliough he is an unfortunate
man to come under such an accusation ; but I
cannot lielieve that any jury, upon such a
inan*s evidence, will brand an honest family
with the foulest, vilest, blackest treason that
c\er was hatched; no, gentlemen, you are
meu of ability and understanding, and that is it
we rely upon ; we doubt not but that you will
consider the evidence, and consider your oaths,
and not let the prisoner's blood lie at your
doors ; therefore we shall go on and call our
witiiLSses to make out what 1 have cjiened.
^iir jB. Shoucr. My lord, we desire to call
our witnesses, and I shall reserve myself to
ijiakc somo observations after we have given
our evidence : Mr. Srijeant has opened as much
as we can prove, and we will now proilucc our
evidence ; First, we will shew the conviction
of Goodman : Mr. Jiurleigh, where is the con-
viction ?— Ml". Burleigh. Here it is. Sir.
Sir B. ShuKcr. Where haclyou it, Sir?
Mr. Burleigh. Outof thclVeasury at West-
minster.
Sir B. Shojccr, Is it a true coj»y, did you
examine it there ?
3Ir. Bfirkivih. Yes, it is a true copy, I did
examine it with the record.
Sir B. Shotecr. Then read it, Mr. Tanner.
CI. of Ar. [Reads] — * Michaelmas Tenn:
' Tricesimo sccundo Caroli Sccuudi.'
L. C. J. Trcby, Read the record in English
to the jury.
C7. of' Ar. [Reads.] * Be it remembered,
* that sir Roliert Sawyer, kni;4lit, Attorney Ge-
* neral of our lord the king that now is, who
* lor the same our lonl the king in this part
* sueth, camu herein the court of our .said lord
* the king, before the king himself at U'est-
* minster, on Thursday ne.\t alter three weeks
' of St. Alirhael, the same term ; and f^snthe
* same our lord the king, brought hei-e into the
* court of our said lord the king, before the said
* king, then and there, a certain information
' against Cardell Goofliuap, late of the parish of
Trial of PeierCookf
[Sfi
St. Martin in the Fields, in the cmmty of Mid
diesex, gentleman, which infomatioB folkm
in these words, scilicet ^ Middlesex iciUeet^ B
it remembered that sir Robert Sawyer, kaifl[hi
Attorney General of oar said lord the kai|
that now is, who for the same onr lord tb
king, in this behalf sueth, in his own propc
person came here into the coart of oar tsi
lord the king, before the king himself i
^ Vest minster, on Thursday next afker tbre
weeks of St. 31ichael that same term, and fb
the same our lord the king ^vea the coer
here to understand and w mformed, Tbi
Cardell Goodman, late of the pariah of St
Martin in the Fields, in the county of Middk-
sex, gentleman, being a person of a wiekd
mind, and of an ungodly and deviludi diipe-
sition and conversation, and contriTing, piae-
tising, and falsely, maliciously Snd devilnfalf
intending death, and poisoning and final d»-
stniction unto the right noble Henry duke if
GraiU)n, and George duke of Nortbunbv-
land, and that the aforesaid Cardell OoodnHB,
his roost wicked, most impioue, anddenljih
intentions, contrivances and practices alwe-
said, to falfil, perfect, and bring to effect, tk
30th day of September, in the six-and-thiitiflh
year of the reign of our lord Charles the Se-
cond, now king of England, &c. and divn
other days and times, as well before as aftr,
at the parish of St. Martin intheFicUi^ii
the county of Middlesex, with force and aia%
&c. falsely, unlawfully, unjustly, wickd^,
and devilishly, by unlawful ways and nMMi
did solicit, nerbuaile, and endeavour to pm-
cure one Alexander Amydei to prepare lod
procure two flasks of j^iorence wine, to k
mixed with deadly poison, for the peisooiig
of the aforesaid right noble Henry duke of
Grafton, and George duke of Northumber*
land ; and his most wicked, most impioaf^
and devilish contrivances, practices and uln-
tions aforesaid, to fulfil, perfect, and the mon
to bring to effect, the aforesaid Cardell Gooi-
man, the day and year abovesaid, at tbo
parish aforesaid, in the county^ aforeoiii
falsely, unlawfully, unjustly, maliciously aiA
devilishly, did promise and agree to give laii
the aforesaid Alexander Amydei forty pieeM
of guinea gold, of the value of forty pomidii
of lawful money of England, if he the nil
Alexander Amydei would pre|iare, prooaie
and provide two flasks of Florence wine, It
be mi.xed with deadly poison, for the poiMi^
ing of the aforesaid right nuhlc Henry dakefli
Grafton, and George duke of Northumber-
land ; and if the aforesaid poison with Ihl
wine aforesaid to lie mixed, shoukl efleel Al
death of the aforesaid Henry duke of GiaflMb
anTI George duke of Northumberland ; tkil
then he the said Cardell Goodman would gifl
unto the said Alexander Amydei the^j^d
J 00/. and that beyond sea he would nrWr*
the said Alexander, all the days of Um
the said Alexander, to the evil and meit fth
nicious example of all others in the libejflMl
offending, and against tlie peace of ow vU
fur High Treason.
\ Ihe king that now His, bis crown and di^-
Hiitj, he* — Then here is process prayed by
M9 Attorney Geoeral ajQ^inst Mr. (loodrunD,
aod by bis Attorney pleads not
Uty, Rad liere is issue joined.
air B. Shomer, Well, see for the rerdict.
CL of Ar, There was a trial at Nisi Hrius,
Bit the jury lind that the sahl Cardell Good-
nan is guilty ol' the premises in the InH^rma-
apectfietl, as by the tnformation is sup-
fawd againtft HitD.
Sir B. Shower. Now read the Jitd|fnieDt.
a. Iff Ar^ * Thereupon it ig eonsiileret!^ that
*tbe said Cartletl Goodman do pny to the
'kiojETthe sura of 1,000/. for his fine, imposed
*apon him for tlie oeca«ion aforesaid^ and that
♦the nf'^r* v»i I Cardell CJowhuaii he rommilted
*\n 1 1 I sea of this court, iu execution
*fofii ! toresaid, that he be safely kept
' there, ttN he pay his tine aforesaid ; and before
*t^jat the said Cardell Goodnian is delivered out
* of the prison aforesaid, he shall grtTe aecurity
^ to behave himself well, during- his life, and
* i(m> shall 1^1 ve security for the peace to be kepi
* towards the said lord the kmCf and all his
* pftple» and particularly tow ard« liie right noble
'Ikury duke of Grallon, and George duke of
* North utnhcrbnd.'
S*TJ, Darnall. 8o, yoo hear the recorti of
the infomTAtion, conviction and judgement, for
A very horrid aboniinable crime.
Att. Oen. But I desire tbey may now go on,
nd read the whole of the record,
CLofAr. [Reads.] * And afUrwards,towit^
* su Pnday next at)er eig-ht davs of 8t. Hilary^
^ b th«> 5(Vih aod 37th years of tfre reign of our
* wid lord the king thai now is, bet'gre our said
* lord the kin^ at VVestminster came the atbre-
sir R«i|>ert Sawyer^ knig-ht^ Attorney*
riful of our said lord tlte king that now is^
^«ihI aeknowledj^ed that the suid Oardell Good-
*iiiia has »atistied to our said lord the kin^
* litit now is, of the judirnictit aforesaid a^iost
*fcilD, m form aforesaid given, iherefore the
*ttid Cardell Goodman is thereof acquitted ;'
M BO forth.
8erj. DarnolL Call Mr. Charles Edwards^
William Cock, Christopher Crawford, Mary
Cnwford.and Mr. lluolley.
[E4lwards appeared upon a Habeas Corpus,
directed to the keeper of Newgale, where be
tfts a prisoner.]
Mr* Baker. Whero is the warrant of his
itmenl ? What is hecomimtted for ?
Takififld. He ia committed for suspicion of
on, and treEtaooable practices.
Mr, Baktr. Is be not committed for higb-
mm f^^TokefieU, No, Sir, he is not»
Jen. DamatL What discourse had you with
Ir. GcKxlman concemmg: the prisoner at the
ir ? What did you hear him say P
Mr. Baker, He i« not sworn yet; it seems
'i gpcnUetuao was Dundee's chaplain in 8cot*
AiL Gtn* if be be ool § wom^ he can gtf e
Serj. DarnalL My lord, we desiro he may
be sworn.
L. C. J. 2V%. Swear him. [Which was
done.]
Serj. DarnalL Pray, Sir, will you tell th^
court and the jury, what you know of any
dmcourse of Mr* Goodman's concerniugr th^
prisoner at the bar.
Edwards. My lord, 1 desire to know, betnfir
ig-norant <»f the ta%v, whether I atn broughi
here by the common course of justice or not ?
Ser^. Darnali. 81 r, we lisve subpceuned
you ior the prisoner at the bar, to gfive evi-
dence of the truth of your knowledge here
u|ion oath,
L. C. J. Treby. Would you have us tell you
how you came here ? We suppose you came
by^ due process^ ol' law, as a witness.
Edumrth, Then, ray lord^ 1 desire to speok
but one word ; that it is a strange thing lit me
to consider, how words ^jhould be carried awsy
that were privately spoken ; as if it were to
expose me to the reproaches of all my friends;
it is a thing that 1 did never expect to hear of
again : however, seeing I am called bere^ and
obliged upon my oath to declare what I know,
1 by God^s grace will* to ihe uttermost of my
power, tell what ban passed in this matter.
L. C. J. Treby. Do not make any afio logy
for telling the truth : you are obliged by your
oath to do it, and the court expects it from you.
Edwards. Among otiier discourses thai
passed betwixt Mr. Goodman and me, f asked
iiim when Mr. Cook was to be armignett^ and
when he was to be tried : Says he« he is to be
arraigned upon Monday, and be is to be tried
upon Thursday. I asked him, whether it waa
tor the .4s8a«si nation- Plot, and he told me No.
For what then ? said i : as being concerned in
sending Mr. Charnock into France P Who are
the evidences against him? said I. Said he,
captain Porter and myself. Said I, 1 believe
t AO witnesses will he tound good, or by way of
demonstration in taw ; and 1 pity the poor
gentleman's case. Says he, He swore against
me. How conieti it then, said I, thai he is not
come otf, and has not a pardon, and wouki
divulge nobody else?
L. C. J. Trcb^. Who had not a pardon da
you mean ?
Edwards. Mr. Cook. I asked, how he bad
not a pardon? Says he, He wouhl irive an
accoimt of nobody else but me, an<l that wns
the reason ha bad no pardon. 8a id ! lo him,
Who are the evidences a|;iunst him? Saya
he^ captain Porter and mynelf. Aod al^er this,
aays he, Uc or I must perish; or^ He um\ I
must sutfer ; 1 believe the word wun suffer.
But, says he, it is a foolish thing to he hanged.
All that is said of a man that is hanged, is.
That he banged handsomely, or bedieil bruvidy,
That^s all the discourse that I can remember.
8erjt DarnalL He said it was a foolish
thing to he hanged ; and Mr. Goo^lmau, it
■eema, had no mind to be hanged ; and i be-
lieve so too : hut he must not bang my client^
to aave his own liJe.
3591 8Wn-LIAM lU.
menlf as ihelr represeDlalives ; we alioll she\r
it by such evidence, that il»« n will \u^ rm room
10 (litubl of it r he ir a tr
or biut n|mn liiin, Ull thi» :i<
eldest son of hin fatber, and hrir tu a t^rrni e^t-
taie; bb ThOrt k tigrrat oHicer^ fttnl a ^Te*t
gcttf^r under this (foverninent ; and can it be
imag^ined or l>elieved| tbat such ii mun would
be (^ui)t^ of (be wurnt of freHSOfis^ to tlestroy
the rebgion lie piofe^es, to ovrriurn ibe state,
tu rum btii own estate, biniMlf ' ' ; •
riiy, which inuHl be lbt% can
Nay, if two good witnesses coi...i ^
to lesiify ii, und if we had not bad
tnke off the credit of GfHxbiiat^ I cd i ._u ^
htfiere it of any man thot wii!« in \m n^bt
aenft««; be mti«t have been a mudiiian if iw
liad done it, one (li;4t silood so wrU wtth tire
present government, and of a family ntwtr
lainttd wiib disloyalty.
Ceriiiinly, f;en*le»»t«^?» when we m^k^ not
4hi» loyop '^ -M, ^" , ,:_ ^i
em Lcni
man to c(M
cannot IneiiT^i:: iii.ii ,111 f
inan^s evidence, will br:'
**jih ibe likti'*^'*r liU'fcf !
c\er w»v
men of al
we rely umm ; we d<Hibi
consider tnc evidetiec, an i
and not Irt the pri> i ^
ri oo IS ; 1 1 i^^fr»re wr , , J
hi:
^ ^^j.Jmy
Mr. Ji<^
tfiinii u*r.
AXarii
Sir J» '^
a f
'*^**"i!^ ii»« w'*^'*^
I man, OTr.
•^■fi!*'-^
remember or
laat.
^ilsSier"''"""^
i,v»an bour,
,«re ail thti tiGQc, &O10
' i^L*; I w;iitiot ID
^O^U^Uu *7 ^^*- Ooodnwn did
you lifjoiv :'
ibcsir names.
Mr. Conyen,
come in al any })
Cr.J/W: I di
:\;
for ill
the ruoiit^ and
on( of tbc room^
sage ufi to the roal
Cramt} No, I if|
Mr. Coupcr, ik
wilbout your aee&d
CravJ\ I iho«
stairs when I cam
or i e;
names.
Mr. Camper.
then ^
CVoir/: No, su
down.
Sir D. SAiMr.
in be(ur« noy lof
Ibat tK viv biui
tbo. •
s
in;;
kn<
was nobody i
1 cam
3e7j
8 WILLIAM in.
Tritd of Peter Cooky
[«
Huntley, That was Mr. Cliarnock.
Just. Kokeby. Aud yet you cannot tell ^ he-
ther there was any body elac that you did not
know, how then can you tell that Goodman was
not there f
Sir B. Shower, He did not know hiod at that
time, but he might rememl)er him aiYerwards.
3Ir. Coni/crt. Diil not the same company use
to meet at other times, at your house ?
Huntley, Not to my remembrance.
Mr. Conyers. How then came you, if they
Be?er had used to meet there, to know all these
people's names ?
Huntley. I have seen sir John Freind there,
and sir William Parkyns.
Mr. Conyers, Was sir John Freind there,
or DO ? — Huntley. Yes, he was.
Mr. Conyers. My lord, he was the only man
that was not named before : you did not name sir
John Freind before, as I heard : but pray, did
yoa e?er see Mr. Chamock there but at that
time ? — Huntley. No, I did not.
Mr. Conyers. How came you to know it was
Mr. Charnock ?
Huntley. ] knew rery few of them liefore
that time ; and I asked their servants the names
of all those persons that were there.
Mr. Conyers. Did you know Mr. Porter, pray?
Huntley. Not before that time: I did see
Mr. Porter, and I knew him again when I saw
him : his black told me his name that day.
Sir B. Shower. You, Huntley, I would ask
you one question more : was the door shut, or
no f^Huntley. No, it was not.
Sir B. Shower. Did the servants go up and
down as they used to do ?-- Hunt ley. Yes, Sir.
Ati. Gen. Sir Bartholomew would make it
(hat there was no consultation at all.
Sir B. Shower. They were mad folks if they
would consult at that rate with the door
open. Pray call Mr. William Cock. [Who
was 8 worn. 5
Att. Gen. Sir John Freind has owned it,
that's dead.
Sir B. Shozcer. Sir John Freind's confession
b uothinsf tu the prisoner.
Att. 'Gen. Mr. Serieant Damall did optn,
that the confession of those that died was an un-
deniable proof of the conspiracy : but go on
with your evidence.
Serj. Dartiall. Pray, Mr. Cock, will you re-
collect yourself about the time when captain
Porter and some other gentlemen dined at your
house.— Coc A;. Yes, very well.
Serj. Damall. Pray. Sir, can you tell who
dined there at that time ?
Cof ft. There were my lord of Aylesbury, my
lord Montgomery, sir William *Parkyns, sir
John Fenwick, sir John Freind, Mr. Charnock,
captain Porter and Mr. Cook.
Just. Rekiby. Was that all the company ?
Cock. Yes, it was.
Just. Rokeby, Que of them said there were
eight.
X. C. J. Trthy, And h« baa named eight,
lirother.
Serj. DurnalL Can you remember when
any of the company went awayi and who wei
away first P
£ock. My lord of Aylesbury and my kn
Montgomery went away in a hackney-coach
and their servants were frequently in the rooa
and waited aflerwanls in another room, afti
that they had waited at table at dinner ; ar
though the <loor was shut, as it used to b
when any company is there, yet nobody wa
forbid to come there at all.
Att. Gen. Do you remember when Mr
Goodman came there ?
Cvck. I never saw tlr, Goodman in my Ijfi
before to-day.
Serj. Damall. Did any bo<Iy come to tbii
company before my lord of Aylesbury vtnl
away that did not dme there ?
Cock. I did not see any body there at ill:
and my lord of Aylesbury was about boying t
hogshead of wiiite-wioe, but we oouM not
agree about the price : and when my lord «f
Aylesbury went away, 1 went down with ny
lord, and waited upon him to the coach ; aadl
told my lord, I hoped he would buy the viae
still. But he answered, he could not tdl wb^
ther he should or no.
Serj. Damall. IV ho else went with my M
of Aylesbury ?
Cock, Aly lord Montgomery. I do nat re-
member any body else.
Just. Bokeby.'D'xd all the rest of the coa-
pany go away at once ?
Cock. Truly, my lord, I cannot say theydii
Just. Rokeby. by what time did the rest go
away ?
Cock, I believe it might lie eight or nioe
o'clock.
Serj. Damall. You saw my lord df A)l»-
bury when he parted : was Mr. Goodman thm
then ? — Cock. I did not see him.
Baron Pouis. Did Mr. ('uok stay till the lait?
Cock. That I cannot tell truly.
Ikiron Pouis. 1 find they all swear to four
o'clock of my lord Ayle.^buVy's going, audga
no further.
Att. Gen. Pray, Sir, let mc askyon aaucf
tion or two : did you ever sec Mr. Goodmii
before now ?
Cock. No, I do not rcmembtr I did.
Att, Gen. V/ lieu you went into the rooE
after dinner, di.l you look about the room It
see whether iliero were any new company?
Cock. I did look about tlic room sefoa
times, and so did luy servants, to see if thv
were any iWiiipf %vaiitin^.
Att. ucn. Can you take it upon your oath
that he uas not there vvhiUt my lord of Aylat
bury staid i;*
Cuck. 1 do : and can take it upon my oath
he was not.
Att. Gen. Tiien, ifyou can, pray di<tingari
the time when he came in.
Cock. I do not remember that ever iM
him in my life before to day.
Att. Gen. Why arc you not as pontifl ihi
he was not theic at all, as that he waa Delta
before my lord of A} le^bury went awny f
i
969] for High Treason.
Cock. He might come in, and I not see
bim.
AU, Gen. Might he not as well come in be-
fore they went away, as after, to cooie in and
you not see him ?
Cock, No, I do not think he could.
jiii. Gnu Why do you think so ?
Cock, iiecause the serranta were all about,
and they did not gp to dinner till Q o'clock :
and I helieve those gentleineo that I named,
came in a quarter of an hour's time to dinner.
Ati. Gen. We do not say he'came there be-
fore dinner : but could he not come in aflsr
dinuer, before my lord of Aylesbarv and my
loni BIoDt<^oniery went away, witnout yopr
ieeinor him ? — CV/c. Yes, Sir.
Sir jB. Skover. Then, hark ye, Sir, I would
ask you one question : did you see him, u}K»n
your oath, or not ?— Coc/c. I^o, I did not.
Sir B, Shotccr. Might not Mr. Goodman
cume in to them without vour seeing him f
Cock. It is possible; but I do not think it
was so.
Just. Rnkehy. How tlien can you be posi-
tive that he was not there till my lord of Ayles-
bury went ?
&/. Gen. YoQ say yp« may be positive he
*ai not there before my lord of Aylaabury
vent : can you be as positive now, that he was
not there lietbre Mr. Co<dL went P
Cock. I do not know when Mr. Cook weat.
Sol. Gen. How can you be then positive he
*M not there before my lord of Aylesbury
vent?
Cock. Tlicre were no more than what dined
there when my lord of Aylesbury w^nt away.
iMr. Canuerf. Pray, Sir, let me ask you a
question : Were you in the room at any time
after dinner f-^Cock. Yes.
Mr. Confers. Pray, Sir, how many times
^Aer diaoer, were you there ?
Cock. I believe balf a dozen limee.
Sol. Gen. And yet you do confess that Mr.
Coodmao might come in aAer dinner before
niy k>rd of Aylesbury went, and you not see
iuniP
Sir B. Skoaser. Ay, but be could not stay
tbere without his seeing him, if he was so often
in the room : you do not take Mr. Cock's evi-
4snoe riicht.
4tt. G€H. You named eight persons that
4ined at your house : did you know them all
fSHaeaJly before that day ;
Cock. Yes, my lord, the most of tiiem at least.
4tt. Gen, Did tliey use to meet at your
biMMe ?
Cock. Commonly iir John Fceiml did once a
week. Mr. Chamock I knew when I was
draw«r, and so 1 did sir William Parky ns : The
rest I knew by hearing their names.
An. Gtsn. bid you know them before that
day, £lir, 1 ask you ?
Coek. I had seen captain Porter several
tioMS before that day ; but I cannot say at my
OM house.
Sir B. Skower. Do you raroemberthe treaty
about the hogshead ot white wine f
VOL. XIII.
A. D. 1696. [870
Cor*. Yea, Sir, rery tvell.
Sir B. Shower. Were you by when my k>rd
of Aylesbury went away, and spoke with him
about it ?
Cock. Yes, I was ; and told him, I hoped
he would buy the wioc still.
Sir B. Sknrcer. Can you be positive that any
body was there before my Innl of Aylesbury
went away, that could stay*there any time, and
did not dine there ?
Cock. I believe not, Sir; for I came in half
a dozen times after dinner, and I bdieve ifl
had heard Mr. Goodman'.s name, or seen him
tliere, 1 should have remembered it ; hot I did
not see any body but those that dined there.
Mr. Cozpper. Where was you, when my
lord of Aylesbury went away ? Where did yo«
meet' him sfoing away ?
Cock. Upon the stairs : seeing my lord of
Aylesbury, and my lord Montgomery coming
down, I met them.
Mr. Cowper. Where did you meet them f
At the middle, or the top of the stairs P
Cock. My lord of .4yles1»nry was at the top
of the stairs.
Mr. Cowper, Did you meet him just coming
out of the room P
Cock. Yes, Sir, I saw the coach that was
called for my lord ; and so I went up stairs,
and met my lord at the top of the stairs coming
down.
Sol. Gen, Now, how can yon be positiye
who was in the room when he came oat of the
roomP
Cock. T wont up in the room afler my lord
of Aylesbury went away.
Sol. Gen^ How long 'after my lord of Ayles-
bury went away P
Cock. It was presently after.
Sol. Gen. How lonif licfore my lord of
Aylesbury went away had you been in the
roomP
Cock. I had been there just before.
Serj. Darnall. Call Tliomas Peachy.
[Who appeared, and wasswom.J
Sir B. Shoteer. My lord, we shall prove tbat
after the plot broke out, and after Mr. Porter
had made his discovery, there was no disturb-
ance of Mr. Cook till a ^od while after Char-
nock's trial ; and Mr. Cook was so far from
being sensible, or conscious of any guilt, that
he never aliscondod, but continued for three
weeks in his father's house, where he was
taken by a messenger. Pray, 31 r. Peachy,
will you tell my lonl and the jury, where Mr.
Cook was taken, and when, and by whom P
Peachy. He was taken at his father's house
by a messenger, about 7 o'clock in the mom-
ing.
Sir B. Sltozcer. What day of the week was
it he was taken?
Peaohy. Upon a Sunday morning, in his own
room, in his father's house, at 7 o'cU)ck in the
morning.
fSir B. SUmer. Did people come to him as
they vs^d to doP
Peachy, Yes; tad h# went freqaently
29
371] 8 WILLIAM III.
mbrond u lie used to do, and did never abscond
from his fathcr'i bouse.
Herj. Darnall. Pray tweai;^r. Treganna.
[Which was done.]
Sir B, Shower, Mr. Treg^na, pray do you
remember how Ion? after the plot broke out
didyou see Mr. Cook ?
Treganna. AfW BIr. Chamock's trial, a
week, he was at my chamber ; ailer the plot
broke ont, he was concerned in a trial at Win-
chester assises, upon an issue ont of Chancery,
Mr. Nichoills was the cleric in court, and went
down 40 manage it at the assizes ; and Mr.
Cook«ame to me a day or two after Winchester
assises was <nmr, and asked me if I had any
news from the assizes? This was long after
the plot broke out: and I remember particu-
larly, that I saw him twice after the plot was
discovered, a| my chamber.
8ir B. Shower. Swear Mr. Nicliolls. [Which
was done.] Sir, pray will you tell m v lord
and the jury, what you know of Mr. Cook's ap-
pearing abroad alter the plot was discovered ?
NichoUs, I was sent down to the trial: I
was present, and did attend at two trials indeed,
and I suppose baron Powis may remember
that I attended at two trials at Winchester
Trial of Peter CooJt,
[378
Baron Powit. Possibly yon might, Sir : I
ouinot tell all the attendance at the assizes.
IficholU. AufI after my return from Win-
chester assizes, Mr. Cook was with me several
days, both at my office and chamber, and at
his father's office : and I roroerobor particu-
larly, that he threatencil me that I was in
trouMc when I was at WinchcMtcr, and there-
fore I riMncuilicr it very wf*ll.
Sir il. ShoTin-. Mr. NiobolU, you know Mr.
Conk verv well ; pray what areliis morals ?
Sicholh, U|Mm occasion of the cause in
olianrcry that went to trial, I have had the
knowU*«l{ve of Mr. (^ook (i\e or six years; I
alwa}s MievtHl him to he as temperate a man
as «^ IT I met with : I thiuk iu live years time
I waMiiot aUivoouet* with liim in a taveni.
Sir li. ^hoiifi\ Did you over hoar him
swear ?
Kii-hoth. No, never ; nor vent a curse : I
ln^liete he dnuik an little a» any man, and was
a^giMlly a mail. I niMcr heard him v^vcak a
liiul Wiiinl.
Kir II. ^i>;.(''*. I low do you know that. Sir,
thai he was kh t;tHlly a niuii .-*
SiihoK'f. l'|Hni oivaMoii ot'ilii;! cause* I wa<«
urieral Iiihcn at Mr i^lileii fookV, ami at Mr.
i 'iHik'ii loilt^iiic* there, and we wt*re to :^i alHHit
huMUe.Ns. iiiitl alU'r he wa*^ ilrcNSinl. lie has
luade me %iuy white he went into \\i% cli^scl
.mil \Mt\ [\\s pi-AverN. Aiul he told ino I'lirtlier,
llml lie never went out of hi* lather^ »Iihm>
tntliooi sA^iiijf his pra\ei\; iuul 1 ««.ns foretM
III mUw M ilie diHir «%hile he |h*i t'oriiuHl \\\s iK-.
%oliuii«. ti«lir loUl uie. .ind I Inflieie he Uul.
Sim I l\.'s!i \ow.i«\ IoiaI, we will call
Hoitie oili«M niine«««'« to puw«> hiw |i>Hiil alTtv-
liOK loliKroitiiiM , hoM he t^Nitiuuiul} desired
vueevM to ilie tliHt, and itf ihiiarmv.
Sir B. Shower. So that really he had an
aversion to it. Swear Mr. Hamond.
- [Which wtt done.]
Seij. Darnall. Pray, Sir, will you give an
account what yon know of tlie prisoner, ooo-
ceming his (judgment, and concerning h^ bm^
rals ?
Haraond. I have been for some time ac-
quainted with Mr. Cook the prisoner at the
bar, and to the best of my observation, I alvaji
took him to be aoonseientions man, and I hais
heard him declare great detestation of a Frank
Ibrce : and three or ibur days before be WM
takeu into custody, 1 asked him what hehsHd
of intelligence? He said he heard what wis ■
the pubhc prints, and heard no more, and koiv
no more ; and he had a great abhorrence of the
conspuracy, and thought it a very monstitQi
thing. I never beard him speak a disreepssl-
fiil word of the Sing's person or govemBMH
in my life. And 1 say a|g;ain, I have hmi
him several times declare, in common csnnri
sation, that he had an aversion to ftmk
power, and he had a dread of it
Sen. Darnall, What have you bctrd hia
say about our fleet, or army * ?
Hamond. My lord, I have heard him ve^
much wish prosperity and suooeis to our fleet
Jnst Rokeby. What fleet, pray, Sir?
Hamond. li> our fleet, king William's fet
against tfie French. Things to thispnrpeie
he frequently said.
Scrj. Darnall. /Then swear Mrs. Hnt
[Which was done ; but she was not ezanuDsd.]
Sir B. Shower. My Icrd, we leave it beif.
Bnt I must beg the favour, thkt if they give
any new evidence, and there be occasioo, we
may have liberty to answer it. And I hafc aa
uhservatiou or two to make when the erideaee
is over.
At I. Gen. My lord, if they have done with
their evidence, I beg leave to observe, thsl
there is something arises upon tliat evidewe
that will give us occasion to call a witnces sr
two more. My lord, the first witness wkicb
they called was Edwards, and he is ui ciulidy
uiMui sus|>icion of high -treason in Newgiie^
and he gives an account of some diaoonrse theft
he had with Mr. Goodman ; and for ths!, H
will be necessary for us to call Mr. POrter aj^
and Mr. He la Rue, to shewthattbis EdwMb
the witness, as he is committed for anB||jfliM
of high-treason, so he was in the cuuepiMy
for the assassination ; he was 'one in toe H
. that was brouglit back by Cranbanie flea
I >lr. Chamoek to captain Ptorter, as OBt rf
, i'hamock's men. and he is in custody ftrit
Then as to the other matter, thev have oM
three witnesses to prove, that Mr.
«« u> not iu this place at this time. The i
indiH'd opened it, that he was not at the t— ^_^
till atler my lord of Aylesbury and Vf M
>lvmt{^imery were gone away ; InH thor ^
• ^ _ ' ' - —
* S(v in this volume, p. 1, sir Jdin fMrfll
' Case, and the other caaea refeRvd to ■ iii
Note there.
'31
Jbr High Treason.
A.D. 1696.
[37*
nee goes further. That he was not there at
: ami the master of the house says, he was
t there to his koowletlge at any time. So
a if their evidence prore any tbing", they
ore that he was not there at all ; they (io
A, remember that tliey saw him- there : so that
e qnestion will he, whether Mr. Goodman
u there at that time? And it will he neces-
\ry to call 31r. Goodman a^ain, and Mr. For-
T, to confront these witnesses, who will tell-
tni when be came in : and particularly as to
IT lord of Aylesbury, that he went with him
Tihe stairs -bead, and my lord would not let
jm q;o further, but he went back again when
ay £rd of Aylesbury wont down stairs. We
iill begin with the witnesses, as to this Ed-
vtrds. Swear Mr. De la Rue.
[Which was done.]
Mr. C*myer$. Mr. De la Rue, Pray do you
Mw Mr. kdwards that was here?
2>t la Rue. He goes by several names ; I
now bim by the name of Douglas : and last
Maoilav I came into the Press-yard, and sa-
bted him by the name of Douglas, and he said
ke bad taken his own name again, by which
ke was known at St. Gerroains, and that was
Edwards or Richards, as I remember, or some
■Kb name.
Mr. Omyers, When was be at St. Germains ?
De /a Rut. About three or four years ago.
Mr. Conytn, Pray look upon him, see if you
kiow bim.
De la Rue. I know him very well, there he
rtMds, tliat is the person in the black wig ; he
m reputed at St. Germains to be my lat^ lord
DHodee*s chaplain.
Att. Gen. What name did he go by at St.
Germains?
Dela Rue. I cannot very well tell: but
kaid he bad taJcen his own name a^ain ; and
Ithiak he said it was £dwards or Richants.
Mr. Conyers. Did he go formerly by the
■ne of DfHiglas ?
De la Rue. Yes, here in England: Mr.
IWter knew him to go by that name.
Alt, Gen. VV hat else do you kno'i^' of him ?
IkU Rue. The list that Mr. Craubume
fitrried from Mr. Porter to Mr. Charnock, and
^hicb be brought back again from Mr. Char-
Nek to Mr. Porter, had in it, among the other
tisMs, the name of Douglas, which I under-
Kasd t«) be that {gentleman.
Alt. Gen, Did he go by that name at that
ine ?— De la Rue. Yes, be did.
Lb C. J. IVebjf. Pray repeat that again, Sir,
bst we may understand it, and see whether it
« evidence.
De la Rue. Why, Sir, the list that Mr. Cran-
WDe brooght from Mr. Charnock to Mr. Por-
V, at the toot of the list which Mr. Porter had
■otto him, there were other names written,
■ I believe, in Mr. Chaninck's hand; and
laang those names there was the name of
[^Bogns, which I understood to be this Mr.
Edwards, as he calls himself. And moreover,
vhcD Mr. Porter went out of tewn, going to
loctort Commooa 1 called at Mr. Charagok's,
and he had a great deal of company with him,
four or five troopers, and among ihe rest this
Edwards or Douglas was there sitting by him.
Here is a gentleman that 1 see upon the oeocii,
I think he is a Scotubman, that knew him at
St. Germains as well as i. I think his name
is Macdonnel.
Just. Rokebjf. What country mon did you
take this Edwards to be ?
De la Rue. A Scotchman, an.l chaplain to
my lord Dundee tliat was killed in Scotland.
Seij. Darnall. Did you see Uiis gentlemaa
in France, Sir?
Macdonnel. I- never was in France in my
life.
Alt. Gen. You cannot ask him the ques*
tion : you know it tends to make him eithei^
accuse or excuse himself of a crime. Pray,
call Mr. Porter again. But in the mean time^
till he comet, we will examine Mr. Goodman,
because he is here. Mr. Goodman, you were
by, and heard what these drawers said con-
cerning your being at the Old- King's- Head in
Leadenhall- street that day. Pray, give an ac-
count when you came in, whether you saw my
lord of Aylesbury, and what passed between
you at my lord of Aylesbury's going away ?
Goodman. Mr. Porter bniujEiflit me up ; and
when I came in tliey were all sitting ; and after
salutation I sat down : and when they had
consulted some time, they came to a resoTutiony
as I have told you already. The fellows are so
far m the riffht of it, that my lord of Aylesbury
and my lord Montgomery went away first ; for
I took my leave of them at the head of the
stairs. Says my lord of Aylesbury to me. Pray
avoid ceremony, we will go away privately as
we came, in a hackney-coach. And as to the
master of the house, who says, he does not
know me, 1 have dined several times there;
four or five times with sir John Freind ; and
one particular day above all the rest, I remem-
ber I was not well, and I went down stairs to
the bar, and said, 1 pray, can you get me a
little brandy ? He said. Yes ; he would help
me to some of tlic best in England. And he
brought me up some which 1 liked very well \
and tliinking he had a ((iiantity of it, 1 asked
him what 1 sbould give him a gallon for a
parcel. But he said, he had but alittle: and I
am sure he has seen me there five or six times,
Att. Gen. Then set up that muster of the
house, Cock, ag^in, (which was done). Come,
Sir, you hear what Mr. Goodman has sworn,
and mind it ; you are upon your oath. You
said just now, that you never saw Mr. Good-
man before.
Cock. No, upon my word, Sir, I do not
know that ever I saw him befoi-c.
Alt. Gen. Do you remember nothing of his
being with sir John Freind at your house?
CSck. No, upon my word, Sir.
Att, Gen. Nay, you are upon your oath.
Nor do you know nothing of your giving of
him brantly ?
Cock. No, upon my oath, 1 do not rtmem*
ber any such thing.
375]
8 WILLIAM IIL
Trial of P0fer Cook,
[37»
AU. Gen. That is a very safe way ofsweai^-
in^, I profess.
Mr. Confers, He remembers the particnlar
time when he was sick, and yoa offered to sell
him some brandy.
AH. Gen, No, he asked bim what he should
give liiin for it a gallon. But, Mr. Cock, did
J^ou ever see GoMtcnan in your house since my
ord of Aylesbury and they were there P
Cock. No, ii|)on my word, Sir, I did not :
and I never had but two ^lk>ns of braiidy in
my life at a time : and 1 never had any cask,
or any things of that nature, to s^l any out of.
An. Gen. Who used to be with sir John
Freind at vour bouse ?
Caek. There used to be Mr. Rirlifardson,
and justice Cash, and c<doiie1 Cash.
Goodman. Mr. Ridiardson was there that
day : 1 eouki almost have remembered the par^
lieokir day, but I cannot be positive ; only we
were in tlie same room where (be consultatiott
was, at the further part of the room.
Just. Rokeby. Yon friend, the master of
tbe house, yon hear what Mr. Goodman says:
he says be was with sir John Freind at your
bouse, and being not well, he asked for some
brandy, and yon told him, you would p^e bim
•ome*of tbe best in En^and. And he nro-
DOunded to you then to sell him some of it ;
But it seems there was no bargain niatle. Do
yoa remember an^ such thing df one that was
with sir John Freind, that spoke of buying of
brandy when he was sick P
Cock. No, upon my won!, I do riot.
Att. Gen. Tiicn set np Mr. Porter, (who
stood np). Pray, 3Ir. Porter, look upon that
man in the block |ieruke ; what name did he
use to go by f
Porter. 'He used to go by the name of Ed-
wards.
Att. Gen. Had he any other name ?
Porter. Yes, Douglas.
Att. Gen. He has so many names, lliat we
do not know wliicli is bis true name. Mr.
Porter, pray what else do you know of bim
touching his lH.'ing concerired in the conspi-
racy?
Porter. 1 know not any thini; of my own
knowledge; but his name was put down'in the
List that Mr. CMiarnock sent uu? of his men,
and Mr. De la Kiie read his name there.
Sol. Gen. Mr. Porter, you were a witness
upon tlie trials of sir John Freind, and sir Wm.
Parkyns ; did you give evidence that Mr.
Goodman was in the room at the same time
when the consultation was?— /V/rr. Yes, Sir.
Att. Ccn. Well, you hear that these peoptf^
have sworn, that Mr. Gomlman did not come
till my lord of Aylesbury went away; nuy, in-
deed,'that he was not there at all. '
Porter. My hud, upon my oiith lie was
there l.rfore my lord Avlesbury went away,
and Mr. Gotnlman howecl, and toek leave of ray
lord as he went out of doors.
Att. Gen. What time did my lord of Ayles-
bury go away ?
Porter, It was about an hour and a half,
or two hours after dinner, and be wa« in the
room when my lord went away, for be took
his leave of him at the door.
Mr. Coofper. Do you rMnember tbe man-
ner of Mr. Goodraan*8 coming in ?
Porter. Mr. Goodman sent up bis milbefo
me, and 1 told the company, and promised fiir
him, that be was a very honest man, and much
in king James's interest ; aad then with Ihnr
consent I went down and brought bim up.
Just. PoweU. How long time do you tbmk
tlie^e was between Mr. Goodman's coming in,
and my lord of Aylesbury's going away ?
Porter. I cannot tell that, I do not remem-
ber exactly bow long it was.
Just. PtmwlL Was it a quarter of an hour,
or half an hour?
Porter, A great deal longer, fur we bad
discoursed of tbe whole business after Mr.
Goodman came into tbe room.
Mr. Confers. How long were they Ibere
after Mr. Goodman came in ?
Porter, It was very near two hours after
he came in, before thev went away ; the^r did
not go away till, six o'clock, and he came in it
four, as bear as I can remember.
Att. Gen. Then, my lord, we have done.
Sir h. Shotcer. Then 1 beg the favour of t
word or two, my lord. May it please your
lordship, and you gentlemen of the jory, 1 am
of counsel in titis case for the prisoner at tbe
bar, and 1 must beg your lordship's patienof,
and ybnr favour, gentlemeii, to naske a few
observations upon the evidence that has been
given ; for we humbly insist upon it in point of
law, that here is uot sufficient e\ideHce before
you to convict the 'prisoner. You are, geu-
tleuieu, to liave res[)ect and regard to your con-
sciences and the oaths which you have noir
taken, to give a verdict, and make true deli-
verance between the king and the prisoner;
3'ou are not to go according to your own pri-
vate ofiinions, nor according to public facns,
nor accordinir to common report, nor accord-
ing; to the verdicts iu other cases, nor accord-
ing to t!'j confessions or dvTng speeches of
criiuiuals uho have heen executed, whether
made by themselves, or by others for them, but
you are to go hy the testimony of credible wit-
nesses, and if \ou have not the evidence of two
i credible witnesses before you, wiv lords the
jud^^is will inform you how the law stands.
[That liy tl e statute of Edward the 6th, and the
i neu stiitntf for trials of treasons, there must bft
two witnessef! to prove the prisoner guilty of the
' oi crT net of the treason that is laid in the in-
I (lietiuent ; and whether there have been t«r6
; ereilible witnesses produced before yoo« is tbe
' question that you are to consider upon yofit
I oath and conscience ; that is, whether you are
! satisHed here be two such as the law required.
The question is not merely wliethi r Mr. Cook
be guilty, but whether in your conscience^ he
be legally piovetl guilty ; whether there be
evidence to satisfy your consciences, accotll-
ing to the laws ot' the land, that be is guilty ;
aud we insist there is not ; and tbefefora 1 bij^
7J
for High Treaioru
ire to ffcspitiflate what hat beeo sworn
ainst hiro, that \tc may see how far it
ichc«, and wherera it is deiecttre.
Geotlemea, Mr. Porter he twean, that abont
e beginoitigf or middle of May, he cannot tell
hich, there was this meetini^ at the Old
in^s Head Tarem in Leadeuhall street ; in
bich, 1 would observe to 3*ou, that he con-
lift himself to a certain month ; the reason is
!ry plain, and therefore I a^kccl him whether
was not in Aprif ; for if he had said it had
■eo thru, thera had been no dangler to the pri-
mer, because of the uct of indemnity, therc-
>re he was careful to i)^ it in May ; and he
•fitrid not by it in June, for the tenth of June
I sfamouH day ; and then, or soon aAer, Xew-
ite had him ; he was confined there for u riot
a tbat (Uy , and so they have rc^tniinc4.t it to a
nrth, ami the only mouth that he is capable
f^vrcirin^ to, as to any act done the last 3-car
i1 thfy came in January to the nKsasiiiiiatlon
*hK, n'hirti the prisoner fs not accused to have
ad any concern in ; but it should seem lie
looot tell what day of the week, or of the
amrtb, but about the beginning or the middle
f May f-ight persons dined at this place, and
hen a'fter ihntier >lr. Goodman came in, and
bey discoursed about this matter.
Fiist, gentleineo, we insist upon it, that it is
«j improbable that English Protestants of
Bots conversation and good morals sliould
iltree, as be says, to send such a message to
it late king, to invite ovex a French Popish
irrce ; we may easily see the horrid and mis-
iievmis consequences that Wf 'uM have followed,
Qch as must aifect every Englishman with a
:ooa-m, so that it is improbable a man of vir-
ae and piety could engage iu such an enter-
inxc ; and if it be improbable, you will never
idieve it, unless the conv iction or proof be ir-
emtiblc : and if you have any other reasons to
iiktrustthis man's truth, then we hope you
till ;ro unun the siile of probability ; oud not
tt popniar prejuilice, common fame, or auy
lung else but legal and undeniable evidence
a?e the ascendant over you. If you are not
iilitlied that Mr. Cook did assent (as from the
iaracter of the man it is not probable he
ibiuldl to send Charuock into Franco, to per-
mk king Lewis and kini; James to send ten
lottsand men to invade our country, then he
ihotffuiUy.
In the next place, genllfmeu, he is not guilty
•etty in the eye of the law, if they have not
»o witnesses ; ami for t!iat we say you have
HI one that is to be believed ; and if you have
Mane that is to be believed, that in law is but
He, and consequently my client is not guilty ;
• die king's counsel agrr^e, that if there be but
m tritoess, be cannot be convicted, the law is
jknili the case. Now to make it out that
Mrc ii but one witness at most, we have offered
yvativcnl objections, and made Ihem out by
nUoMe, against the testimony of Mr. Good-
>Mi ; tliat be it boI a person fit to be believed ;
Jiif he bt out of toe case, then does Mr.
ran Hiftd ilone, and ill will amount but to
A. D. 1«M. [378
one witness, suppose it should be granted that
his testimony were trde.
First, we have read a record of crinviction
against him, of a crime, one of the greatest
next unto treason, that is known in our or any
other taw. That he hired a man to |M>isou two
dukes, branches of a noble family, to which he
had such great obligations, as all mankind do
know, ami he himsctf cannot but acknowledge ;
and if there were not that aggravation in it, of
his obligations to that family, vet to lie in wait
to mupffcr and (Mison, is such an offence as
any asj^e can seldom shew the like. And the
olijccf ion U not so very easily answered as they
wouki have it ; nor can it be so soon passed
over as thc}' think, by saying be is a whness
uf a confederacy with which the urisnner is ac-
cused, a rriinc greater than the thing objected.
It is true, none can bear testimony in such a
business but he that is a party : fSut, we say,
if these persons who come and set up them-
selves for witn^ses, were not probi HonnmtM^
and did not appear to be persons of indifferent
credit between man and man, and did not stand
impartial in tlie eye of the world in other re-
spects before, then they are not to be believed,
as to what they charge themselves and others
to be guihy of: Now, if Mr. Goodman stand
convicted of such an offence as this that is al-
ledged against him, though he is jpardoned by
the act df parfiament, or satisfaction acknow-
ledged upon the record, though it be even the
very next term, yet that does not purge him
from the infamy and disgrace, or from the im-
putation of being concerned in so villainous a
design. It is ini|K>ssible that he should be a
good witness that would be engaged in such a
matter, es|}ecially when we hare those various
witnesses, and such a concurring testimony,
that what he has sworn is absolutely talse.
Gentlemen, if there were nothing but his own
testimony in the case, there would In; no ques*
tion at all in it : And as to capt. Porter'a
testimony about his being there, we have pro-
duced three witnesses, who, if tbey l>e of credit,
then Mr. Goodman is not to be believed, but is
fals»itied throutrhout ; for it is not the question,
whether Mr. Cook went a** ay b«fun* the con-
sultation and the resolution ; for if my lord
of Aylesliury or my lord Montgomery went
away, Mr. Goodman is falsiiied in that, and
consequently 3 ou ought not to belies e him in
the rest; for he actually s\% ears, that uiy lord
of Aylesbury, my lord .Monti;oiiiery, and,those
other gentlemen, were all presM'ot, and at the
consult, and did coiiseut and agree ti> the Ue-
solution, by using these wunls; Yes, you
may; Yes, you may. Now, we say. there
are three wunesscs that swear. That my lord
of Aylesbury was <4one liefoie he cam** there.
I do not care whether he came tlu're or not ;
that is not material : For if tiier*; wi n* uob«Miy
there when my bird of Aylesbury was there
but those that Mere at dinner, then Mr. Good*
man was not there at auy such consultation,
as they would insinuate was at that time, ia
that place, and that company.
My lord» we have proved to you Mr. CookV
4bbarrence aod declaration, which we thiok;
nugb( to go a grcut wuy ia iaiisfaction of his
iono^encv, at least to induce you to the favour-
able «ide; for, geotlemeD, you are not broui^ht
Itiibrr to codvict a man only, tut to try and
exaniinei him and it is jour dut^* to acijuit, as
well as convict, according as the evidence
stands: Jt is your duty to go aceording^ to
your coriBciencc*, and to declare nheilier he
he guilty or not jgfuiltv, upon lUe evidence you
hive bt'fore you : Vou are to ej^nmine the
truth of the fikct in all ita drcunistanci'S, and
ttpon your own eooscieneea to de<*Kire wbe*
the I he U guilty or not guilty ; now we pro-
pose it 10 yoUj and suhmtt it to your coa-
scteuce^^ thdt here are three witnesses that
sneak upon their outh», a^inst whom there h no
ehjection thai crer they were guilty of lyi^Jf
in wait to j^Hiisoo any body, nor in any plot for
an asiassioation, uor any conspiracy for in-
viting an invasion from Fraoee, nor any other
«i»ieetioD a^nat them hut tbey stftud upjrj^ht
in tbe face of the world, and they tbrte swear.
That be waa not there at that time. The an-
swer, that we expect, h^ That be tniig^ht be
there, aad they not see bim: aod because
it was poNibte he mi^ht be there, and they
not see bim, tlierefore it is no cridence that
it 19 su : that's no objection ; for vou will
take it as the nature of the thing will aiford,
be no better evidence than this; that they
mod the matter itself allow. Now there can
went in and out continually ; the drawers, and
the CMiBter of the house nve or six times hira-
ielf, were in the room, and tliey say^ there was
no fiuch [lerson there. Wljy then it is very
improbable, if not impossibttv that any sucli
man should be there. Tlie one swears, he
eame doi%n from my lord of Aylesbury just be-
fore he west away ; and aootJier aays, be fol-
lowed bira out of the room ; and the master
says^ that he met my lord of Aylesbury at the
stairs bead. Alt which falsifies Mr. Goodman
in that [larticuhr, that he was with mv Imd of
Aylesburyl at tlie siairs-head, when lie went
^way. These are incompatible ; and if we
falsify him in any one thiag, he is not to be be
Uevcd in any other.
Then, g-eutleraen, we offer to your conside-
ration an answer to another objection: They
aay these witnesses seem to swear, that he was
out there at all. We are not concerned whether
he was there afterwards, or not: If you are
satisfied, thai he was not there, as our wit-
ii«gMfl swear, while my lord of Aylesbury was
there, that's enough. But then they make
an objection, How corner the muster of the
bouse to remember my lonl of Aylesbury's
ICoing^ away, more than any Innly tlse ? Gen-
llemen, you kuow the nature of the thing
shews^ not only that it was more probable the
master of the house should make hts observa-
tions near the time of dinner, rather than after-
wards at nig-hl, when there is more hurry:
But it is more probable he should take notice
af it frOiQ the quality of the person, firom the
creoii^
m
Trial afPHer Cook,
discourse he had with Inm * i ' bit^^
wiue, which was a good >. e»b%j
Tintner^s bietnory, it bcin;^ ^ maur r m int<i\y%
trade^ aa<l that nii|^bt ruitke him call it to mind.
Therefore, gentlemen, we think these thre^
witnesses stand tVee aud clear in their credit ;.
and l»eiui; so, are iaconsLrtent with Mr
man's testimony ; and we ho|ie in ^av
hfe, the credit inchncs on their sJde,c»p4 ^
when the tjuustion i*, whether a man siiaii~S
executed i'or ueaswm who never Btjd for a, ythm,
was never charged with any treason or trc4<^
sonable practices before ; n»y not »u much m
with any particular crffue or immomlity : Am
whether three wilneiises sbaii l>e t>elievi(
against whom there is no objection, raihc
than two, against one of which there are
objectioos.
My lord, we are not now debating or ati
theeridencfl of the plot, orarraigiinig iheforoie!
judgments against the conspirators that haf«
suffered ; but, gentlemen ^ we are putting yott
upon a serious enquiry, (as God and your owl
consciences shall iodine you) whether oui
client be guilty or not guilty upon thi»evideciee|
that is, whether Mr. Goudman swears true, of
not. We hope tlmt we have giren yuu suffiw
cieut satisfaction, that upon Mr. Goodmaoll
part the evidence is insufficient ; aud w©
you will accordingly tiud our cUeut not
Alt. Gen. Jf Mr Cook have any
say himseli, I desire be may say it oow,^
fore »ve begin.
Sir Ik Shouer. No, pray go on. Sir.
X, C J. 2>cAy. Mr* Cook, would yod up
any thing your»e1f, before the kmg'a
sum up ?
OkfL The liltle I have to say, nay lord, f wit
speak now, or by and bye which yo* please.
L. C J. 7reAy. You most do it nitw, U
cause aller thev have summed up, there is IM
thing more to be said by you.
Cook. My lord, I thank God, t have lived
life, 1 hope, as good as any man, and htfl
often receifed the blessed sue mm en t ; I hat|
done it constautlv, and shall do it speedUy^ bl
the grace of Gon, as soon as I tiau nave a ml
nister couieto adiiii»i:>ter it to me. I did uflfer
to my own father, when he came to me« ai
told nte. If I would confess this thing I eboflli
not come to trial : ! told my father, I hoc*
not for ten thousand worlds take away l\
blood of an innocent man to save mine. 1 ibiflk
God, 1 am in a very good way to die ; I hm
for at least this last year, frequently rcceivi
the blessed sacrament ; and how I have liv(
every body in the court tliat knows me can ^
my fife and conversation has been aa r^gtilir
any man^s, aud L am as ready to die to
if occasion was fbr it, (I thank God)
one ; 1 will receive the blessed SacratDeciti
it I and it is not for life that 1 would do
thing that is wrong or unjust : I do love
nation, and I love the quiet of the nation ;
never was for disturbing the government
now is ; and I ever waa against foreign ~
or au invasion, for I never thought of on^
5lj
Jor High Treason >
A. D. 1696.
[382
ard of it, btit with abhorrence and detesta-
« : and I do assure faithfully, I should be
rry to disparage Mr. Porter's evidence, be-
luse 1 would have every body that was con-
TDed in that horrid and barbarous crime to
ifier ; in God's name, let them all suffer. I
obk God, I never knew any thinif of it, nor
r a French ioTasion : and I wonfd say more
r it, but that I would not hurt Mr. Porter's
ridtnce, whose discovery of that bloody busi-
em has dune so much service. As tor Mr.
ioodmaii, as I hope to receive the blessed sa-
rament, and may I perish, when I do it, if 1
peak an untruth ; 1 would not for any thing,
», not tor the good of my country, have inno-
tat Mood spilt; I wouM lay down my life to
unt my country, hut I would not have my
iood be lightly lost ; and how little a man
•oerer I am, my blood will lie as heavy upon
lie nation as any the weightiest man's can do.
do not (^ ^ubt your lordsnip's justice, nor tlie
ury's ; hut 1 pray, my lonl, observe, though it
i liflual not to own things at the bar, yet do not
iiike thn denial as of course, but out of truth ;
lad 1 do assure you, in the presence of the
rbole court, if I should suflW for this, I must
a my bst moments either confess or deny
•WKthing : and, I say, I do assure, in the pre-
nce of the whole couit, and 1 will take the
ikMed sacament upon it, that I must, at my
littdi, deny this whole matter, and that ever 1
ii] see Mr. Goodman at all there ; 1 do not
ikiak I saw him : I do not remember I saw
Mr. Goodman at all, except once in Germain -
iicei, when the coach broke, and that must be
bst in passing by neither, and he woulil have
ksrt or killed the coachman, and we kept him
fisia it ; and I walked with him half the
Iciftfa oif Germain -street, before I knew who
Ir. Goodman was. If ever a one of those
Ifademen, that are men of credit and honour,
cia say 1 was any ways so inclined, or that
1^ ever saw me, or 'knew roe, that I ever
m^% a pistol or a blunderbuss, or the like,
■17 God sink and strike me ch*ad ; and the
Med ncrament which I intend to receive lie
wij corse and damnation, if 1 knew of king
AuMsTs eoiningr, till after the whole town rang
tfit: I bail so liand in the invasion ; and, be-
fiki my abhorrence of introducing foreign
fase, 1 desire yonr lordship and the jury to
tttider the drcumstanoes of my case, that I
Mhtta very snail allowance from my father,
«i tberefbre it is not probable I should take
tyiB mt 10 join with my lord of Aylesbury,
<id By lord Montgomery, and those other
VMkmea to send Mr. Chamock into France
ti ivrile over a foreign force : and I call God to
*ilM» I bad no band in it 1 beg your lord-
jNpPs pardon for all this trouble; 1 would not
||R Mr. Porter's evklence, for the reasons
^ 1 have told you ; but this is for my life,
*>i I 4o Mt so much value that as I do truth
|li«ocstity ; and I shall receive the blessed
fMwnl, if I die, that I never did do so.
Md 1 mntr did take the oaths, nor did I
tbey were never
offered mc ; but I would take the oaths now if
they were offered me. My lord, I beg your
paraon for this tnmlfle.
L. C J. Trebi/. Hare you done, Sir ? Have
you said all you would say ?
Cook. Yes, my lord.
L. C. J. Trebit- Then, you gentlemen of
the king's couuHel, will you conclude ?
Sol. Gen, May it please your lordship, and
you gentlemen of the jury, I am of counsel in
this case for the king, and 1 could liavc been very
elad this gentleman's defence that he has made
bad been stronger than in truth it has been :
and I should have been very glad too, that hit
counsel had been able to have niade it better for
him ; but that he and they may be satisfied, as
much is done as the case will bear ; they have
had all the liberty in the world to make uis de-
fence they could desire, nay, more than in
strictness could be allowed them.
Gentlemen, our evidence is very positive
a^fainst the prisoner at the bar, and for tlie
highest crime that the king's subjects can be
guilty of, by the confession of the gentlenuin
himself and of his counsel. We have,,! say,
two positive witnesses against him ; they say
they are not legal ones : I must own, if we
have nut two witnesses-, we have never an one ;
for whatsoever falsifies Mr. Goodman's testi-
mony, falsities whatsoever Mr. Porter has
sworn. Now, the evidence that Mr. Portur
has given against him is this: he says,
there was to be a meeting at the King's- head-
tavern in leaden -hall -street, and there they
coilsulted of the methods to bring back king
James hither ; and it was thought the best way
to send to king James to invite the Frencn
king to send 1,000 horse, 1,000 dragoons, and
8,000 foot, to land here in this kingdom, where
they would meet him with '2,000 horse. They
pitched uiMMi a verynroiier messenger, Mr.
Charnock, a person that has been attainted,
and has suffered for higli-treason ; he was to
be sent into France upon this errand ; Mr.
Cook, the prisoner at the bar, was one of the
persous that were there at that time, and he
was consenting to this message ; and Mr. Por-
ter gives you a |iarticular token relating to the
prisoner, for he remembers the prisoner did
Kneel upon the chair, and leaned his elbows
upon the table when he conscntetl.
Mr. Porter goes further, and tells you, That
Mr. Chamock would have another meeting, to
know and see whether all the company were
of the same mind they had been : and, that
aOcrwards they met at Mrs. Mountjoy's house,
and there the prisoner at the bar whs present,
and consenting to the same thing : thereupon
Mr. CharnocK went into France, and came
back again, and said, the French king could
not spare so much force. Mr. Goodman ^ves
the same evidence that Mr. Porter had given :
It's true, he was not at Mrs. Mountjoy's tavern,
but be tells you withal, he spoke with Mr.
Charnock when he came back from France,
and Charnock returned him the same answer
he did to Mr. P^er, that the French king
S87J
8 MILLIAM III.
Trial ofPder Cook,
[W
and theii Ibey pursued tliii consultation, and
came to a resi»ltitioii to send Mr. Chamock
into France, and the loessa^ was agfreed upon
niiicli he i^outd carry ; and he was to |^u to
the late kio^, and solicit liiiu to obtain 10,000
soldiers from the French kin;^, whereof 8,000
ahould be loot, 1,000 hoi-se, and 1,000 dragoons.
These ivere to make up tlie 10,000 men to ui-
vade this kingdom. And they resolved also,
when this force should land, they should meet
and assist this invasion with a jomt force, that
should consist of 'i.OOO horse. And to ac-
quaint and assure him of this, was the message.
But, be says, that Mr. Charaock was very
cautious in it, and woukl not presently go upuu
this errand, but he would have further assur-
ance that they were in earnest, and would make
ffood what they did send him to propose, there-
K>rc be would have a secoud meeting ; and a
second meeting was had, and that was at Mrs.
Mountjoy's taverui and there they did renew
the same rerolution; and thei*e were present
my lord of Aylesbury, sir William Parkyns,
air John Fen wick, sir John Freiiul, Mr. Char-
nock, the prisoner at the bar, and himself; lie
does not know or rfnieinljer whether my lord
Montgomery, or Mr. Goodman was there. Uc
■ays, Mr. Chamock did accordingly go into
igly
France, and liv did rriurn and bring Wk king
James's thanks to them, hut their desire conld
not be complied with ; and he had his share of
the compliments.
Now comes Mr. Goodman, and he says,
That about the same time, viss. Mid-May, Mr.
Poller acquainted him, there would he a mceU
ing of sonic of king Jamcs*s friends, at this
tavern in lieadcnhall-street. He says. That he
did tell Ml'. Porter, he duubteil he should not
be there at dinner, but he would come as soon
as he could utWr dinner ; and according to ap-
pointment, he did cHinie after diiiner, and there
was this consultation an J rcsolulion that Mr.
Porter speuks of, and says, that Mr. Charnock
aflerwards told htui, he had be^Mi hi France
with the late king, and broiiL^^ht back tiie same
answer that Mr. Potter sjieriks of; and he had
the honour of thanks from the late king too.
Cieutlenien, 1 must observe one thing to you,
which does ^'•o very much towards the con -
lirniinq;' wliut these; ivitni'sses say, and that is
the agreeuHMit in tlieir testimonies, though tlicy
were examined apart at the desiie of the pri-
soner: You will iiiid they ai-roc in lliesc seve-
ral circuni^iaii<'( s, in llnrtime, llia« it was this
time l\vel\ v.- months ; in the plae«', that it was
at this lu\ein ; in tljc number ot pci'sons that
werellitie, wliicli v.as ei;,ht btloie Tilr. tjnod-
inan cinu in ; in the nunilior ui' hnr.sc, fool,
and drairoons tint v. ere to Ite liiOiiL;hl ihm\
France, and in tlifsc horse tlidt \\l\\: Ki mtei
Ihcm here : f-iid besides, in those v/ordi of dis-
course upon the consult«iti'jn and the resolu-
tion. And tlicre is one ciieuinstance more in
which they do agree, and which is ver}- parti-
cular : 'I'hat \\\\Qn they came to deliver tlicir
consent to this message that Mr. Charnock was
to carry, Uic rest ii»at, aud 3k. Cook the pri-
soner did kneel upon the chair, and leaned apoi
the table. And tliis botli of them do apee ia
And after all the many queations aiked mthcii
separate examination, I do not find tliey iyi<
agi:ee in any part of their evidence. So thit
gentlemen, there can remain no qneatMn nw,
but whether these two witnesMa are um li
credit ? or, whether there has been opptndk
them any such evidence ai will make yo« k»
lieve, that (if not both) at least one of them kai
forsworn himself? Tney do prodoce nothiq
against Mr. Porter, whataoever may have bw
r reduced at former trials against his crait;
*erha|is what has been before has satisfied Ik
objectors, and there is nothing appears sgsiHl
his ci-cdit ; but he is not onlv a competent, hri
a very clear, good, credible, and tmdwifcid
witness.
But against Mr. Goodman they off
things, wliich they say amount to a vii
presnmption that he is not to be looked upoafl
a credible witness: And first, they proanoi I
recoitl of a conviction upon an infbranlin
against him, for attempting to poison l«l
noMe dukes : This he was conricted of, ai
fined 1,000/. and ordered to find snielies h
his good behaviour daring his life. But to thi
it is answered, that it appears in the same i*
coifl, that satisfaction was acknowledged of di
1,000/. and all the rest of the judgnMOt tki
very next term, and he was forthwith db
charsred, and that without paying the
which (it was observed) the prisoner's
said Mr. Goodman was not able to pay at thi
time, no more than he could S0,000/. iM
thereupon the king's counsel say, that the gt
vernment was convinceil that he was wroage
by a causeless prosecution, and the evidene
against him was found not to be credible. An
besides, ]^Ir. Goodman stands panloned by se
veral aets of pardons, as well as other snbfeoh
Then they produce one Edwards, who if'
prisoner here, and committed for suspictoo i
high -treason, and for treasonable practioa
he is, no doubt of it, a witness for all that: ft
thai is but wn accusation upon him, and doe
not take away his credit. He tells you of
di&TOurse that he had with Mr. Goodman, sd
that Goodtnun asked him when the prisooi
was to be tried ; and he told him he wouM b
tried such a dcLV ; and when it was asked will
it was for, it was a*is\vercd, Notfortheasiua
nation, but for sending Mr. Charnock ial
France. He asked then who were the wit
nessfs ar^aiiist him? 31t. Goodman said, Hi
Piirter and hiin&elf. And further said, tW
he unili.i^Dod that Mr. Cook had sworn agaisi
him (thougl. lie would give an account ofat
i h«(ly else) and had no panlon, and eithcrbj
I must hauj^, or himself. Aud then he taW
ii£;hi]y oi' the business of hanging, andssiil
was a foolish thing to lie hanged, tor all ^
people would say, was, that such an <i
hanged handsomely, or died bniTety. lij
itideed is a sort of discourse as if Mr. Gasdaij
did apprehend himself in danger fioialij
Cook'$ evidence 9 and yet I caoMtaaa tMi
d85j
JfiiT High Treiuohi
heowni (hiid cflnnotbutown) tliat Mr. Good-
man migbt go ioto the room, and lie not see
faiiu: BO that he has made a strain in his evi-
dence that it is mry little to be credited, which
was not designed so much tor the advantage of
Mr. Cook as for the adranta^e of souieuudy
else : and, in itself, it is almost an impossible
thing that it should be true, by what he offers
as the reason of his eridence.
But then. Gentlemen, you are to consider,
that all these three witnesses, if they swear
true, do falsify not only Mr. Goodman, who
iweara that he was there ; but they likewise
falsify the evidence of Mr. Porter ; and for that
1 1 asked Mr. Porter the question, Whe*
ther be did not give the same evidence against
drvJobn Freind? And if what he sweara now
be iiot true, neither was it true when sir John
Freind was tried, tor he was the only witness
at that time against sir John Freind, for this
meeting ; and therefore these men's testimony
tends to overthrow both %iitoesses as well is
one : and I must tell you, that if Mr. Goi.Jnian
be not a 1e^ witness, because he has sworn a
thing that is not true, then Mr. Porter is not a
good witness, wlio has sworn the same thing,
Tix. That Mr. Goodman was there; and then
\oa ought to acquit the prisoner, because there
li no witness against him at law ; for there is
the same evidence acainst Mr. Porter, that there
is jV^inst Mr. Goodman as to this matter.
'nieo. Gentlemen, as for the character of
Mr. Cook, they say he is a good English Pro-
testant, I hope he is so ; but it is plain, that
nligion does not vary the case : it is within the
reach of every man's memory that is here, that
the same things have fallen upon other gen-
tlemen that have had the same character, par-
ticolariy sir John Freind, and sir William Par-
kyns, who both said the same things, in the
same olace, that they were true Prote^itants of
the Church of England. But that is no man-
ner of evidence that will be weight against
poiitive oaths.
Kow, Gentlemen, it is fit likewise you sh'juld
reflect upon another thing: what is it that
ihould eut^age Mr. Porter, and Mr. Goodmun,
er invite either of those two ^ntlemen to gi\e
a false eiidence against the pns()uer at the iKir?
It does not appear that there was any injury done
hy him to them, to provoke them to it ; so that
itoonld be for notbhig but for the sake of truth.
It has been further said on the behalf of Mr.
Cook, that he abhorred the Frencli, and any
invasion upon his country, and tliv like : it is a
matter that is easily said ; and it has heitii said
b^ others that have been in tho same ]>!ace
where he now stands, that they hated all plots,
and they might punish them if ever they c;ji!p!it
tliem. But these are only sayings, and* notliing
dse. If there can be any constructions made
•fUic evidence given by these two witnesses,
that does not directly pnive the indictment,
Aea the prisoner ought to be acquitted : but if
there can be uo other construction made, hut
iNily, that there was a plain design to send
Cbamock into France to king Jameii to per-
VOL, XIIL
A. D. 1696. [380
made him to prevail with the French king, to
come and invade us with a foreign force : and
if our witnesses are legal witnesses, (as, I doubt
not, my lords the judges will tell you they are ;
if there be no exception to the credit of Good-
man, but only that he was in such a design of
poisoning the two dukes, which is really no
objection of discredit to his testimony) ; tlien,
with submission, 1 think there is no room left
for you, gentlemen of the jury, to donbt, but
that the prisoner is as guilty of this crime
laid to his charge, as any others that have been
tried and condemned for the same: and so,
gentlemen, I leave it to you.
L. C. J. Treb^, Mr. Conyers, and Mr. Cow-
pcr, will you say an v thing to this matter ?
Mr. Conyers and Ivfr. Cotcper. No, my lord,
we submit it entirely to your lordship's direc*
tion ; we have done on all sides, we think.
L. C. J. Trfhi/. Gentlemen of the Jury, the
{irisoner at the* bar, Mr. Cook, stands indicted
lore for high treason ; there are laid in the in-
dictment two sorts of treason ; tb.e one is com-
passing and imagining the death of the king^
the other is adhering to the king^s enemies.
U'he evidence to prove these treasons seems to
lie joint; for, as to that of compassing and
imagining the king's death, as well as to the
other, the overt acts are meeting and consult-
ing alMmt the treason, and then agreeing and
resolving to invite and procure an invasion from
France, and to meet tiiat invasion with an in-
surrection here. And the evidence is applied
entirely to prove these acts.
Gentlemen, that these are proper overt- acts
of compassing the king's deatn, I need not in-
form you, the law is very well known ; and the
prisoner's own counsel do acknowledge, that
these are sufficient overt-acts of compassing
and imagining the kind's doath : so that all
which thejr defend him by is, the improbability
of the testimony given against him.
Now, gentlemen, you arc to consider and
weigh well the evidence that has been given.
By law, it is true, as tJiey observe, there must
be two witnesses. Here' is no defect of num-
ber ; that is acknowlcdgrd ton, here aid
two wilnef.scs ; hut the qn^'Jition is whether
hero be two witnesses that desci've credit, ami
upon whose testimony you can find that the
prisoner is guihy '.' Tne* witnesses, gentlemen,;
are ]\lr. Porter and Mr. Goodman.
Fiiit, for tho matter of their li'stimony, it is
positive from them both; that you'll dd well to
uliserve. I^fr. Portr.r tells ycni, That in i^Iuy
lust, (uhich is now just a t\^'cl\cnionth) Iheie
was a meetinjj: «d' tiirht pn -joim, tint is, my
lord of Aylesbury, my h>id ?»lt.:i!i;:onicry, ^ir
John Fenwick, sir AViliiam l^arkyn?, sir Jidui
Freind, Mr. Charnock, Mv. Conk' the prisoner
at the l)ar, and the witness himself, Mr. Porter;
and this was at the JvinjT's-Hiad tavern in
Iicadcnhall street, and there lli^se eight dinedj
and this was in order to consult about an inva-
sion, together with an iii^jurrection intended to
be maii'e for the restoring of tl:e late king.
After dinner comet ad Mr. Goodman, he ny^
387J
8 WILLIAM III.
Tiial t^ Peter Coot,
[888
and theii Ihcy pursued tliif consiiltaiioii, and
came to a res4»liitioii to send Mr. Chariim:k
into France, and the inesisa<rc was agreed upou
which he should carry ; and he was to m* to
the late kin&r, and solirit tiiin to oljtuin 10,000
soldiers from the Tr^noh kiui;^, whcreiif 8,000
should be ttiot, 1,000 hor^!, and 1,000 dragoons.
These were to make up the 10,000 men to in-
vade this kingdom. And they resolved also,
wlien this force should land, they should meet
and assist this invasion with a jomt force, that
should consist of 'i.lKX) horse. And to ac-
quaint and assure him of this, was the messafi^c.
lUit, be say^, that Mr. Charnock was very
cautious in it, and woukl not lu-esently ^o upon
tliis errand, but lio would have further assur-
ance that they were in earnest, and would make
good what they did send him to propose, there-
fore be wutdd huvc a second meeting ; and a
second meeting was had, and that was at Mrs.
jVIounljoy's tavenii and there they did renew
the same resiolution; and there were present
my lord of Aylesbury, sir William l^irkyns,
wr John Feniiiek, sir John Frcind, Mr. Cliar-
nock, the prisoner at the bar, and himself; he
floes iiot know or rfmrinher whether my lord
Montgomery, or Mr. Cloodman was there, iiv.
says, Mr. Chaniock did aceoi-din^ly go into
France, and he did return and brine' tmck king
Jamc8*8 tlianks to them, hut their desire could
not he complied with j and he had his share of
the compliments.
Now comes Mr. Goodman, and he says,
That about the same lime, yiz. Mid- May, Air.
I'oiter acqnaintetl him, there would lie a meet-
ing of some uf king James\ friends, at this
ta\erii in [.eadeitliill-strcet. lie sn\b, That he
did tell ]>rr. r>ii-tcr, he duuhteil lnrshuuld not
be there at dinner. Lut hi; would cmiie as soon
as he could ufur dinm*r ; :iud accortVuig to ap-
poinin'eiit, he did enme a!"ier diinier, and tlunx*
vasihis eonviiitatiufi mul ii!>ulntion that >1r.
Porter Hjiouks of, uii'l snvj, llinl :^Jr. Clnn-nuek
aOrrwards t(dd iiun, U'. Im-l h. .u in IVaiii.:
i^'klh the lat({ king, and broi]>;lit baek the same
answer that Mr. Puiter sptrikb of; and he had
the honour of tluuLs frouk the late king too.
Ciontlemcn, I must observe one thing to vou,
which dops go \rry niuih towards thecun-
iiriniii!;- uhui thcs*; wilnrsses .say, and that i.'>
the agrri'iniMit in tiieir tt-'ti monies, tlnaigh llicy
were i xrjnined aiiart ai t!it: desire of the pri-
fconer: You will fi'id tliey a;;rco \:\ lli. ^i- seve-
ral ei.ee.nistanet-, in llii'linic, lilt' itv.ii^;this
tiir.e t.vi'I-.c nioii'lis ; in the plar.-. thit ii was
iit this ta\ci:i ; in tli.? nnndiir ol pt.rson.s that
Wire til. IV, \\U\]i Vi.j^ ei;^lit biiws.- !Mr. J.i'-o(l-
iii.in eiiiik'. in; in tlienuiu'Kr m" h.-u'Si., ImiJ,
and dru^nior.s l!iu v. "re to Ih; lj,iMr,;ln iii>.ii
I'lancL-, uiul in lli"se \w:>r that wc.,- v> lO'.ei
tliiMn here : :.iul be^iik**, in tlio^e \,,jrd> r»i'f'.is-
course upon the eunsnltati-jn an- 1 tlie nsolu-
tion. \\u\ tlic.e i»» one riicn!ii^iaiieu lucre in
virch thty du agree, and wl'.ieh is vcr} jiaiii-
culai : Tiiat ^lion tiiey eanic to ;it!i\er tiioir
consent to this mrs^agc'lhat Mr. C.liarnock was
to carry. Uiu rest sal, uud I'li*. Cook the pri-
soner did kneel upon the chair, and levied upoa
the table. And this botli of them do agree in.
And after all the many quettioos asked in their
sr|)anite examination, 1 do not 6nd they dis-
agree in any iiart of their evidence. So tkat,
gentlemen, there can remain no questioo now«
but whether these two witnesses are men of
credit ? or, whether there has beeo oiipeeed to
them any such evidence as will make yoa be*
litive, that (if not both^ at least one of them has
forsworn himself? Tney do produce DcAbing
against Mr. Porter, whatsocTer may have been
rroduced at former trials against his credit:
*erlia|is what has been before has satisfied the
objectors, and there is nothing appears against
his credit ; but he is not only a competent, but
a very clear, good, credible, and imdoubtc4
witness.
nut against Mr, Goodman they offer several
things, wliicli they say amount to a videDl
presumption that he is not to be looked upon as
a credible witness : And first, they prodnoe a
recfinl of a conviction upon an informatiott
against him, for attemptmg to poison two
iioMe dukes : This he was convicted of, and
fmed 1,000/. and ordered to find sureties fbr
his good behaviour dnring his life. But to this
it is ansucred, that it apiicars in the same re-
cord, that hat isfact ion was acknowledged of ths
1,000/. and all the rest of the judgment tbs
very next term, and he was forthwith dis-
chargeil, and that without paying the money,
which (ii was observed) the prisoner's counsH
said Mr. (loodman was not able to pa}* at thai
time, nu more than he could 20,000/. and
thereupon the king's couunoI say, that the go-
vernment WIS con%inced that he was wronged
by a eauseh'ss proscrniion, and the evidence
agaiii^-t him was found not to be credible. And
bv'sitk.s, Mr. (ioodman stands pardoned by se-
veral acts of pardons, :is well as other subjects.
Tlirn they produce one Kdwards, who is a
prisoner here, and c->inmitted for sus])ieion oi'
I liigli'ti'tasoii, aii.l tor trt-asnnahle practices:
he is, no tloubt of it, a witness for all that: lor
thai is but :.u ar<'iisatiun upon him, and does
not take a\. ay iii« cri'dit. lie tells you of a
diyroui-;^e that he iiad with Mr. Goodman, and
that C»ooJ;i! ia ;t'>ked him when the prisoner
wabto bf.> U'wi] ; a::d he told him he would lie
triid such :i '!: y ; miu when it was asked what
it was fur, it was a .-.wered. Not for the assassi-
nation, bi;t for stuiding Mr. ('harnoek into
Trance. Hi; nrkcd then who were the wit-
nessi s aif a'.ii^ t Liui ? i\lr. (lOodman said, Mr.
I\irti.-r aii'i li>::i.'>elf. And further said, that
lieur.'lt in!.':k1 il.at Mr. Cook had swoni against
liiiii :i;»;nf^;. i;..- uoiild i;iv«' an aceouni of no-
ii: ily i-!io) ai:.i iiad n'> parilon, and cither he
inu>>'. liiA.^y or iiimself. And then he talked
iiL;lji!y ui' ih;: iMKJness of hani^iug, and said it
ua.<> a lU'iiirli tiling to he hanged, tor all that
people \v«i';u» say, was, that such an one
haig'Ml iru.i'i.MuIy, nr died bravely. This
indt td !<) u ^'.'.t i.i't.ihcourscas it'Mr. OKidman
ui'l ailiircliuiul l.iaibelt' in danger from 3lr.
Cook'b evidence \ uud yet i cannot see that it
3S9j
Jor High Treason.
A.D. 1696.
[SflO
does at all falsify tlie eridenca of Mr. Guod-
man : be may lie a true witness, and yet ho
Uii^ht say lie ivas to ffive evidence against Mr.
Cook, and it was in Mr. Cook's power to qive
erideooe a^nst liim, and that tnUy ; and if
botb were in the guilt, thny were in 'danger of
<ine another. Rat for a fiirtlipr answer, the
king's counsel have jiroduced Mr. De la Rue,
who says, that he knew Air. Edwards, and
that he was a Hcotchnian, and reputc«l chap-
lain to the viscount of Dundee ; that he went
formerly by the name of Douglas, and by that
name he was set down and described in the list
tliat Air. Chamock sent to captain Porter; and
to that name he answered in the Press- Yard
lately. Now it is certain, that Mr. Chamock *s
puttfng of his name in that list, is no evidence
of his bein^ g^iilty in Air. Charnuck's treason.
But bis going by two names doth justly lay
him under some siuipicion. But tlie evidence
that the prisoner seems to rely upon most, is
what evidence has been produced against Mr.
Goodman in that point of fact, hv the master
and the two drawers ; the first ot the drawers
name wasCrawfonl, and he does tell you, that
aboQt twelve months ago there was this com*
pany at dinner there: my lord of .Aylesbury,
my lord Montgnmrry, sir John Fieind, sir
Jonn Fenwick, sir U'iJliam Parkyns, caplain
Pofter, Alr.Cbarnock, and the prisoner, though
be did not then know his name, or the name of
sue or two more of them. 1 oliserve, by the way,
that bis testimony so far does verify theirs,
that there were cigfht of them there, but he
ays he did not see Mr. CSoodman there, nor
uy but those that dined there. And my lord
St Aylesbury went away, as he thinks about
ANir o'ckick. He cannot say that the prisoner
vu there, or was gone at that time before Mr.
G<H)dman came iu ; for he did not see Air.
Goodman there at all, he was not in the room
lit the time, but he was to and fro attending till
ny lord of Aylesbury and my lord Alontgomcry
*ent away iu a coach that was called, r.nd
when iliey were gone, the rest of the company
•tiid there a good while ; being ui-ged to tell
how long, at last he said it was dark ; and that
•prees ivitb Air. Porter, who snys, it was at>uut
oineo^clock when they went away. He says
he was there once or twice atler my loni oi'
Aylesbury went away, but he never saw Air.
uoodman that he rememliers at all, till last
&iturday, in all his life. As to this, the king's
counsel say, that it is only a negative evidence,
and in which a man cannot be absolutely [losi-
live, but can only speak according to his obser-
vatioD and memory, which might not be [)er-
fecti and Mr. Gocdman might l»c there in the
mean time of bis goinff in and out : that is
possible ; and so it musibe left to you to con-
Mderof it.
Then there is Huntley the other drawer,
•nd he says my lord of Aylesbury went away
about that time, and tliat he did not sec Air.
Goodman there at all, nor ever in his life till
r ; neither does he remember that any body
to them alter diimer, and if any fresh
man had then come in, he thinks he should
(going often into them) have known iiim ; am!
says, that he attended this company only : and
he had seen sir John Freind uudsir VVilliam
Parky ns there before.
Then Air. Cock, the master of the house,
%vas produced, and lie names all the eight
persons that did dine there ; and so far he con-
lirms the king's evidence : he thinks that my
lord of Aylesbury and my lord Alontgomery
went away privately (as it seems they had
comb) in a hackney-coach, and that it was
about four o'clock ; and he snys, he did not see
Air. Goodman there, and he docs not know
that he ever saw him till now : but when he
was cross-examined by the king's counsel, he
does acknowledge that he miglit |)0ssibly come
in after dinner, and before my lord of Ayles-
bury went away, and he not see him, because
he was not there all the time ; he says, sir
John Freind used to dine at his house, anil
came to his house once a-week ; and he had
seen some of the rest, but they did not fre-
quent his house as sir John Freind did : he
says, the company dined altout two o'clock,
and the last of them staid till about eight or
nine, and that the door was shut as is usual
when company is in a room, but nobody was
forbid to come there.
But to establish the credit of the evidence
on the king's part, they did produce Air.
Goodman and Air. Porter again : Air. Good-
man does acknowledge so far to be true, that
my lord of Aylesbury went away first ; but
says, that himself was not wholly a stranger to
this house, for he had dined there four or five
times with sir John Freind ; and particularly
one time, he being sick, and asking for some
brandy, the master of the house said he would
help him to some of the best in England, and
Air. Goodman would have bought some of him.
But the master seems not to own that, and
says, he does not remember any thing of it.
But then comes Air. Porter again, and he
says positively, that Air. Gooilman was there,
and that he did speak with the company, and
onmplimentcd my lord of Aylesbury when he
went away, and went part of the way towards
the stairs with him ; and he does well remem-
ber it by this token, that when Air. Porter was
told Air. Goodman was below, he mentioned
him ill the company as a trusty man, that was
fit for the conversation, and then Air. Porter
went and fetclied him up ; and Air. Goodman
was there near two hours, and they discoursed
all tliis matter in that time, in the presence of
the prisoner and the rest ; and he says it was
about six o'clock before my lord of Aylesbury
and my lord Alontgomery went away, and
then there was opportunity enough tor this
discourse and consult that they s:|M!uk of.
The prisoner has ollVrtd amaher sort of
evidence : first, the confidence of his own in-
nocence, that he was abroad thiee weeks after
this conspiracy was discovered ; and they have
Sroducecl Air. Treganna, Air. Peachy, and
Ir, Nichollsi who prove that be never ab«
S91] 8 WILLIAM IIL
BcoDd«4l, but was abroad, and appeared openly
(for tbree weeks after) till aucb time as be
was taken. Tbis the icing's counsel say is no
proof that be is not guilty, and their evidence
untrue. They sav he might have a oonA-
denoe, and the rather because he is not charged
with tlie assassination ; tor at that time these
witnesses speak of, nothing was discovered
and public out the assassination ; for it was
before sir John Freind's trial; and then was
the great discovery of the secret of the in-
▼asion.
Then he shews farther as to his conversation,
tliat be is a man of a very sober life, never was
known to swear, that Jie drinks but little, and
is a godly man, amrofien says his prayers.
As to that, the king's counsel on the other side
tell you, that has oeen pretended to by other
people too ; and the question is not about
religion, but this fact ttiat you are now to try.
'Whether he be so religious, or no, as he pre-
tends, or whether he be sincere in his devotion,
that is not so u\uch the matter now ; but the
i|ucstiou is. Whether he has offended iu tliis
lliiid as he stands accused ? They produce a
gentleman, one 3Ir. Hamond, and he says that
.be is a very conscientious nuin, and particu-
larly is a great lover of his country ; and he
has oAen heard him declare a detestation of
an invasion by a French force, and wish suc-
cess to the fleet ; but that which be remem-
bers chiefly, was about the time of the dis-
covery of ttiis Plot. The king's counsel an-
swer to tbis, that a man may use such kind of
expressions, perhaps, to cover his guilt ; and in
the rep!)r to sir Harthulomew Shower's obser-
vations, it was taken notice ut'by Mr. Solicitor,
(what we all cannot but remeiiibcr) that the
like evidence was given as to sir John Freind,
that he did detect an invasion, and was present
at the common -prayer when king William
was prayed for, and declared against Plots ;
and toat if they catched him in the corn they
might put him in the pound. These tliin^vs a
man might say, and it is the lightest evidence
tliat can be given, being discourses out of
men's own mouths, who will never proclaim
their own guilt ; and therefore it is the weak-
est defeuco that can be otfered. But, gentle-
men, you are to consider the other evidence
that has been produced by the prisoner, given
by several witnesses, and who are upon their
oaths now as well as the king's witnesses.
And his counsel say their witnesses, but par-
ticularly the three upon whom they chiefly
i-ely, have no objeition made out against
them ; and no niao*s testimony ought to be
presume«l to be false. And it must be taken
notice of, that they lan speak only according
to their belief, grounded on their observation
and memory, that liiey did not, so far as they
observed, or remember, see Mr. Goodman
there, as it was most probable they should if
be had been. But it is possible they might
overlook, or forget ; the rather for that tliey
Mere uot of the company, but in and out, up
aod down ; and Mr, (joodmau was not there at
Trial of Peter Cook, {8!B
dinner, when their attendance fh» fixed wd
constant.
It ought to be considered also, that bcre m
several circumstances, some of which seem
very pregnant. ^ It it agreed on all hands, tkil
the prisoner dined there with thoae odw
seven persons, concerning four of whoin ws
roust conclude nothing ; but conoemmg thm
of them we in this court may take notiee, thvf
are attainted of high -treason, and to it ii ern
dent that the prisoner was for a long tioe i
companion of three traitors, and had a conver-
sation with them. I do not find that be U
any occasion to be there ; nor any of the mt
of the company. Concerning my lord of Aylfs-
bury, indeed, it is said lie proposed to n«it
about a hogbhead of \s bite wine. Bqt thl
seems to be casual, and not the end of kii
coming, and dining with this company tbm.
But bo that how it will, that relates to Ui
lunlship alone. But for the others 1 do Ml
Hud they do pretend any occasion of nml*
ing there ; and therefore it leaves it the mm
suspicious : and it is the more so, beoaottil
was managed so privately and cautioaii|w
They were not attended according to tbos
(pialities. The loi-ds went away together in a
hackney-coach that was called, as they U
come thither in another. The rest thought fi
to stay there till it was dark : and as soon mM
was so, went away. There was some d^
traonlinary cause for all this. It did iiepnl
tho prisoner to shew tliat it was for somegoil
cause anil purjiose.
And further, it is observable that tbis home
was a place which, as the master says, nooesf
this company did use to resort to except ar
John Freinu: vihicli makes it probable (this
being a house that sir John Freind frequenledy
Mnd none of the others) that he bespoke thifl
place, and brought the rest thither : and if it
were so, that makes it more probable that then
was such a treason there to be hatched, is is
evidenced by the king's witnesses ; for y<n
may remember, and it appears by the recorail
this court, that sir John Freind was indictedaod
attainted (not for the assassination, but) for tht
treason for which the prisoner is nov«-!a-tryiog,il
invasion that was to Xie supported with an imar-
rection. Now if sir John Frond was cladf
acquainted with this house, and brought tta
compan^^ together, it is very probable it wv
about this business which sir 'John Freiod wil
so concerned in. And that he is attainlolfir
it, a j) pears upon the record before us ; whiA
should be read : but that the prisoner's oo«-
SL-1 admit it, and are so far satisfied in it, tM
they won't arraign the \«rdict ; nay tb^M
ackuovi ledge that there was a plot ; aod thai
was uo doubt of it, there was such a pkM.
Now then. Gentlemen, here it is certsiiif
proved by these two witnebscH, (and not pS^
said by the prisoner's own w iinesscs) thattMl ^
was such a meeting, and that the priaoncr nV
there ; and they both have positively t9MB
that this treason was committed tbera. Tif '
have beard what has been objeded lO.tMk
m
Jhr High Treasfm^
erdit; Uicy have deliTered their Untimony
iijMn their oalhs, and so, geiitlemrn, you are
cpon your oalhs ; if you are satisfie<l and can
Uike il upon your couacietices, that these two
wtUi«99esare, or u.ny one oftlieiu is, (it* such flis-
Jjnctioa can po$sibiy be aiade in tliis case) then
}m dm to acquit the iirisoiier ; but if you are
satisfied, and tliink they have sworn true, you
ve to And hiai guilty
Just, Rokeby. Say if one be forsworn, ])oth
arc ; for the evidence is intirrly in all parts tlie
Mfnc; and if Mr. (joodman oe perjured, Mr.
Porter is so too.
Sir B. Shoaer. Forsworn ami perjured are
iia*-!! wonis ; we only say mistaken.
Jufi. Rokihf/. Well, tiiat objection goes to
one as well as the other.
L.C. J. Trcbif. h must be so, since they
ipcak of the same joint matter, viz. their bciiij;-
\ -jeiher in company. If Mr. l\»rlcr says
true, whi D he swears that 3Ir. Goodman was
there with him and the rest, >lr. Goodman nuist
say true when he swears that !ie was there with
MV. Porter and the rest. There wa« one thing
that I furf^ot : sir B. Shower oliservm^ that it \
uii^'htbean invention of captain Porter, because j
lietixeth it in point of time to the moiUh iif {
Niy tttat he Aoea not sav it was iii April ; tor I
lliitthea it would be wiihln the pardon, which
exicBiU to April 29, last yeai nor would Jie
l-y il ia June, for then hi: wtslfi Nfwprotc^ mn\
otben of them were dispersed b^- reason of a
rifltcommitletl in Dniry-lane : and this sir H.
Shower alle«ljjos, was a piece of skill and con-
tmance : but, really, this is a piece of inj^e-
nyity in himself: tor, besides that tbe king's
«ita*sieg aliirin positiii-ly that it was in May,
lud rememl»<^r it by a certain token, viz. That
it nas within a very few days after the kin;"^
^entbeyoml sea ^ one or two of the prisoner's
^ttCKsci (Crawfijrd I am suit) did sriv that
this meeting was this time twetre-month, and
)"u know wG are now near mid-May.
Seij. DarnalL IT you Wlleve our drawers
fcruart,you must heliieYc them for all.
Alt, Gen, No, uot so my lord sptakr? only
where ihty concut with our cviilcnce. ft were
tliiiijje tu*csfpect we shouhl diNhelievc or doulit
ViiJt ihe witnesses on botli sidcM aHirm to be
true: but I do uot think it would be to the ad-
^anta^^e of the prisoner, if what his counsel
pnojiOKCth were anrrced to, \\f., Thsit ilie Jr^iw-
PTs (and thei miitc ton) should Ik? believed
for all they say, |)rovi(le4l e<|ualiy the kin^'x i
witnesses shouid, in like manner* be belieied
tor what they say. Tor the main ihin^ c<»n-
troverted, is, Whetlier 1^1 CiooduiQu were at
this mcetint^? These witnesses lur tlii! prisoner
lay, -they did not see hi in there at least they
do' not remeetber it. Mr. Porter, and Mr.
OtwHlman himself says, he was there. Now,
these tbifi|ips aifreed, an admitted wniild make
1 tery contiilentdearef idence, that Mr. Good-
loan wni Ui ere, though the master an rl drawers
did not obiier\e, or & uot remember his being
Ihert,
A. D. 1696. [394
[Then an officer was sworn to keep the Jury,
who witliilrcw to consider of their Verdict, ami
about three quarters of an' hour after returned
into court.]
CI. of Ar. Gentlemen, answer to your
names. Henry Nherbrook.
Mr. Sherbrook. Here. And so of the rest,
&c.
C7. (f Ar. Arc you all ag^reed of your ver-
dict ? — Jury, Yes.
C7. oJ'Ar. Who shall say for you?
Jurtf, Our Foreman.
CLofAr. Set Peter Cook to the bar.
[Whicii was done.] Peter Cook, hold up thy
hand. [Whicli he did.] Ix>ok upon the pri-
soner ; how say you, is he guilty of the high-
trensim whereof' he stands indicted, or not
guilty ? — Foreman,- Guilty.
Ct. vf Ar, VVlmt goods or chattels, lands or
tenements bad lie atihe time of llie treason
commi ted, or at any time since ?
Fora/tttn. None to ou knowledge.
Ci, ofAr, T'hen hearken to your venlict as
the court has rei:orde(l it : you siiy that Peter
Cook isgiuhy oi'the h igh-t reason wliereof he
stands indiGted, but Umtt he had no goods or
f battf Js, ktids or ti^ncments at the time of the
htgh trf:a!<^ojt committed, or at any time since
to your knowledge ; and so you say all ?
Jurif, Yes.
CI. nj Ar, Gentlemen, the court dismisses
you, and thanks ycu for your service. [Then
the court adjourned till 5 o*clock in the even-
Post Meridiem.
About ft o'clock, the Court being by procla-
mation rcsumcf!, ilie prifroner cotivicttd was
brought to the bur in order to judgment.
Cf. of Ar, Peier Cook, hoki up thy hand.
[IV hich he did.] Tliou stand^st convicted of
btirii. reason, tor coiupassioji^ an( magiaing
the death o his majesty kio{^ William the 3nl,
aud tor adhering- to the king's enoiuies : what
can\t thou say Ibr ihyseir, why the court
sjiould not givc'thee judgmeut to die according
to tlic law f
Cook, My lord ninyor, njy eyes are Tery
had, therefore 1 desire'your lordship would be
phase d to take this paper, and that it may he
read.
C/. of Ar. Have you anything to say in
arrest (»1 judgment.'
C*'ok. I desire my Paper may be read.
[[t was haudtd up lo tlip nmrt, and then de-
livered down to Mr. Attorney General, and
the king^i coun&eU but not niKuly read.]
Rccortkr, [BtrSalaibieil^ovell.] Mr. Cook,
the court have read your |»aper you sent up,
aud have communicated it to the kind's connx
sel ; if you bare any thing to move m an ar-
rest of judgment, this is youi time, and we
will hear you ; hut as for any representation
of your case to any other.s, that must be con-
sidered of afterwards; you arc now called to
your judgment.
395]
8 WILLIAM IIL
Cook. I dill not know that I might offer any
things a(\erwanls; but ifyour lordships thinic
fit to coniinunicate that to my lord justices, I
submit it to you.
Recorder. Mr. Cook, there is nothing ap-
pears upon this paper that is matter of law,
and so not sci'viceable to you now, and there-
fore what you desire in it the court will consider
of afterwards.
Cook. I do not understand the law, my
lord, but 1 have heard the court ought to be of
counsel for the prisoner, and I desire 1 may
not suffer by my ignorance.
Recorder. I declare it, for my part, 1 know
nothing that you can have any advantage of in
arrest of judgment ; if I did,' you should not
lose the benefit of it, and vou have hml your
counsel assigned, who have plt^mlcd for'yoii
without restraint ; and if there had been atiy
matter of law that would have availed yon in
the arrest of judgment, no doubt they'll ouh!
have laid hold of that advantage for you.
Cook. I cannot tell, my lord, nhat is matter
of law.
Att. Gen. Your lordidiip observes, they took
all ibe objections that they ctuitd to the indict-
ment, but there was none that they could fix.
CI. ofAr. Then, crier, make proclamation.
[Which was done on both sidesof the court.]
Crier. O yes. All manner of persons arc
commanded to keep silence while judgment ia
in giving, upon pain of impri-sonnic-nt.
Cook. My lord, may 1 have my paper
again?
Recorder, If you think it m;iy be any ser-
vice to you to h»a»c it witli the numt, you may
do so ; or if you dc&ire it, you shafl have it
again.
Cook. I desire your lordship to ktrcp it.
Recorder. I will leccive it, and it bliull not
be buried, I assure you.
Cook. I lio not bear what the court bays.
Recorder. You say you did not. iicar what
was said to you : if you di'sirc to lia*« yoni*
paper again, you sliail ha\e it; but if you
ilibire to have it conununicatod al)ovc>, the
court VI ill consider it, and take care of lirit
too.
Cook. 1 desire your lordship would ilo it.
Then the Recorder proceeded to give judg--
mcnt.
Recorder. Mr. t'ook, I think it useful to
the public, and also at this time to you, to ob-
serve. That the reign of the late king Jaines
wa«>-, throughout, one entire design and project
termed, in conjunction with the French king,
totally to subvert our religion, laws, and liber-
ties; which grew so appai-eni to the sul»jects of
these nations, in so many instances of fatal con-
fu?(pience, managed in such a method, and ad-
vanced so far, that the people of ihc»se king-
doms, of all qualities, ranks and degiccs, did
find it absolutely necessary for the preserva-
tion of themselves and the neighbouring na-
tions now in alliance with us, tu pray in aid of
the then prince of OnngC) as a ^ler^uu not
Trial of PcierCaolc: \%
only nearly allied to this crown, bnt alt
inttrely in the interost of these kingdoms, am
those neighbouring princes and countries tlis
lay exposed to the violeiice and ambitious in
suits of France. Antl the love which that nobl
Crince did bear, not only to us but to our neiifii
uurs also, disposed bim to embrace that itivi
tation ; u|K>n whose arrival here, that nrttic'
cesser, from motives that were invisible, ile<
dined the kingilom and the government, Mk
letl the people to themselves ; whereupon hii
present majesty was necessarily and rightfullj
placed upon that throne he so well deserved :
And this is now that king, for whose presern*
tion all good jicoplc have associateil, and s|nn
neither lives nor treasure to support anu U
routiuiic ill the government; and this is tlu
king whom you have traitorously conspired
not only to dpthrone, but also to doslroy ; ao(
this is tliat people that you would have to swiu
in blood, and lose their religion, liberty, am
proprtty. These mattei'S need a history n
relate at large ; T only touch them shoi tly, ti
move good men to rejoice in their dclivcnince
and to move you seriously to reflect u|Mm thi
hL'in«)usiioss of your crime.
Mr. Cook, you arc an Englishinaii, an
must needs kuow, that in this place we fre
qucnily conilemn to di?afh clippers, coiiiera
thieves, and robbors, and other such like crimi
nal<, a!i«i that justly and necessarily too, fii
the prescr\ation of the innocent, anci fur tb
common good. Of what condemnation aiua
Jt}\\. and such ai yoii, be woNhythcii, wb
lavc 80 horridly (Midoavoured and dcsi:/!ied tli
f;ital ruin and dt>.4rtiriion of your own natir
country, and to r.r.'id. r your follow -subjects
niiscnible priy, and at the best to becun)
slaves and vassals to a ioruii^n prince ?
Let me also mind you, that nothing Ls inoi
sun», than lijat alkr tliifj, you must rctciw
judirmcnt in anoilur world; and if that pa*,
against yon loo, that sentence will be mo
t».rrible, ami your siitioilnys without eud: An
therefore ] do advise \i>\\ to employ the fc
days \ou have yrt to live in preparation ti
your future happiness, whitdi cannot bo did
done without a full iM)nfi-:isii»n of this, as we
as other crimes you have hi'tn guilty of :
iluvetbre rliarge it to you as your duly, an
leave it with you at your ntiiiost peril, that yo
honestly and fuithftilly diseover all you knff
of this inhuman and traitoi*ous conspiracy, an
all the persons that you do know to be guih
of it : This will he the grK'aiest service youei
do in this world, and will he the best prcpan
tory step that you can take towards a bettd
And, Sir, there now riMuains no more for m
to say, but to pronounce that Sentence 00 yo
which the law directs: and that is this :
« That you, Peter Cook, be taken hence I
* the place from whence you came, and tbeac
* be drawn upon a liurdle*^to the pbce of efl
* cution, where you arcr to be hanged by tk
* neck, and cut down before you be dead; tb
' yutir bowels be taken out, aud your pR*J
Trial of Alexander knightlci/.
A. D. 1€96«
[S9S
n cat from your body, and both burnt
■ siglit ; tbat your beaul be cut ttiXy and
idy divided into four quarters, which
nd quarters are to be at Uie kin{^*s dis-
aud God Almiffhty ha?e lucrcy uuon
>uL'
I beg*, if your lordship please, that I
e my relations and friends coine to see
some dirines, the better to prqiare me
ler world.
ier. Mr. Cook, if you will give the
' those tbat you would have come to
the officer, care shall be taken in
rou will not be dented auy reasonable
it may be had for your preparation for
ten. It is not fit he should be denied
onable help; but in the mean time
reason for the go? ernment to be can-
on the account of what bos uo(oriou«-
I the case of some others.
hr, ' If be give in the names, it will
lercd of, and care taken that uotbing
»ut what is reasonable and safe.
the Prisoner was taken from the bar,
Cuiirt proceeded to what was i-emuiu-
e business of tlie sessions.
a afterwanis pardoneil, upon condition
iorlinti himself, and never returning
i to England.
)llowin<3r Article (undated) is publLsbcd
uplte's Memoirs, Ap|iendi\ to part 2,
Extract of the Examinatioru and Confessions
of Fcter Cook, son to sir Miles Cook. He
was condemned for the Assassination Plot^
but af Uncords pardoned,
" lie gives an account of bis having been in
France, several years ago ; that lie went on
my lady Philips her business, but being there,
was introilucc<i to king James, and earned over
the'complimcnis of several persons to the king ;
particularly from archbishop Saiidcroft, lord
Ailesbury, loni Montgomery, sir John Fen-
wif^k, lord Clarendon, lord Litch6eld, lord
Huntingdon, lord Weymouth, sir Edward
Seymour, and others ; be brouf'bt back mes-
saij^s to some of them, and was uid to see the
man|uis of Halifax, as being a man of honour,
who received him very civilly; he brought
over instructions fi-om king James for the l)or-
rowing 6,000/. they were directed to lord Ailes*
bury, lord Litchfield, and lord BrudeneU, but
they nil excused it.
'* Mrs. Iron sent him advice of the La Hogae
business, which he communicated to lord Ha-
lifiix, whereupon he found him uneasy at his
staying longer with him, and told him be knew
what he bail to do.
** lie says at that time, there was a meeting
at a tavern in Holborn, where were the lord
Brudeiiell, sirTlieophilus Ogeltliorpe, sir Fran-
cis IVindham, mnjor George Mathews, Mr.
Bruce, colonel Fountaine, one Holmes, and
several otliers : thoy advised with one another
what tliey shouhl do upon that hivasiou ; it
was resolved those who bad horses should ren-
dezvous towards Cane wood, nud those who
had none should get near the Tower, to join
with sir John Freind*s |»arty. There wa.s a
re^riraent lined witli yelluw/w hich they were
tuld tliey might depend u|>ou.''
The Trial of Alexander Knightley, at the Kings-Bench,
for Iligh-Ticason : 8 William III. a. d. I696.
moved and seduced by the instigation of tlie
di'vil, as a false traitor against tiie most serene,
most illustrious, and most rxnellent prince, our
sovereign lord William the thini, by the grace
of God of Knffland, Scotland, France and Irc*-
land king, deteuder of the faitli, &c. your su-
preme, true, rijsfhtful, lawful and untloubted
sovereign lord, the cordial love ami true and
due obfdieiu.*e, lideiity and allegiance, which
every subject of our said lord the king, that
now is, tu wards him our said loni the king
should bear, and of right ought to bear, with-
drawing, and utterly to extinguish, intending
and contriving, and with all your force pur-
uosing and designing the government of this
kinrfilom of England, under hiui our said lord
the king tliat now is, of riftiU, duly, happily,
and very well rstablisihed, altogether to subvert,
c-liiiiige, and alter, as also the ,same our lord
the king to death aud tinal dcstniction to put
TiiLRSOAV, April SO J 169G.
lay the Keeper of Newgate brought
r of the court of Riug^s-I»enrl) Ale.\-
ii:;lit!cy by virtue ofa \\ rit uf Habeas
is&uin;^ cMit of that couit fir that pur-
le arraigned \i\tim an indictment of
son fouiid ag'^insi him at the sessions
and Tci miner, huUlen fur the county
psex; which iurlirtment by writ of
i wa.s remo^rd into tiie King's-bench.
m of the Habeas Corpus was deliver-
.fHi till: prisoner was arraigned thus.
Ar. Ale.\Lfciider knightley, hold up
. (Which he did), 'i'hou standest in-
. tiiC; name of Alexander Kniijrhtiey,
ep%rii»li of St. Paul Cnvcnt-Ganlen,
.uufy of Miililltscv, i^cuX, for that you
ig tlic fear ol' (;.»il in your heart,Vior
r liifc doty ot* juur aJli-giance. but Uing
399]
8 V/ILLIAM Hi.
and brinjif, and liis faithful hubjects, and (lie
freeiiicu of this kiiij^dom uf England, iutu in-
tulerablii and tnost miserable slavery to Leuiti
the French kin«r to subdue and inthral ; the
tenth day of February, in the strventh \ear of
tue reiy^ii of our said sorcrcign lord the king
that now is, and dirers otlier days and times
as well before as after, at the parish of St.
Paul C'Ovent Garden aforesaid, in the comity
aforesaid, falsely, tnaliciously, devilishly, and
traitorously you did compjss, imagine, and
contrive, purpose, design, and iulc-nd (uir said
sovcrcig^n lord the king that no\T is to kUv,
kill, aim murder, and a niiserable slaughter
among the faithful suhjeclA of our said lord the
king, throughout this whole kingdom of Eng-
land, to make and cause ; and your said most
wicked, most impious, and devilish treasouH,
Trial of Alexander Knightl^/p [400
muskcta, rapiers and awords, and other wea-
fions, ammuuiiion, and warlike things, and uii-
itary instruments, fulsly, maliciously, secrrt-
ly,a*nd trailorou!»ly you did obtain, buy, gather
tocher, and procure, and to be bouglit, oli-
taiiied, gathered together, and procured, did
cause, with that intent to use, employ, aud be-
stow them ill aud alM)ut the detestalile, horrid,
and execTable assaftsiiiation, killing, and murder
of our said lord the kiug that now ia, as afore-
said ; and the same premisses the more satelf
end suroly l(» execute, do, aud perform, you
the said Aloxandc-r Kiughtley, with one Ed-
ward Kiii(f, lute for high treason, in contriving
and conspiring the death of onr saifl lord tha
king that n<)w i^, duly convicted and attainted,
by the consent and assent of divers of the trai-
tors and conspirators aibresaid, in the said tenth
and traitorous oom passings contrivances and I day of February, in the seventh 3 ear abovesaid,
purposes aforesaid to fulfil, perfect, and brin^ traitorously did go and come to the place pro-
to effect, you the said Alexander Kriightley at- ! posed, \^hirc such intended assa38ination, kili-
terwards, to viit, the same tcnili day of Fe- ; ing, and murder of our said lord the king, by
bruary, in the year abovcsaid, at tiie parish j lying in \iuit, should be tloiie, performed^ and
afoi'esaid, in the county aforesaid, and divers committed, to view, search, and obsfrve the
other da^s and times, as well More iis after, | conveniency and fitness of the Kame place i'm
such lyiiig*^ in wait, assassination, and killiog
there to bt- made, prrlormed, and committed :
ami that pluct> so lioiiig seen nnu observed, ji\'
ter»\urds, to v. it, the k:aid iiuy and year, yum
observations tlureul.to s«inic* of the said trai*
toisaud eoi:s;iiraiors \oti d:d relate, anil im-
part, to wit, :il the naiish olorcsnid, in tin;
murder ; and that exerraldo, horrid, and do- ! county aforr:«iid. atrui'isi the duty ot ymir al-
testablc assassiiiMion and killing the sooner to ; legiance, aii.l ugaiu'"! ihc' |ii-.ii*e nf otir saiil sri-
execute and perpttrAte, after\^ard.s, to wit, the ' vriviiiii hmlllu kii;:; ;Ii:'.l ii»»vv is, hiv; cruwh
same day and year, and divt'is other ('uys aind ; and iifjr.it) , ;»iid agaiiist ili.^ l.irni ;>t ih. >m
limes, at the ];arlbii aforrsai*), in ih*- ooiMity j tuie in this i^iuf nian«.' auf |.ri»vidtMl. Ih'..
aforcsaiil, traitnniMsIy yoa d.d tual, pro- ' s:L\fSi ihoH. Alrx:Mukr Kv.: ^iiiley, sirt tl.oti
pose, and ruiivult with tliost* trait»)rs', of I i:*I»!iv »d t!ie hii^h-tioaMMi whereof llioi'
there ana elsewhere in the same coi:nty, falsly,
maliciously, advisedly, secretly, traitorously,
and with force and arms, with very many
other traitors to the jumrs unknown, did meet,
jiropose, treat, consult, consent, and agree him
uur said lord the king that now is, b\ lying in
wait and deceit, to assassinate, kiil, and
btais.Uvt inilii-tcl, « ;' Not (JjJty ?
the ways, m:iii»"r, nnd r.iratw. and the titiii:
and place uIicit, ulitii, Imw, and in uhal
manner, our said sovc.vl^'.i lord iln- Kiii*^", .- »
by lying in wail, nii^ln I r siaiu aial hilliil ;
and that you did fMii-,(:it, n-in c, and assini
whU the same traiitirs, i*. it ioit) iii.-.Hni l»oi .•
back, or thcr'abMiits, oi" wlmiii yon tl'O **:mI
Alexander Kui;»htli y \mt< to iji oii.^, wiilj ^i»»;n,
muskets, and pistols, chanvil ^^i«h gisni'owijrr
and leaden bulUts, and with swords, v;\u\, is,
and otlier arms ariut-d, sht)nid lie in wall and
be in ainlinsh, tin- same our lonl the king in
his coach beinif whan he bhnuld gn ai»ro:id lo
attack ; and that a ci/.iain and couipottMU niini-
ber of those men so armed, ii|).).'i tlic ^Mards
of our said lord the king, him tia^n allt ijdin"-,
and b<Miig with him shouhl set uixm. and Fhimld I reason to tind laidt ; fur win n I ua.s u. ijiiainted
fight with tluMii aud subdin.' tlifin, whilst oilh-rs j you xure ill, a!td dt.-.irrd a ^dly^ic^u•!, 1 or-
oi'the same iiku so arim-d, hlin our said loid tiered one tn Ix.- si nt to yiu ; and \tht< iday in
the king should ast>u^sinate, kiil, slay, and . the ai'iri noon m>>: sent \*(Md ^du vi>ir so sick,
murder; and you the said Alexander Kni:rht- ;tlia!>ou roniii nut t)e t>ro\!^b liitln r to day;
ley, \ our treasons and all your traitorous in-
tenti</ns, tlesigns, and contrivanci-S a ton said
toexi'Ciite, perform, fulfil, and biinglo friect.
I ('/. of .h . (nliiri!. How wdl you be tried*
I ./v/;;-';//; . r.\ tiodandiiij country.
, (\'.if'.u. <i'od '•( nd }iiu a good «lfli\cr-
I ai!.-' !
A- '.'//'iV . \\ lili M.limission to your lonKlii;».
i did tint I :.]•(<.. Ill lots weak condition that i
am in, too.. I>it :ii;i)t al (ins iltiu* lo the Itar :
ih.il iiaxiii'V t; ki I! r...* nd' t.Mreiiudy from tin:
a|>|dl('ari(iM iliai I :.lioiild liavc oiheiuise maii-j
oi" my self to my ti. ll nrt* ; but se« iiig therein
no i>n-i'ey to bo had l:r:rc, 1 will 1 iidcavour to
li j\c pJiiiijn'i.', and iniiKi;;Oiny fate as well a>
1 < ;.ii.
L. C.J. (Iln/f,) "Vir. Kpi;.htIpy,\ou have 110
afterwards to wit, the ufurc-haid tenth tUy of
February, in the seienth year aboviisaiil, at
the parish aforesaid , in the county albn-said,
divert horai-*, aiid very luany arms, guns,
hilt your doctor wa> with i:»»- lasi m^ht, and
upon distiiiir>i(.' with him, I I'jd a ip'-il^-ud you
wtTc niUso ill, but that, csiHMLi.i^ . iiMiieriiig
the w» ;tth«.r, ytiii rniglil vc\y batidy l>e brought
to the bar t(»duy.
Kjiighihy. The f;«!itlonnn that brought inf
tlic copy of iho i:iji:.iniuit foui.d r.ic very illf
401]
J^T High Tnasoiu
iUerer sanoe tUis ilavsereii
I
L.C.J, WeU> ni>w (et us see what time we
bail apfiomt for the trial.
AtU Gen, {Sir Thomas Treror.) When
|rour lardsIiiLi plen&es to nppoiot.
X. C. J. 1 think you canuottry ti till Wcd-
mlay fortnights
Atr« dark. That day \& free, my tonl.
L,C,J, It beirtf^ upon a Certhrari, the
ri»i>e^mf must be leturoable upon a cous-
in tftay i aiii] there must he 16 duys between
t teste and the return.
Aii* Gen. May it not he Tuesday, then,
tlhejitry appear ?
Z, Cr /» You cannot ho re it before Wed-
. .ay» for that is the return day*
Mr. Cfark. Tuesday fortnigrlit \» appoiott:*!
,|lie trial between Pride and th^ rurl of
, Gm. Then it must he upon Wedncaday.
rifaere cnuft be BAeeo days between the t€ate
and the return. '
h. Cr X Well, take hack your prisoueff and
WtJQ^ him here Bguinoo Wednesday fortnight ;
yooahalt hate a rule for tt (Then the pn>
toner was carrieil back )
WKOitesDXY) Mu%f 20, 16Q6.
This day beinff nppomred for the trial of the
priioner, lie was hroiiL:ht to VV*fs1rninstFr fluU,
iBd the jury were caHed over a» aoon as the
niiPtappearefl in the ball, and the defaulters
Itcorded ; and about eleven of the clock the
' wai brought to the bar.
Cl qfihe Crmim, Alexander Kni^rhtley, hold
apthv'haod, (Which he did.) 'Those good
Qianfiiat thou shalt hear caHfd^ and ptr.soually
•ppcar, are to |*ass belwtFu our lavereigfu lord
the king and lliee^ u|Hin tlie trial of tliy Itte and
death : If therefore thou wouUlst chaUenge
9, or any oi' theni, ihy liuie it to speak
I them as tht^y coine to the look to b«
m, before they he sworn*
L. C.J, (HtAl.) Mr. Kr»ij^hUey» 1 perceive
Von tia? e a desire to u^vak something ; let us
D^r «>bat you have lo sav.
Knif^htii^, 1 liumbly "br^ your lordshlp^s
Icare, thai I may speak before the jujy be
callfi. What t have lo say, 1 beg I may hare
jour leave to read, Inicause I hiive a bad me-
(lle&dfi.) 3ly lord, 1 hope to save the jury
and the witoe4«ies againa me a great deal of
feraubte, ai}d design to lake up very fittte of
your lordship's lime : but in the first pUce, 1
^^i|Mk oiyseJl obliged to thank your lorikhip for
^^^^vyreat indulgence, in granting me so much
^^^Hil uetweeo my arraignment Miid iriul *, the
^^^Klest part of which I have employed to ap-
^P|K before the great tribunal of heaven*
^^^1 apeak in the face of the w^rld here, that I
B am CQUvinced I cannot hojie to be happy bere-
" after, without a just abhorrence of, and a sin •
eere refientance fur that crime for which 1 here
taad iudtrtrvf
VOL :
And since confession is ao essential part of
repentance, I do acknowledge 1 was to hare
been concerned in some part of the harbaroua
assassin ation, and was unhappily surprised
into a consent to act in it, though in my heart I
did abominate the lact as much as any man
living; hut under some honourable and foir
pretences 1 was drawn in at first, and then ef a
sudden became ao far engaged, that by a miii-
taken notiun of honour, I thought I could not
retreat without the infamy of cowardice.
3Iy lord» I humbly crave your lordship's
permission to acquaint you, how that some
time since 1 was brought before some of the
lords ef \m majesty's most honourable priry
council, where 1 do assure your lordship, I did
freely own and fuUv discover my henig con-
cerned in that horrid design : and I here openly
confess the same, with that Rorrow and \i*
[^ntance as becomes a man of hoDour and
conscience.
My lord, there is one eircnm stance parti-
cular in ray case, I most humbly beg leave to
insist upon, and urge to your lordshiji in my
hthalf » VI hich is, that it wn<; upon my con-
fession ^as I conceive) thut 5In Harris, now a
principal evidence u^aitist me, was first di^cn-
vered ; so that njy own confVssiou has betin a
great muans to take away my lift!.
I expect after a tew words now in this lo-
kmn court to receive from your lordship the
Sentence due upon tlics conviction, from my
own mouthy of a crime for which I cannot in
modesty hope, ko much above my deserts, the
king's most gracious pardon ; yet the greatness
of my olfence dues nut rob me of all tlioughts
of mercy, whilst I throw myself absohuefy and
eniuely at his majesty's lect for it ; and I hum-
bty beg of your lordship as a^rivy-counsellor,
that you would icpreKcni my unfortunate caso
to llieir excellencies the lords justices of £ng*
laml, as an object of his majesty's favour.
And naWf my lord, 1 shall not detain your
lqrd$h»p and the court any longer, but my neit
words convict and lay me under the just sen-
tence of denth : so to my indictment I beg
leave to plead Guilty, and throw myself eu-
lirely upon tlie king's mercy, aud do desire my
former ptea to my indictuicut may be with-
drawn.
CL of the Cr. Thou hast been indicted and
arraigned oi' Ingh-trea^von in compassing and
imagining the deatli and deslruciion of the
king ; how sayest thou, Alexander Knightley,
art thou guilty of tlic hit{h-trea$ion wbereol*
thou standest indicted, or not guilty f
Knight ie^. Q nitty, my lord,
a, of the Cr. Art thou content to withdraw
thy plea NotGuiltvi'^ — Knigkiiey, Yes, Sir.
CI. oftheCr, Do you pleatf to tlie indict-
ment Guilty or Not Guilty r
KnighiUy* I am Guilty.
Alt. Gen. Then, my lord, we desire, since
he relinquishes his plea of not guilty, that you
will record his eontiesfiion ; and since he has
confest the indictment, mc have nothing more
to ilo but wait the iudgmt»!U of ih'j rpiii t
C O
il9]
8 WILLIAM m.
Trial of Alexander Knightley.
[404
L. C. J. We sbmll not give juds^meiit now.
Alt. Gen. If the prisoner hare any things
to say for biinielf, your lonlihips, I luppose,
will hear bim to it.
X. C. J. But I say, we cannot by tbe course
of tbe court give judgment now ; for after a
person iscon? icte<l here, wbether by confession
or rerdtct, be ought to have four days from the
time of such confession or Terdict, to mo?e in
arrest of judgment, if there be so many days
of tbe term remaining^ if not, then tbe longrest
time that can be bad in tbe term is allowed.
In Stay ley 's Case * it was otherwise practised,
udgmeiit was gi^en tbe same day ; that was
n the time of the Popisb-Plot, and is a case
not to be imitated, because not justified by any
precedent before that time or since ; bnt it has
been always obserrcd to bare four juridical
days for moring in arrest ctf judgment, if so
many remain of the term.
Monday f JUtfy 25, 1606.
This being the last day of the Term, the pri-
soner was brought from Newgate to tbe King's
Bench bar.
Att. Gen, If your lordship please, I desire
the judgment of the court to be jironounccd
upon Mr. Knightley upon his conviction.
CL oftke Cr, Alexander Knightley, bold
up thy band, (which he did). Thou hast been
indicted and arrai^ed for high- treason in com*
passing and imaguiing the death of the king,
and adhering to the king's enemies; what
cati'st thou say for thyself, \vhy judgment
should not be given against thee to die accord-
ing to the law?
Knightley. I have nothing more to say, my
lord, than what I have said.
CL of the Cr. Crier, make proclamation for
silence. (Which was done on both sides the
court.)
Crycr. Oyez : Our sovcreiffn lord tlic king
straiily charges and commands all manner of
persons to keep silence while judgment is in
giving, upon pain of imprisonment.
L. C. J. Mr. Kniglitlev, you are by your
own confession convicted of' high -treason in de-
siscning the munier uf the kins', and the sub-
version of the whole state of hngland, in pro-
moting an invasion from the French, its most
ancient and inveterate enemies.
It hath appeared before your arraignment,
not only hy the evidence that hath Ijeen given
at foniier trials, but even by the signs of the
times and the manner of some men's actings,
that there hath been for some years last past a
train of plots and conspiracies against this tro-
vcrnment ; and when the various means which
the conspiratoi*s did project among themselves
for its ruin proved ineffectual, it was at last re-
solved among some of the conspirators to as-
sassinate the Icing, as the most certain way of
accon) pushing their end.
In which dt^hign you were deeply engaged,
* «€e vol. (i, p. 1501, of this Collection.
and was an active instrument in the carrying
it on, being sent to view the ground on boCb
sides tbe water, and with others that were
sent with you reported your opinion, which was
the moat couTcnient place to attack the king
and bis guards.
And though you did, the hist time yon wens
at the bar, urge by way of extenuation of your
crime, that you beinnr engai^ed in the interest
of tiie late king, and th^eby supported, you
was surprised into this barbarous design, which
being proposed to you, you thought yonrself
obb^d in honour to engage in it ; which is so
far from an extenuation, Uiat it is an high ag*
gravation: for men of honoinrable principles,
tnoiigfa moat zealously disposed to the advance-
ment of any particular interest, yet alwa\'s de-
test the use of base and vile means. There-
fore when the assassmation of the king waf
proposed, you had an opportunity to have re-
treated with honour, and might have refuted
to be further concerned : but you rather pur-
sued this wicked enterprise with great zeal.
And though you are by your profession i
Roman Cauiobc, and may for that reaaoa
think that your crime is mitigated, beeanst
you acted in tbe behalf of a prince of your own
religion, which you hoped thereby to intro-
duce: nutwithstanding all which, your of-
fence is highly aggravated in respect of the
ingratitude and folly with which it is attended.
For there is no £uffiish I^iplst that is master of
any property« but ue is interested in the pre-
servation of this government, to which the
whole party of them hath been, and still are
continually oMi^ed for its moderation and jus-
tice ; for instead cf hc'ivrr cx|K)sc<I to the seve-
rity of those laws to which they are obnoxious,
they have had the same induigeneu in the eiijoy-
mcnt of their religion, and the same protection,
and as much benefit in the distribution of tbe
commonjusticeof the realm, as any other of the
king's suhjccls ; therefore none uVthem could
ever ex|)ect to mend their condition under a
French domination. Dut the contrary is fore-
seen by all considering men ; for the English
Papist, as well as Protestant, would have been
reduced to a most dismal state, if you bad ob-
tained your end.
For It is against all the rules of reason, and
the experience of all ages, to imagine, that the
French king would spare English Ripists
more than Protestants ; for it is not zeal to re>
ligion, or affection to the interest of the late
king, that hath excited him to invade England,
but it is his pride and ambition to con(|uer the
three kingdoms, and to reduce this to be a pro-
vince to France : indeed the pretence of restor-
ins^ the late king, and introducing the Popisb
religion, may serve to delude some warm and
unwary zeafots to engage in his assistance,
who do not consider, that if they should be
successful, they would be ?s certainly destroyed
as others, but with more disadvantage to them-
selves. For after they shall have survived the
liberty of their country, have embrued their
own hands in tiielr country meirs blood, they
5] Procctdingi against Thrt^ Nenptrmg
iU be at the merey of th^r co»»qiieror» wba can of the Almiqfhty, which, lu the riTeri of watef ,
think it hb mteresi to trust theiu» but will he tumeth \Tliiihersaeier he will.'* Live tliere-
ise tiiem lar Wiu(^ such viUainous traitors ihn for tite titno to come in er{i«ctatioo of «
their owo country* N»y* ralh«r, these speedj death, jiinJ prepare yourself lo »ppoQr
lishmmi, who by tbeir courage and resolu- | before anoUier judgmeiit-Skeat ; to U»e making
■ball endeavoor lo defend iheir country,
f h they «brt»»ld lie unfortunately vanqnisfi-
will meet with a mucli better reception, for
bey will have giveo assumnoes that they may
icunfideil in, when the otlien have by sueli
|;wieked treason given a demonstratian 'to the
re beingf then nothinis: to be aaid that can
i such a crime as that of which yoti are
icted J but you havin|r taken a ditftrent
' the la»t time you were al the bar front
ihat you took at tirst, you have reHn«)uished
iir plea of not guilty, and have confessed
be mdictflieol; 1 wish out of charity to your
it was as sincere a^ (I think it) it was
in you ; for after several convictions
others that were your arcomp!i<refl, you
oald not be a btranger to the evidence upon
phi<^b tliey were gi-ounded : you must there-
'Mre in all nrobabitity ha?e expected to have
June the same fate. If your coofession
s a real effect of your renen lance, you will
► the ad vantage of it in ine next world ; but
Fi^hitcoiittequeQce it will have in tliis, I cannot
Mf i «* For^he hewrt of the king it in the hand
of which important prepantlion j shall dismiss
you, first di^bargiu^ the court of the duty
now incumbent upun it, in giving^ that jod^-
ment which the law hath appointed. And the
court doth award,
' That you be conveyed fronj henco to New-
* ^e, the prison from whence you came, nnd
* from thence vf^o are to be draivu upon m
* hurdle lo Tyburn ; where vou are lo be
* hanjjed by the neck, and whfle yon are alivo
* to be cut down, your privy -meiabera are to be
* cut off, and your bowels to be ctitout of your
* body, and burnt in your viexr ; your head i^
* to l» cut off, and your body is to be divided
* into four parts, and your head and your quarv
* ters are to be disposed where his majesty hhaU
* apjmint. Ant I I pray God to have mercy
* upon your soul.'
Knight ley. My lord, I am truly sorry for
wimt 1 have done, and I humbly thank yoof
lordship and the rest of the judges for your fa*
vour to me.
Then the prisoner was carried back to New*
gate, and alWwards was graciously pa^rdoned.
'89K The Proceedings against the Three Nonjuring Clergymen,
Mr, Collier, Mr, Cook, and Mr. Snatt, for publicly ab-
solving Sir William Paikyns and Sir John Freind at Tyburn:
8 William III. a. n. iGgS.*
I
The publicly absolving sir William Perkins
tud *ir John Friend at the place of execution
made a grt-at noise at that time. Burnet smyt,
" A very umisual instance of the boldness of
lh« Jacobites appeared upon that oecasion :
these two had not chani^l tbeir religion, but
will C3il)eil ihomselve^ Protestants ; so three of
the Donjuring^ clerjjymen waited on them to
I'jrbiim ; twti of them bft«l been oft with Friend,
•wloiie of them with Perkin«> ; and all three,
It 'the place of execution, joined to fj^ve ihem
' "n abaolution, with an imposition of bands,
I view of^L the people ; a strain of irapu-
' kit wis as new as it %vas wicked ! since
^ ■Mos died owning the ill designs they
liiA wta riMfig^d in, and expressing no sort of
tyBliUit w tliem. lb these clergymen, in
tm mpIciiui ibsolatioo, made an open declam-
IMB of thdr allowing and juirtifyin^' these per-
•an* in «ll they bad been coucenied Jn. Two
«f ItuMD were taken up, and censored for tbis
10 tlie Ming's bench, the third made his
* See II. 140, of the preaenl voluaie.
Also
esGipe/' The Account published al that time,
by permission of the Sherifits ^s a& follows :
An Acconntof what passed al the Execution of
Sir William PcaKif«i, and 8ir SmiH
FaiENDp at Tyburn, on Friday, April 3,
169tJ.
The prisoners being drawn in a sletlge front
Newgate lo the place of execution, were per-
tnitled to have the assistance of three noojuriDg
niiaUters of their own chusiag> viz. Mr, Collier^
Mr. Cook, and Mr. Snatt. 8tr Uilh4m Per*
kins came first up into the cart, and liad some
prirate discoune with or*e of the ministers.
Sir W. Ferkim. When niU5t 1 delirer my
paper ? — MinuUr, When all is over.
Then the Execution ei went to put the rope
about sir William Perkms't* neck-
Hir W. Pa-hint, May not I pray before it
be put on ?
Executioner. Yei, sir, if you please. 4
Then sir John Friend came into the cart }
and tlie three uuiristera and priaoDersstl kneel*
ing down, Mr. Cook read some prayers out of
the iiiomiiig-prmy«f| lad the Oi£ce tor risita*
^.d^
407] 8 WILLIAM III. l^roceedhgi against Three Nonjunng Ciergymen, [40S
lion of the sick : and then the miDUten staud-
ing up, asked them, Whether they were in
charity with all the world ? and if they had
offeDded any, whether they did ask them
forgireneis P And whether they did desire the
abMlution of the Chnrch P Upon their answer,
that they did, they all laid their hands upon
their hrads, and Mr. Cook pronounced the
absolution, which ended in these words : " And
by his authority committed to me, I absoWe
tliee from all thy sins, in the name of the
Fatber,"&c.
Sir W, Perkins, When are we to deliver
our papers P — Minister, Now, if you please.
Sktriffl Take what time you please, Sir, for
your devotions, we will wait your leisure.
Then the two prisoners continued in their
priTiite prayers, sir W. Perkins making use of
the prayers in the Whole Duty of Man, and sir
John Friend read some praver out of a written
paper ; and afterwards, sir W. Perkins deii-
Tered to the sheriffs a paper.
Sheriffi If you require any more time, you
shall have it. You say this is your l»aper P
Sir W. Perkins, Yes, Sir ; and I desire you
to dispose of it as you think fit.
Sherif, Have vou any thing to say, by way
of coni&siou or denial, of the nict for which ye
conu hither to suffer ?
Sir R^. Perkins. What 1 think fit to say, is
csontainul in that paper.
Sheriff, if you desire any more time, yoh
may have it ; you shall have your liberty.
Then sir John Friend held a paper up.
Shcriffl What do you sa^j , sir John P
Sir J. Friend. Sir, here Ls a paper, I desire
it may be printed ; for 1 came here to die, and
not to make a speech ; but to dio, and to resign
myself to God ; and I desire it mny be nrintol,
for all people to see it. (For both their
Speeches, see p. 136 of this volume.) And I
have no more to say, but to beg of God to re-
ceive niy soul ; 1 rcsiifn my soullo him.
Sheriff', The Lord have mercy upon you.
Sir J. Frcind, I hope the Lonl will have
mercy on nic.
Sheriff, Sir John, if you desire any more
time, you shall have it; we will wait on you
with great %\illingnes8.
Sir J. Freind. 1 thank you, Sir. Mr.
Sheriff, 1 desire the cart may not be too hasty
to go away, till we give a sign.
- iShci'iff, You shall have your own time ;
talOe your time, communicate your own sign,
and the cart shall not go before.
Then !ht* ro|»os were tied about them.
Sir J. Freind. I have no animosity against
any man ; I freely ionriva all, and I liopc God,
forChriht's sake, will forgire me.
Then their caps were put on.
Sir / Freind. My Saviour had a crown of
tlionis for me ; the Lord recei\eniy soul ! the
Lord have mercy on me4
Then the Executioner asked* them both
IbrfiriveneKB ; and they answered. We freely
foiffivt* you.
Sir J. Freind. Will not the things lie in my
way?
Executioner, I will remove them. If yon
please, tell me when 1 may pull your caps over
your eyes. — Prisoners. When ypu will.
Sir \V, Perkins. The Lord receive my spi-
rit! Executioner, had I best hoM up my legs,
or stand in the cart when it goes away r
Executioner, It is best to stand, Mr, I think.
Sir W. Perkins. Bntthenmy teet will hang
in the cart.
Executioner. If you please, give me notice
when you will have the carl go away.
Sir J, Freind, Stretch forth thy anns, O
Lord, and receive my soul, and carry it into
heaven, I beseech thee! Ezecutioner» when
we knock, go away.
And alter a few ^aculations, they gave the
sign, and the cart drew away. — ^They both of
tlMm gave money to the Executioner; and
having hnug above half an hour, being a ooa-
sideraUe time after they were dead, th^
cut down and quartered, according to the
tence.
For this act of theirs, Mr. Cook and Mr.
Snatt were committed to Newgate, and ordered
to be prosecuted by the Attorney General ; but
Mr. Collier kept out of the way, and was not
taken. On this occasion, Mr. Collier published
the following Defence of himself:
A Defence of the Absolution given to Sot
William Perkixs at the place or Execu-
tion, April S, 1696.
My being present, and in some measure offi-
ciating, at the place of execution on Friday last,
has been extremely misunderstood. The
Weekly Intelligence, together with the Re-
marker, have 7:f^nsurc<l this action with a
great deal of liberty and heat. I thank God I
am not easily disturbed with intemperate lan-
guage, especially when it is given without oc^
casion. So that if mattei-s had g6ne no farther,
I could have passed -over the ill usage, and said
nothing. 1 confess, having received nottet
that some persons of tigure threatened roe with
imprison men t, I took u little care of onysclf |
ami as it hap|)ened, not without reason : ForoB
Monday about twelve at night, six or e^^
|>ersons rushed into my loilgingH, broke open •
trunk, and seized some pa|»ers of value, thougk
perfectly inoflTensive and foreign to their pur-
pose. And since, f undersund thero is a Bill
I'ound against me for Uij^h MisderaeMMMi.
And now one would think 1 had done i
thing very extraonlinary.
I shall therefore make a brief report of nit*
tcrs of fact, and leave the world to judge, wbt*
tlier all these censures and severities are de>
served or not.
Sir William Perkins (whom I had not aetl
for four or five ytma last past) after his.trii^
desired me to come to him, in order to his pm»
Juration fi)r another worid. 1 acconUaghr
visited him in New|p&te, as I thought m^-seir ■
oblfge«i by my character. 1 was pulio thefiH
of those who had leave to tee him bnffiMb
Jitr ahuivm^ Sir W. Parkyns and Sir J, Freind. A« D. 1696'.
[410
wsief, and bftd the 6rst two dnys tbe liberty of
eODfcnting iritb him m private. After^'ards I
iv«!» DOC fierinittet) to s|H;ok ar firay wttb biun
^one, A keeper bein^ alwttys present. At last
ereo tbis jicrmisstoti was recalled, Insomttch
that I coiikl uever see him from WedDesday
aMTBiii^, April the l^t, tdl Friday ot the place
of taieiilun]. 8ir William, being under an ex-
peotaliof] of deaili from the (ime of hifi Hen-
leoce, bofl pfiven iih* tbe stJile of hifi conscience,
•nil ' ' * desired Ihe solemn Absolution of
ibc u\^\\\ be prosoiiDCcd to him by
, viay. And luideiHtaDcling' 1 was re*
■iltftoce Oil Friday mornings, he sent
lb:&t lie would gladly see me at the
place of execution, 1 went tJnther, and ^ve
mm the Ab^olnlion he requested, il being- tm*
HbttcabU for me to da it elsewhere. This
B^ I jierforiiied word for word in form,
it it standi in ihe Visitation of the 8ick.
And now where lies the g^at crime of all
this? when n man has declared his sorrow
tor all tbe faultt and misL'4irriages of Ids life,
t(fua1ified himself ttjr the pii%ile£^e of ab-
tkon, with what ju!«tice could it be de^
bini? Ought not dyiny^ persons to be
toried iu their last ai^onies^ and pass into
olber woHd with all ihe advantage the
eliureb eao gfive them? I am surprized so
alar a proceeding as this sbonid fpve so
ich utfcnce, and make so much noise ai^t I
HVe it ban dot»e. Some people^ 1 under-
are displeased at the otBce being per-
nrd with Imposition of Hands, Now this
bot only an imioceut, but an ancient cere-
Ay of aoaolutlon. It was the g^eneral prac-
} of tbe primitive church in tuch cases, loog
Wow there were any exceptions to tbe Roman
CnDmunion. It is, in the opinion of several
Mifn and good modern expositors, referred to
i>y tbe Apostle, l Tim. v. $$. It is likewise
MMiibed the Assisting Presbyters in our own
iNiMliOD Form* But I suppose I need say
m mare in defeoce of this circumstance. To
proceed : others seem very much shocked at
tbf thing itself '» and think it a strange pre-
tumpcioii to admit a person charged with so
l%b A crinae, to tlic benelit of absolution. With
omianofi, this is concluding a great deal too
fait. Are all people damned that are cast in a
C^litd indictment/ if so, to what purpose are
tl^y Tititeil by divines, why are ihey exhorted
la fvytnlttoce^ and have tfme allowed them to
fltthcia lor deitb? Dot if they may be ac-
iMlid licreatter, notwithstandiog their con-
faftttmlton here ; if they may be recoTered by
reeotlttetioii, by repentance, ajid rcsi^^nation,
irby ahoold the church refuse tbem her pardon
m mrtht when lihe lieUeves it is passed in
boiwm f The power of the keys was given for
Ibis |>orpo«e, lh:a the ministers of God might
lied or loose, as tbe disposition of the pennon
ltn«d« 'file latter I sincerely believed to be
l^illiam*s case : I judged him to have a full
L to aU the nrivtlegies of communion : and
Imd I deoiefi bim abaoluiioa upon
I bad failed in my duty^ and
gone against tbe aatliorily both of the an-
cient and Enghsh cburcli. If it is said
that the nature of ibis gentleman's charge re-
4}uired bU being abftolv^ in private ; to this I
answer, so he bad been, had 1 been prrmitted
to visit him tlie last morning : but this liberty
was refused me more than once ; aud 1 hope
I shall not he blamed for impossibilities of otht;r
men's making. In short, be seemed very
desirous of absolution at my hands, as lieing
the only person acquainted with tiis condition,
Privatdy it was not in my pijwcr to give it
him ; so ibat he muj^t either receive it pubHcly
from me, or not at all. But sir Wdliam con-
fessed himself acquainted with the intended
Assassi nation « Pray, did he confeii:^ it to me.
and have I revealed any part of hi^ cotifesaion?
Then I ba«l been gudty of High Misdemeanor
indeed ; I bad broke the 1 13tb canon, and been
pronounced irregular by tlie diurch ; and he
that falls under irregularity, is for ever after
inculpable of executing the office of a priest.
(Dr. Hevliu's Inlro<htclion to Cyprian, Aug!.
p. 6.) I confeas there is an except ton in the
canon, but that does fiot reach the case in hand«
even upon the largest supposition. Well !
But sir William owned thi«* charge before the
Committee. How coukl I know that ? I oei-
ther saw t^v William after bis examination, till
Friday noon, nor the Votes which meotloned
it till after that time. But he contest it in
his Paper. What then? Which way doen tbe
Paper concern me ? It is well known sir Wil-
liam Perkins was a man of sanse^ and bred lo
law and letters^ and needed no help to assist
bim in ^vriting a few lines^ Besides, I was
not permitted to come near him tor more than
two days before be suffered: neither vias he.
allow€(i so much as pen and ink till the last
morning. Then it was that be pennetl his
Speech, as I am told by tboso who were pre-
sent; and having read it before the Keej»er«
delivered a copy of it to a friend, which was
not shewt^d to me till after the execution. In«
deed, I did believe he would leave some paper
behind bim, both because it is customary uport
such sad occasions, and because on Tuesday
night, when be expected death on Wedoesrlay,
be desired pen, ink and paper, for that par*
pose.
And now, afler all, I desire to knoir in what
single circumstance I have misbehaved my-
self, or done any thing unbecoming my pro*
fession ? It is very hard a man must be perse-
cuted for performing tbe obligations of bis of-
t^ce, and tbe duties of common friendship and
bumanitv. As for any methods of murder, I
diblike them tiu less than tbo^ who rail loud*'
est ; and nothing but a mercenaiy malice could
suggest the contrary : but if the functions of
Ihe priesthood, and tbe assistances of retigioa,
and the leading the public Liturgy, are gfrow*
a crime, I am not concerned at the imputation.
I hope tbe complying clergy wilt take some
care to check the diiordei's, aud inform the
ignorance of their people a little better. If
tbcy are unrvproved for iheaa slanderods «i-
411] S WILLIAM III. Proeeeditigs against Three Novjurin^ Clergymen^ [4 lie
ccssefl, their pastors must ooe day expect to : tion \titb an army of French Prnpista, fur the
account for it. ; ruin of their country, and the exUrpaiiou of
As for those io power, it is possible they | that religion which liiey themsdres do pro-
may bs^ve been governed by mis-reports, and i fess.
sumleii resentment: if so, second thoughts and 2. As for sir William Perkins, nho also pro-
the reason of the case, will put a stop to their j ft^sseil to die in the communion of the church
severities, and that this may be the issue of the ; of £ngland, we cannot think hp meant any
business I thmk myself obliged to wish, as thing else by it, tlian that he adhered to the
well for their sakes as my own.
April 9th, 1696. Jer. Colueji.
On this occasion the following Declaration
of the Archbishops, &c. appeared :
A Declaration of the Sense of the Archbishops
and Bishops, now in and about London,
upon the Occasion of their Attendance in
Parliament, concerning the irregular and
scandalous Proceedings of certain Clergy-
men, at the Execntion of sir John Freind
and sir William Perkins.
We the Archbishops and Bishops now in and
about London, upon occasion of our attendance
in pai'liament, having seen a printed paper,
intituled, ' A true Copy of the Papers delivered
< by sir John Freind and sir William Perkins
< to the sheriffs of London and Middlesex, at
'T^bnm, the [ilace of Execution, April S,
^ 1696 :' and beinff also certainly informed of
tlie most irregular oebaviour of Mr. Cook, Mr.
Collier*, and Mr Snatt, in pretending to ab-
solve the said criminals at tneir execution, to
the groat scandal of the church, and of our
holy religion, have therefore thought ourselves
obliy;e4l to declare our sense of the same, as
here followcth :
1. As to the Paper before mentioned, we
cannot but observe, that in that part to whicii
sir John Friend is intituled, among mauy other
things there delivered as his private opinion,
(for which we must leave him to Goil) there
are niinglcil some things conccining the
church of England, to the great dishonour and
reproncii of it. That venerable name is, hy
the author of that paper, appropriated to tiiat
part of our church which hath srparaliMl its(*lf
Irom the body ; and more particularly, to a
faotion of them who are so furiously bent
upon the restoring of the late kiu!;-, -that
they seem not to regard by what means
it is to be elfccted. We have a sad insUmce
of it in this very person, who (as was deposed
at his trial) was privy to the horrid desi^fo of
Assat«ination, aud yit neither discovered it.
same violent faction ; being assured (as we arc
by very good inlbrmation), that both he and
sir John Friend had withdrawn themselves
from our pidilic assemblies some time belbrs
their death : w hich makes tis the less wonder
to find in both their papers so light, and even
favourable, a mention of that most inhumau
design of assassuiatin^ his sacred majesty : and
especially in that of sir William Perkins who,
though be was publicly convicted of his having
engaged so many in that horrible sin, yet after
all, could think to clear himself of it with this
wretehed excuse : < It is true f was privy to
' the design upon the prince, but was not to
' act in it.' BlesMd lie God, there never vu
any of our church, that in any change of
times could have this laid to his charge, that
he was so much as privy to a denga m assas-
sination.
Lastly ; For those clergymen that took apra
them to absolve these criminals at the place of
execution, by laying all three tog«?tber their
hands upon their heads, and publicly pro*
nouncing a form of absolution ; as their man-
ner of doing this was extremely insolent, and
without preceilent, either in our church, or any
other that we know of ; so the thing itself was
altogether irre^^ular.
The rubric in our office of the Visitation of
the iSick, from whence they look the words
they then used, and upon which, if ujxin any
thing in our Liturgy, they must ground this
their proceeding, gave them no authority uor
no pretence for the absolving these persons;
nay, as they managed the aHair, they acted in
tiiis absolution far otherwise than is there di-
rected.
That rubric is concerning sick persons ; and
it is there required, ** first, That the sick |ierson
shall be moved to make a s|>ecial confession of
his sins, if he feel his conscience troubled with
any weighty matter: and then, alW such con-
fession, the priest shall absolve him, if he hum-
bly and heartily desire it.*' Hut here they
absolved, and that publicly, persons condemneil
by law for cA'ccrable crimes, without so much
as once moving them at that time to make a
nor shewed any dislike of it, but as he was special confession of their sins, at least for those
afiraid it might ruin king James and his afiairs ;
and was ready also, together with others of
the same Christian principle (as the author of
his paper is bold to call it) to act in conjunc-
* " This Mr. Collier was a very learned
and ingenious man, audthe author of the (ireat
Historical Dictionary, in folio ; of the Eccle-
siastical History, jn folio ; of the View of the
Stage; and aumy other pieces,''— Former
Edition.
sins for which they were condemned. And oil
the other side, here were ])ersons absolved that
did not humbly desire absolution, as feeling
any such weighty matter to trouble their con-
science ; but on tiie contrary, in sir John
Friend's Paper it is declared, that he had i
great deal of satisfaction in suflering for thai
cause, whicli he firmly believed to be the cause
of God, and true relision.
If these ministers knew not tlie stato of these
men's souls, before they gave them absolatioa
r absolving Sir n\ Parkt/ns and Sir J. Freind, A. D. 1696.
E414
nifest tvro of them, Mr. Snatt and
did not as to sir William Perkins
is; since declared that they had not
I sir William till they wore at the
eciition), how could they, without
an<:gres8ion of the church's order,
the prophane abuse of the power
h left with his ministers, absolve
all their sins?
were acquainted with these men's
declared in their papers, then they
ipon them, either as hardened impe-
ls martyrs.
so charitable to bcliere that they
absolve them under the former no-
at had been, in effect, sealing them
:>n : But if they held these men to
c, then their absolvin^if them in that
IS a justification of those grievous
which these men suffered, and an
It to the laws both of church and
e consideration of these things, and
'.:\^ of riprht to cur church, which
wise suffer, among such as are
0 our constitution, by the evil prln-
practires bi>th of the aforesaid cri-
J the three clergymen that assisted
all pretended to lie members of the
Eci4(land ; we do declare, That we
1 detest all such principles and prac •
ng upon them as hit^nly schismati-
iT:ous,dan<;crous both to tho church
md contrary to the true doctrine and
ic christian religion. And we also
pension to \tarn and exhort ail the
omitted to our charge, to beware of
:ers, and to avoid them ; lest (as the
Peter sueaks) * they be led away
■ror of the wicked,' and fall from
ist adherence tu the principles of the
:li of England, as it was established
sed reformation of religion, and as by
Eci*;il providence it continues to this
il lOtb, 1696.
iDtuar.
Sy. Eliens.
r.
Gil. Hereford.
Jon.
Jo. Norwich.
esme.
Ric. Peterb.
rliester.
Ed. Gloacester.
. and Lich.
Rob. Chioherter.
iffen.
£. Asapb.
Defetice of the Absolution given to
lliaro Perkins, occasioned by a Paper,
id, «' A Declaration of the Archbi-
ind Bishops," &c.
fortniglit since I published the fore-
fence of the Absolution given to sir
Perkins. It is true the vindication
-awn out into any great length, nei-
imagine it iicce»5ary. That which
was in mjr opinion sufficient to sa-
candid and impartial reader. If the
was any where over -contracted, it
was in that part which mentions imposition of
hands. Here I confess the proofs were hut ge-
nerally named, and the force and improvement
of them \ei\ \\i some measure to collection.
My desire to undeceive the people, and to si-
lence their clamours as soon as might be, the
disadvantage of my retirement, and the plain-
ness of the case, were the reasons why I was
no fuller u|)on that head : But now I have a
fresh opportunity to treat the point more at
larj^e, tne late Declaration, &c. of the bishops
having given me a just occasion to resume the
argument. 1 must own the perusal of this
Declaration surprized me very much. I could
not imagine these reverend prelutes would
have published se unsu|iported a censure; nor
cngai^ed their character so far in this affair, f
am almost amazed an iimoceut conduct should
be thus misconstrued, and the charj^^c run so
high without proof, or provocation to defend it.
The Declaration begins with some remarks
upon the Papers of sir William Perkins and sir
John Friena : These exceptions I shall pass
over, as being unconcerned in their defence. In-
deed, my resolution upon ihc whole is, to en-
gage no farther than the justification of my
own conduct ; as bciu;; unwilling to have any
unnecessary disputes with these it^vercnd pre-
lates.
The pretended irregularity objected against
Mr. Snatt, Mr. Cook, and myself, relates
wholly to the Absolution given to thoso two
gentlemen at the phcc of execution. The
performance of this office, the bishops are
pleased to say, " was extremely insolent and
without precedent in the manner, and altoge-
ther irrcj'iilar in the thing."
I shall endeavour tu justify my practice
against every point of the accusation, and prove
the Absolution defensible, both with respect to
manner and form, to persons and occasion.
And, 1st with respect to the maimer. And
here I sliall make good three things.
1st, That giving Absolution with imposition
of hands was the general practice of the an-
cient church.
Sdly, That the performance of this cere-
mony was allowed to priests, and sometimes
to deacons, as well as bishops.
3dly, That imposition of hands is enjoined
the araisting Presojrters by our own church ia
the office of ordination, and by parity of reasoa
is fairly applicable to the present case.
First, That giving of Absolution with impo-
sition of hands, was the general practice of the
ancient church.
To begin with Tertullian, who lived in the
beinuning of the third century. This father
understands that place of the apostle, ** l^ay
hands suddenly on no man,'* (1 Tim. v. 22.) of
the offices of penance and abdolution. (L. de
Pildic. cap. 18.) And fcap. 'i^i.) he alludes to
the same custom in tliese words, " Carnem
lanaitam prosterncns," as AlbaspiniuusobserveSf
(Albasp. Obser. I. X p. 97. not. in Tertull. p.
181). Indeed the de^iign of his book, De Pu*
didtb. plainly determines the author. to this
415] WILLIAM IIL Proceedings against Three Nonjuring Clergymen^ [416
sense. Here he treats proFesseclly of those who testiinunies ruD much in the words of tbc
were to be finall;^ excluded froiu church com- i former, I shall wave the recital.
uiunioD, and denied the discipline of penance. | This father, in his 18lh Ep. tclts his priesU
He disputes nothing about Coofirmatiun, or i and deacons, Tiiat '' they need nut expect liis
Orders ; ko that it is evident the imposition of ' coming hume, to reconcile the lapsed ; but it'
hands, mentioned bv him, must relate to peui- ; anv ol the laity were in danger of death, a
tential absolution. ' | priest, and if a priest could not be had, and ibe
St. Cyprian's council of Carthage is express | necessity was extreme, a deacon was a suili-
to the same purpose. Here Ncmesianus, ' cient authority to hear their confession, to lay
Crescens, Secuudinus, andVicentius,bishoiMof ! hands upon them, andjc<msign them to tb'e
Thubuni, Cirta, Carpi, and TiberiH, all of tliem ^
ag^ree, that the church's peace, and the expe-
dients of reconciliation, were to puss through
this f<irm of imposition nf hands.
The 80th canon of the fourth Council of
Carthage enjoins, That during the whole time
of abstinence, (1 suppose either stated or occa-
sional) the priests (Sacerdotes) should lay their
hands upon the (lenitcnts.
The 11th Canon of the third conncil of
Toledo, in the direction! for the methods of |ic-
nance, is positive for the frequent use of this
ceremony ; ^^ hich made Albaspinseus conclude.
That absolution- prayers and imposition of
bands were repeated and customary in such
cases (Atbasp. ObserF. 1. S. p. 86.)
To conchide this point. The learned Dr.
Hammond, in his Annotations on the text
above-mentioned, (1 Tim. r. 22j refers the
layini;^ on hands to ubsuhition. *' The Aftostle"
says he, ** exhorts Timothy that he should not
make too much haste tr) receive those who
were under censures, to alisolution. For that
was the thing which would most probably
make him partaker, or guilty of their sins,
which the censures were designed to reform in
them ; but would not do so, if, before they had
approved their repentance and reformation,
they wtflTc received to the peace of the church.''
This learned divine cites a great man\' autho-
rities in (letcnce of his opinion, which tlie reader
may consult at his leisure.
peace of the church." The same advice, upon
the same occasion, is repeated, £p. 19. p. 41.
From whence it is evident, that impositi^iHi nf
hands was no resertetl incommunicable priil-
lege of the bishops, but delegated as low as the
deacons upon emergent necessity, and visible
approaches oi death. These authorities of St.
Cyprian are all double charged, and prove two
points at once. They prove, that inipositioa
of hands was a genera] appendix to absolution,
and that it was within the commission of tb«
priest to officiate in the ceremony. To pro-
ceed:
In the 13th canon of the first council of Nice,
the Viaticum is ordered to be given to thow:
who are at the point of death. And by the
Viaticum, Albaspinsus proves, that absolntioa
with imposition of bands was meant, and uoC
the Eucharist : and that an absolution miebt
be given by those who were no more t&a
priests. (Albasp. Not. in quesdam Can. p. 1S1.)
1 could amass a great many more testimoiiirt,
were it necessary ; but I con(*rire, what has
been said already, may be sufficient to vioili-
cate my practice from the charge of encroach-
ment and singularity.
Thirdly, Imposition of hands is enjoined the
assisting Presbyters by our own church iu the
ofKce of Ordination, and by parity of reason i»
fairly applicable to the present case.
ft our church had thought the imposition of
hands too ranch for the character of priests,
ISecondh', The pronouncing the absoliuiou she would not have prescribed them a share in
with imposition of hands, is no encroach inent
upon the i piscopal authoritVt but pbiiilv al-
lowed to the order of Pi-esbyters.
This point 1 shall make good from stjvcrul
plain tcsiiuionies of St. Cyprian, whose au-
thority must be granted to be unexceptionable,
both with respect to the antiquity and character
it at her ordinations. But since bhe has allowed
them this liberty in the most solemn exercbei
of authority, why should she deny it in inferior
cases I* To assist in the conveyance of an au-
thority seems a greater mark of power, thin
the executing any branch of the authority con-
veyed. If the Presbyters are permitted to lay
of the person. Indeeil it is to this father that ' iheiihandsunontheclergy, why not, a/iwiori^
we are principally obliged for the remains we > upon the Laity ^ St. Hierom affirms plainly
have oi the discipline and government of the (Kp. ad ]<>agr.) that the powers of a priest
primitive church. ' comprehend those uf a bishop, excepting m the
Now St. Cyprian is categorical in the case, ! point of Ordination. Our church has never
and affirms roundly, that '* in lesser crimes , condemned this father's assertion ; why then
than thosttofthe lapsed, tlie penitent could not , may not the 6rst absolve with imposition of
be admitted to full communion, unless the hi- | hands no less than the other?
shops and clergy had laid their hands upon [ But there is no apponitmeut of this ceremony
him." ' Nisi prius illi ub Kpiscopo et Clero : in the Absolution Kubiick. True: neither it
there any prohibition. The Rubrick is per-
ieclly silent Inith as to posture and gesture, and
yet some circumstances of this nature must of
necessity be used.
Now since our church allows the priest im-
position of hands in another case, and does oot
Torbid it iu this, is it any harm if our liberty
* manus fuerit imposita.' (Hp. 17, p. ^9.
Ed. Oxon.) Now where the bishops and
clercT) are thus contradistinguished, the order
of prie-.ts must be comprehended in th<i lat-
ter, in the mo.«it restrained construction. J
rni^ht produce his 15th and ICth Ep. (p. 34.
37 ) for the same purpose ; but l)ecauso these ■
417] for ahsoivlng Sir IP'. Parlc^ni and Sir J. Freind. A* D. 1696.
moves apward, and detenninen it«?elf by ge-
neral usage and primitive practice ? Our church
has always professed a re^^ard tor the patterns
of antinnity : we cannot ^o her a greater ho-
nour, tbaa by conformin;;^ to the sotenmitieA of
the purest ages, than by^making the dLsciphne
of fathers and couociUthe ru*e of otir br^!i:i-
fiour:* especially iiheu we are not bound np
by national law and particular constitution.
Tims much for the manner.
I oome now to justify the thing and the oc-
casion.
It is objected bjr these reverend prelates, that
the three *^ assisting clergymen ]>i*on(>uiK'c>d a
form of absolution," cSec. With <iubniission, 1
ho|ie a form is better tlian no tbrin ; rspcrially
when it was a form rubrically ap|v»intcd ; a
fiirm drawn up by the public autliority of the
rhurch, confirmed by <.-anon, and act of par-
liament ; a form the most pertinent and prfiper
to the occasion of any in the Liturgv. 1 am
sorry to bee the solemn oiHces of religroii men-
tioned with such seeming coidn(?ss, uuil ahate-
ments of expression. V\'ereit not that 1 am
na willing to give these reverend prelates the
trouble of a question, 1 would gladly under-
stand, what ibrm they could have 'fixed on
more suitable to so sad an occasion ? I am sure
that form of absolution is the most solemn and
authoritative of any in the Service- book. Now
if ever the chnrch 'exerts herself, oupfht it not
to be in cases of the greatest necessity? Can
ber most comfortable administrations, and the
bigbcNSt acts of her anthority, be better em-
ployed than for the relief of dying {icrsons,
who are combating the king of terrors, and
Stand just upon the brink of eternity ? IJpon
the whole, 1 am surprized they should say the
" Rubrick gave us no pretence of authority to
absolve those persons." Does not the Rubrick
eive the priest a power to nronoimce the abso-
lation, and to judge of the condition of the
penitent ? This cannot be denied. And why
thai had we no pretence of authority ? *' De-
ctuse the Rubrick relates to the sick." To
tbis I answer ; had the church lell us a stated
office for persons condemned, and we had
refused to make use of it, there had been some
force in the objection ; but as the matter standn,
I humbly conceive there is none at all. The
church, without question, would have con-
<)emne<l persons taken care of, as well as others,
and their spiritual necessities supplie<l. And if
so, is it not more respect to the church to ofii-
riate in forms of her own setting forth, than in
private and unauthorizeil compositions :' And if
the function was to be nerformed in the public
devotions, I desire to Know what part of them
could have been more proper than tlic Office of
* ** Bishop Sanderson, that eminent casuist,
about a day before his death, desired his chap-
lain, Mr. Pullen, to give him altsolution ; and
at bis performing that office, he pulled off his
cap, that Mr. Pullen might lay his hand u|>on
his bare head." Walton's Life of bishop San-
drrson, p. 91t Former £ditJ0B.
VOL. MIL
[418
Visitation of the Sick? If we consider tlie
design of the church, and especial] v the
Rubrick before the absolution, we shull find
that she intended this office to prepare jteople
for the other world, and considcrtHi them raiher
as dying, than likely to recover. This appears
evidently from the* questions and advict^ or-
dered to' be asked and given ; so that wherever
death is in view, the office cannot be ur.sea-
sonable, nor misapplied. And can any per-
sons be more certani of death than those A>ho
arc publicly condemned, who lie under fatal
senlence, and irrcfsistilde po\vcr: who have
the force of the county to dispatch them, and
are just ready to receive the stmke? As to the
previuns qircstions, they were put und an-
suertsl, tlic absolution was dc^i^t^l, and the
confession rcceivetl in prison ; afd in shnrt, the
church's directions wi le ob-scrvci' iu «'\ery par-
ticular. But we *' <iid not move iht^iu to* make
a special confession of tliiir sins at that time."
With submission, whciv lies tlio nerossity, or
even the c.vpwiiencv of si.ch a practice ? Does
our church oblige dying persons to public con-
fession i* Does she require theiu to tii row open
the retirements of conscience, riud tV.e secrets
of private life, to the \ iew \)\' the world ? I am
at a loss to understand why we should be
charged with omissions on such accounts as
these.
The Declaration, &c. proceeds with great
vehemence, and charges us with <* manifest
transgression of the cnurch's order, and pro-
phane abuse of the authority of Christ."
These are hanl words, but I hope altogether
undeserved. It is true, they instance only in
Mr. Snatt, and Mr. Cook, biit 1 must own the
objection lies equally against myself; for I
never saw sir John Freind during bis whola
imprisonment. But in assisting at his abso-
lution, so fur as laying on my hand amounts to,
1 did no more than what is easily defensible. I
grant I had no immediate and particular know- .
iedge of his condition, neither was it neces-
saiy. Our church, in conformity to antiquity,
has made the priest the proper judge of the
qualifications of the penitents, and supposes
him fit to be trusted, and believed in that affair.
Now Mr. Snatt ancl Mr. Cook (upon whose
judgment and integrity I can very well depend)
held given me a general account of sir John's
pious dis))Osition, and that he was well pre-
pared tor all the assistance the church could
give him. The having so good iuformatiou
from first hands, from jiroprr and authorized
judges, is sufiicicnt to warrant my part in sir
.lohn*s absolution. This, bt-sitles what has
been saiil, I shall make good from two parallel
instances.
First, It is well known that bishops of the
ancient church used to give a sort oi' certifi-
cates to those that travelled ; l»y virtue of
which, they were not only entertained and ac-
commodated, but admitted to full commimion
all over Christendom. (Albasp. Not. in Con.
p. 115.) From whence we may observe, that
personal acquaintance, and |«rticular exami-
3£
419] S WILLIAM III. Ptoceedings against Three Nonjuring Cletg^meMf [4S0
nation, are not necessary to ffire a rigbt to the
privileges of Christianity. Where the creden-
tials are good, the church is to enquire no far-
ther ; she is to presume upon the probity of
the person recbmniended, and to treat him ac-
cordingly.
Secondly, Our o\Tn church, in some of the
highest acfministrations, acts upon principles
ortrust and confidence. She conveys her pri-
vileges, and exercises her authority, without
always insisting on personal inquiry and imme-
diate proof. At the giving of holy orders,
neither the bishops, nor the assisting pres-
byters, are always peraonally acquainted with
those they ordain. The prudence of our
church docs not tic us up to such unreasonable
rigours. Both practice, and the onlinatiou
form, suppose the contrary. And why tlicn
may not the priest assist in absolution as well
as orders, without any previous ex|)criment of
the state of the person ? Why may not he in
the first, as well as the latter branch of his
authority, act upon the warrant of unexcep-
tionaMe testimony P By all jiarity of reason
and force of couse(|uenco, the practice is no less
defensible in one c^ise, than in the other.
If it is objected, that the joining of all the
three clergymen in the imposition of hands
is unprece<lentcd, and exceptionable ; to tliis 1
answer, that if the action was lawful, singly
performed, I «»nnot imagine how a concur-
rence of more authorised {lersons should make
it otherwise ? Is there any hami in union and
solemnity ? Or can rclifri^n be treated with too
many circumstances of advantage ? What
Canon is there that btiuts the assistance to one,
and forbids a plurality of persons ? Timothy
had the ** hands of the Presbytery laid upon
him," (1 Tim. iv. 14.) which without doubt,
exceeded the number now objected. Our
church, at her ordination, allo^vs this cere-
mony to all tlio Prcs!>\ ters presrnt. And in
the very rase of absciliition, the Penitent was
to receive ini{M)sition of hands from the bishop
and oleriry ; as iiiiftears from the testimony ot
8t. Cy priiin above- mentioned. Farther,
Thi'sc Iteverend Prelates argue, that '* we
must either luck nn the persons absolved as
Jmpeuiients, oi Martyrs;" and they make
their advaului^c ^i' eAch branch of the suppo-
sition. ]>iir, n ii'i .submission, 1 see no neces-
sity of jr:".t'tii»'.»: til.? disjunction. For there
may be atiiiul way m' considcrintrtlic niaitn*.
'1*0 speak to io\' own case : 1 absolved sir WiU
liani Pt-rkiiis nfi a Penitent ; and i snpiiose
every buily uiust lie alisolved utuler that consi-
deration : f(»r ubsolution siip|»oiies both sin and
repentanv'C, in I'le noti«it) ui'it. Hut as for thi3
tnaUcr of sir Wiillain's rppentance, tiiat is
iiewi* l.kcly t(i !)o knuttn from nit*. Neither
am X in xUr* K-uht aii'ectetl uitu ibc liishops' in-
fi'jfnui.'. Tor si:|iposh)g I iviti^vd a dcirotivc
ccinfession, am i uccouiitable tor that i How-
ever, 1 neither do nor um obliged to declare
uiy opinion iu this matter. But thus tar J am
]iosaive, that there %vas nothing confessed to
me, which the cauou obligcii me to rereul : and
what the canon does not eqjoin rae to diaooreri
it enjoins me not to discover. (Can. 115.
Vid. first defence.) And so there is an end of
this dispute.
I hope by this time it may appear, tliat I an
neither untumished with reason, or preMdealv
to justify what 1 ha?e done. However, I
shall give one late instance for the whole cue,
and so conclude.
At the execution of Mr. Ashton, Jan. 1690^
absolution was given him in the nme ftni,
with imposition of hands, at the tame plm^
and upon the same occasion ; and a jiiilifvifl|f
Paper lefl by the person thai raffered. Kov
at that time there were no ezceptioM mida
either to manner or tliin^f . • The performanei
was 80 far from displeasing, that the shcrif
gave his thanks for the soleinnity of the idkit.
There were no comphunts either at Lambeth,
or Whitehall, no public invectives, no sdrag
of body and goods ; in short, no rigns fd A
least dissatisfaction. And who could imagktti
that the hare repeating of an actinn smli
raise such a storm npon us now, which WH
so perfectly inoffensive before P To puoidiia
this manner, without warning or pif«edailt
without canon or law, is (with subminN)
somewhat unintelligible.
And now having defended myself, I iM
reply notliing to all the unkind reflertJMii^
and tragical language of the Declaration. It
is probably within my power to turn aomeif
these reverend prelates artillery upon tbok
But my regard to their character, and incli-
nation not to displease, makes me wave As
advantage. However, tlieir extraordinary nafs
has done me the honour of an opportunity is
forgive tliem, which I thank God I heartily 4i.
April 21, 1696. J.C.
P. S. I have just now received a sbeel,
called " An Answer to my Defence," &c. Al
for that little which is material in this Paper,
it is already satisfied, and I do not love needk«
re)ietitions. And therefore to begin and end ia
a word with this answerer; If he has any
thing remarkable, it is, in my opinion, bis ul
language ; and that I can both pity and de-
spise. April 35.
There were several pamphlets published on
this occasion, against and in defence of thil
proceeding, but these are sufficient to shew the
nature of the controversy.
In July fuUn\vin<r, Mr. Cook and BIr. Snitt
wtfio broil !jrht to the court of King*s-beiich|
and the Procccdini>s against them are tbitt
hricny related in CoiuberlKich^s Reports, p. 383,
Sitting iu Middlesex, coram Holt, chief justice,
July 2, 1096.
U£XTc;i. SiiADRAru Cook et Wnx. SnuXtf
Clcricot,
Indictment for absolving Traiton.
IJpcn an Indictment setting forth, Thatil
John Freind and air Wiliiam Fetkioi MV
Ai^
Pro Rfg^,
8tf Witimm Willifttns,
in?nil,
(Jowper,
Mouma^iK
Hit VrA, Winniijgtou,
Bfr. Brfwlenck,
Mr, Pliipps,
Mr. Mom[>e%son.
IJ J!^r aiiolviHg Sir fV, Parkj/ns and Sir J\ Freind. A. D* 169^
Ifr and aiiotit to be eieciile<1 at Tyhiirti,
traasoOf ^c. the tleleiidsitits conj»piring
iintetidifig (fts much A'a in them Uv) to juni-
or mi [east to exti ivuate tind l(^!«€n tlieir
•ail I*' s invjt'siv^B fcul>ie<.is i*>
Ibat til latbcr fts* martvi^ Ihiui
m, ami lo incUe the kirig^^s suhjects in
the hke lrc:isoD«, they «lnl tulie upon
to iib»4»|\ e« aiifl dill pronoimcc a form of
ylifm ofthetn the SitHl str William Perkins
■ir Joba Fmnd, without any r<!'i>enlancet
\y ligiii of repentance by Uiem g-iven,
provedt thai the defeDtfanls asked ttie
la the several quc'stions directed by the
Bafaricdc id the office ol' Visitation of ttie '8ick»
W4 Mr, Cook iironoQuced the words of absoht-
IJB «»f one of tkie traitors ; Mr. Snails and one
^^C^ltter, (nbo is not now indicted) laying^
^^r bAods upon his head, and after (he words
fvonouncedf iaytng* Ameo ; and Mr, Col her
ouneed the' words as to the other traitor,
> laying^on their bands, i^c. It was
ihe defendanis were e*rnegtly re-
ity sir VVilliam l*c.Tkins ami sir John
If to assist them at the place of execution ;
therefore tJit' jury were directed to acquit
of ronspirar;y (thongh the attorney*ge-
said the indictment wa9 not for conspi-
, acd ^ cotjb pi rallies^ wai put adjectively
to introduce the other matter, and ihtre-
was not material) : and Holt directed the
, that this proceeding of the defendants
certainly scandalous and irregular ; for if
cniiiinals hud before made a prirate con-
lotit ^*^ uUolutJOo shouhl have been private
bkcwbe ; but if they would give a public ab*
!D> they on^ht to have required as ]»uHUc
and particularly with res^pfot to
crimes for which they were atiaiuteil,
beta^ so notoriouji, Sec. However, if the jury
[4Sf
•ere of opininn ^ihey' did it only i^noi-autly,
md by niistakei (in which ease it is properly
COfmuiiahle ui the spiritual cnurl> then to acquit
fbetn ; hut if they did it with a desisru to
iffrcm the trovernuient and to idify the justice
«l ' I, then to tiud thero guilty : hut at
tbc c>f the defendants counsel, it waa
directed to be found specially, that Stiatt laid
llii ImiKi on the head, and was ausistautf wliile
Ib^ olb«r pronouured the words of absolution,
md afkirwirds Snatt said, Amen (i( faeingf bid
jood pronuncittverunt). And accord iu^fly the
jixry iiCfpiitU'd them of (he oof»piracy« and
fimad Cook guilty of the rest| and as to Hnatt,
«1 »ttprfl.*
* S Modem, p« 3a3| reports the Caae thus :
T«B Midi. 9 W. 3, B, R, 1697. Rex vers.
Cookj ijuatt and Collier.
•* They were found Guilty upon an Indict-
meot for the following crime, $*, Hir John
Freind and sir Wilham Perkins were convicled
Ibr hi^h treasou, in conhpirinir the detith of the
lung; aiui the dr ' ' r^ T r t present with
llhtm aft the plao. 'I.allof tht'tu,
Jty dicif hiBd^oupii ^vuu ; »^^ud| who shewed
When this Special Verdict was argued^ or
how this matter ended, doc« not unpear . but
at the sale of the earl of t '^ Manu*
scripts, in Corent-Gar*ien, A the Ibl-
lowing Argument was puvciiaM.>ii m 3tanu-
script.
The King against Cook andHsATT,
It is an indictment for a mi^deuieanor on
which a Special Verdict is found. I am, hy
your lordship's appqhitment, counsel for llie
dplendants.
The indictmctit sets forth, That whereat
sir John Freind Jind sir William Perkins were
severally convictetl and attain tcil ot hijjh (rea-
son, in conspiring the death of the king, and
ailheriitg to his enemies, and according to due
course of law, and judgment thereon severally
given, were drawn to Tvburn, to he there put
to death ; Jeremy Collier, and these two de-
fcndaots, well knowin^f the pretnisi^s, but in-
tending to withdraw the kingS subjects from
their allegiance, and to -'ncite them to commit
the like ir^iisons, at tlie gallowK, being in the
c^rt with sir John Fremd and sir WilUam
Perkins, and immediately before their exef!u-
lion, conspiring, designing, and intending that
execrable, horrible, and detestable hi^h treason,
fur which sir John Freind and sir William
Perkins were attainted, and then iusLantly to
die, according to the course of law, to justify,
or at least to extenuate, diminish, or set al
nought ; and to insinuate into the king^s sub-
jects, and persuade them, that sir John Fiviud
aud sir William Perkins were about to die io-
nocent and undeser? edly, and rather as mar-
tyrs than traitors ; and to incite theking*s sub-
jects to coniiint the like treasons, and unlaw-
fully and contumaciously, as priests of the
church of England, in the presence and sight
of a great concourse of people, and in the hear*
lug of a gieat many of them, laying their
hands on the heads of sir John Freind and sir
W^illiam Perkins in the said cart, then and
no repentance for tlie rrima for which he was
about to die ; and Cook pronounced the Abso*
lution, aud 8natt atid Collier said, Amen.
'' That they all throe likewise laid their
imnds on sir William Perkins, who was like- .
w ise impenitent of (his crime ; and CoUter
pronounced the Absolution, and Cook and
Snatl said, Amen ; aud that they all assisted
and assented to the said Absolution.
** The jury mada a specisl conclusion in
their verdtct, Whether the !tiyiagon the hands
of three, and but one at a time pmnouncing
the Ab^lution, makes them all guilty of tba
whole matter?'* Adjourn**
433J 8 WILLIAM III. Proeeedingt against Three Nonjuring derggmm, [4S4
absolution. Therefore, to rediicie it all to i
case oil this indictment, I take it, thcie gen-
ticmen (cftpeciully Air. Cook, for Mr. Snalt'i
case fioth Fomeuhat differ^ did publicly ab^
solve sir Joiin Freind and sir VVilbam Perkini
as they were about to be executed for higl
treason, without their particular repentano
publicly declaretl for the crime for which the]
suffered. And I shall buoibly aubmit it ti
your lordship, whether tliis be any ofience n
these gentlemen, or in either of tuem. Thq
were persons, that by order, at least by lean
of the court when sir John Freind and n
William Perkins were attainted, were permiltei
and appointed to officiate with the eoodenuMd
criminals to prepare them for aoother wary,
when they were about to leave thia by the
judgment of our law. Accordingly they off-
ciatetl, and were several times with the ooo«
demncd criminals in the prison ; where m
ina^ very well presume, that th^ braogbl
their penitents to a particular coDleasioa M
repentance, though we could not prove it M
the trial ; because the |>enitent was dead, ui
the absolver the nerson indicted.
And besides, the absolver was not obUgadta
discover the confession ; nay, it is expresriy
forbidden by the 113th canonof our diurobi
made by the convocation in the year 160S|
which was called by the king's writ, and ooa*
firmed under the great seal, according to ths
form of the statute 35 II. 8, c. 19, as toy M
Vaufifhan tells us in his reports, fol. 329. And
the kin«f or convocation, but certainly both of
them with their joint power, may makeonloi
and ordinances, whicli shall bind all the kiog^
subjects, but more especially the clergy, is
may plainly be iuferred from the statute 25 H.
U. c. ID. Ami so are our l>ouks, Ql E. 4,45,
Hro. Abr. ordinary, pi. 1. Moor 765, 783. 3
Cro. 37. Xoy 100. aiid'2 Ventr. 44. And 10
hath been the practice, in the first volume of
the History of ihe Itelbrmation, fbl. 935. and
the .second\olumc, fol. CO, 69, and 70. lut
case cif this nature, I must lu.-g leave of jrooT
lordship to make use of the writinf«s of diTiaci
and other authors, and not strictly confine my-
sell' to our books of common law : for our law
book ft ai-e silent in this case ; and imleed I do
nut find any other authors sjieaking directly io
the point. * I'herefore, 1 must lie forced to look
into the nature of absolution, the power of tbi
clerjuy, the practice of ditines, and other ool*
lateral matters, for some li«>:ht herein ; wbick
inakt's me dread {[vrowin;;; te<Iinus, and becooip
ii)(r very tiresome to your lordship's patience.
And,* my lord, as* to this particular tam%
thes<> canons are in some manner confirmed h|
actorpai-jiaiiieiit : for the statute 1^ Car. 3.t
I'i.soct. the last, which seems to set aside the
canons of IG-iO, doth establish the church 9sil
was in the } rar IciUO *, and then these caiMI
were in ti»roe ami practised. For tlie king wbl
then reioned, at his c<ironation, (tiNs firrttM
there took upon themselves to absolve them,
and did pronounce them to be absolved from
all their sins, without any' repentance, by the
said sir John Freind and'sir William Perkins,
or either of them, for the high treason afore-
said first dc<!lared.
To this indiiimcnt these two defendants
K leaded not i;ni>ty : And the issue being tried
efbre your lordship, the jury find this special
verdict : That C'ook, 8nott, and Collier laid their
hands on sir John Freind, and Cook pro-
nounced the alisohition, and C!oIlier and 8natt
said, Amen : That Collier and these two de-
fendants laid their hands on sir U'illiam Per-
kins, and Collier pronounced the absolution,
and CrOok and Snatt said Amen: xVnd that
Cook and Snatt assisted, and assented to the
said al»solution.
As to the conspiracy, they find the defendants
not guilty ; and as to all the rest of the in-
dictment, they find the defendants gnihy : But
whether, on the whole matter, the defendants,
c»r either of them, be gniity of the matters and
things charged on them in the indictment (be-
sides the conspiracy) or no, the jury pray the
advice of the court. And thereupon it now
comes belbrc your lordship. And
I hope witii submission to your lordship,
as this indictment is, these defendants shall be
dischan2;ed. And to that end I shall crave
leave humbly to lay before your lordship
some considerations on these three points :
First, Whether what is laid in this indict-
ment will amount to an offence ?
Secondly, If it be an ofleiice, 1 shall hum-
bly submit it to ynnr lordship, Whether the
examination of it doth not belong to another
jurisdiction ? And,
Thirdly, If it should be an offence, and pti-
iiishable in this court, yet there can be no
judgment given against them on this indict-
ment.
But before I come to these point<i, 1 must
crave leave to explain what I take to be the
meaning of one expression in the indictment,
and that is, * AliMjue aliqna pcenitentia per eos
* pro alia pn>ditionc pnedicta priiis deelarata.'
'^y pamitiilia^ 1liou<^li it usually amongst the
IranonistN si;; ni lies |)enaocp, and sometimes
repentance, nhsiilution and penance, yet hi this
place I take it for repentance only. And by
the words * pro alta pro<litione prudicta priiis
* dcclarata,' is meant publicly declared for
that particidar offence. For on the evidence
it appeared, there was a general repentance
of all their sins ; and there might have Ucn\ u
private, particular repentauct.'of this ^ery trta.
son to the priests, whilst they were in the
prison, act^ording to the rule of the Ca-
nonists, * Posse in una die confessionem uu-
* din, et in altera itijtiiigi iiu'nitentiain :* As I
find iteiied In the gieu!est casuist a'ul best an-
thisr 1 have met wiih on llii> occasion. *■ \ ale-
< rins Ueuinuldiistle requisitis in coufi*ssione,*
I. 8. n. 11. fol. <!30. Hut when this was ob-
jected at the trial, the king^s counsel answered,
The repentance ought to be as public as the
was al\er making of these canons) did uot o^jj
swear to maintain to the church the lawaof K
Edward, but likewise to preserve to the
t
48S] ^ absolving Sir W, Parkt/ns and Sir J. Frttnd. A. D» 1696- [456
in p^ril or imminent dan^r^ or llje tike, as to
be f isiled with sickness; whicU likewise an-
swers the canonists ikscription or denomi nation
of thifl sort of absolution ; todistinguisli it frorn
t'jiiirchcj €ommilte<l to their charge^ aU
ranonicAl pri% iltf^es, I [Cushworth's Collection,
fcl. 901, And the power of secrecy seems to
me a nrif ileqfe ; and thetc canons are now re-
ceived and oWrvetl as laws oraonvit the clergy.
And, my Ion], neither the indictment nor eri-
dill deny I bat there was a private repen^
Now * that a private confession and re-
pentance had been sofficient, appears from the
fuk of* the canonintSf * Non tenetur pcenitens
audient« confiteri, quia conte^io cum
fiit io persona Dei omnia exploralis-
"'"^'^-ntw, excliulit omoem teslem,*
a. n, 78, fol 182. * DcSacra-
* -ione,* Nay, the confession to
only is held sufficient : * Ex-
[►rcces nostras, ct eaniitentiam
tilii. < , utqnosconflcietitiiereatus
iCG«)v luu* misrrationk abgolrat,'
ht, a& (# iHt Uowii in the * Ordo Romanus de
^U^cils iJivinis/ in the trnth tome of the Bi-
1. 30. und is vprUatira reo-
ii our liturgy, in the com-
forin of jii-ayer appointed
li of January, and in that
.1 gctK'rul fa»L And J shall
ne to otTer to your lordship^s considertition
I reasons why such a private confession
to God Almif^^hty/ or to \\\a minister hereon
Oftb^ tB fruf^cjent for alisoliititin. One is
iu from the narnre of I he thing ilself. No
tw oiiliged by law to do any art to any
■ peryon, from whom he can receive no be-
itfit by so ilointr. And the people cannot ah-
«ibe, it is only the priest can ilo it } oml there-
t<3fe 4o him alune must he made the confession
ind repentnnee. Atid so is I/mwood, the last
impression, UA 3G7. on the uoidtf, * Duhiio
. frnctu,' says he, * Fructiw i^itiu' sivc
pi!i9( I i (entile est absulniio u pe^-calrs,
quis non conseqiirtur ab eo rjui nou est
jydieJf» uec habet iKiteslfttem com hiu^andi
ftfrendi-* And tliesame auttior, spfaking
ifession, fol. 327. * VerboConfes-
i^e words, * Confessio iripliriter
|4i>H> anmi£ ioteriu^ coram Deo, aut in
••ntiiP e^tenus cumm Uei vicario, ant
rr4ii i tjce.' And I hen
lie iddft, iia cornm s;iict:r-
'\ pert WIN mn utiLiui.u ii>. And iliei**? is
•4 \ vM\ Hnd, the least hint of makliH^
^ eonte<<iion or repentance to ilie people,
but only to the {iriest, and that may l»e in
iirli.iii Hut in this caj»e tliiie wn^ likewise
repenl»nce declared ; u liich iht-
'^\\t w»'lt take for a repentance of
I ^vell as tor any other. That rC'
1 wn ** ^e Tir ral : fo r tra ito rs be i n %
'U\f>)o»imi, and ni> par-
ked, Iht^e geiiljemen
111 »hr tonu Itiere set down
the Sick, which may very
s' been dc?iignfd tW a! I that
; li ; and so our j^Tcatest di-
., ■; ... The learned Dr. Du[K)rt,
Greek version of our liiury^y, renders
I itiat fjgnifics aV wcU to be
the common and sacra men taJ absolution ^ they
call ii*absolutio in articul* mortis,* without
distinguishing between a natural and Tioleiil
death, or between tlie innocent and malefactors.
And if our law bad designed to have excluded
malefactors fnmi the benefit of this office, it
would h»ve iiseil the same caution ns it dotb
against others in the office for burial of the
dead, where it says, it shall not be used to those
that die un baptized, excommunicated, or are
fdo de If. And I do not find malefactors ill at
suffer by the band of justice excluded that
office, and I think It is oHen performed for
them ; why then must this of Visitation of the
Sick be denietl them ? There is no other oflice
or form appointed for these sort of persons.
And then, where there is no law there is no
transgression ; they arc left to their own me-
thod and form, and therefore may use that set
down in the common-prayer as well as atiy
other. And here the priests askeil sir John
Freind and sir William Perkins, if they re-
pented Iriily of all tluir sins, and were in cha-
rity w itli all the world ? The penitents answer-
ing in the affirmative, the aOMdvcrs ad rising
fori^'iveness, did^ at the request of the penitenU,
in the form set down in the liturgy, pronounce
the absnlulion, neither of the criminals signi-
fying that be felt his conscience troubled with
any weighty matter- Aud» with submission to
your lords liip, such signification ought to be
pi'evious to the motion for a special coufessioD,
lor the words are, *^ If he feel his conscience
^ troubled j' which I think is tully explained
by the second homily of repentance, whicli
conilemns auricular contession, and then adils,
' J do not say but tliut, if any do find them-
* sehes troubled in conscience, they may re-
* pair to ihL'ir learned curate or pastor, or to
* some other godly, learned man, and tiheiv
* ihdr Irmible and doubt of their consciences to
*' I hem, that ihey may receive at their hands
^ the comfortable salve of God's word/ But it
no ^>he^e enjoins such confession and repent-
ance, lunch lcs« dolh it coiyinand the priest to
exact them i'rom the |>cniteuL There is no
oriier lor the priest to examine whethtn hedotU
fifid his conscience troiibleil, if the penitent
fhrh not iiitinale it lo the priest. There is no
tfireclioti lor the priest to ask him any question
ulmiit it. And \ al. Keg, I. % c, 2, n, 13. out
nf S(»tnii, gives us this definition or description
uf ihc office imd duty of a coutessor in these
words, * Officium quidem confessarii de sc non
* est inlcrrugare pocnilentem, sed audire confi-
* tentem ;" And going on, he gives this reaM>n,
* Cum in foro p»jEnitentiati non proccdatur sicut
* in criminah per vini coactivam ad ejctorquen-
* dam h reo confessioncm, sed ptr spontaneom
* voluQlalem coulit< ntis.' 1 acknowledge, that
in the church of Home, to make ahsoluiion it
complete sacrament^ a special confession is re*
quired ; ab is dirtaiid by ottr cbiucb, when tko
I
I
I
4Sny 8 WILLIAM IIL Proceedings against Three Nonjunng Clergymen^ L^^ ]
]>eD)ifnt signifies that be feels aburtli^o on his munication * Pn^udicium futuri secitIL* AmIi
conscience: But Deiiher to the^, nor in any the learned |^r«late Uglitr. in hi<5 liuswcf
Other cases, wherein special confession U re-
^nired, is it any where ordered to be publit:. It
ig iufficient ihtit it is made to the priest alone ;
anil tlitj common practice in these and all other
easei is to have it private : All other persons
are exdiaded the sick man's chamber. But
•iipposing, my lord, that the meaning of the
Rubiic Miould be taken to be, that the priest
should move hioi to make such a special con-
*'c«»!(ion» this is only directory ; it U not com •
puls;itory» any rnoVc than the ,irectHlinif para-
gfjiph^, where the prlcai is to a<ltnoni!sh the sick
person to make his will, ami declare bis debts,
«ud| if he be cfabilily, to irirc charitably to the
poor. And it would lie diHioult to maintain an
indictment on any of these paragraphs against
a prie»t, for absolving a siek man without ad-
nioniihing bim to make bis will, declare his
debts, or be liberal to the poor, who perhaps
atarved for want of such relief. Certainly in
those cases the Rubric would be looked on to
be only directory: And why not so in thisf
The like exposition bath been made on other
acts of parliament. The statute 21 Jar. 1, c.
4, against vexatious infonutrs, enacts, That no
informal ion Ksbalt be reccircd, filed, or entered
of record, before thy inforuier liutb made ontb
I bat the ojfence was coi ami tied within the
eouuty where it was laid, and, as he believes,
within « year bdote exliibiling the informa-
tion; and this oath to Ije enti?red of record.
Yet i believe, it cannot be shewn that any
Much oath hath at any time been made, noV
inf<»rmer nor officer indicted for preferring,
tiliug, entering, or reed ring any informa-
tion vr it bout buch oath ; for that {Statute liatb
(as to that part) been ali^ays beld to be direc-
tory, thai the judge or officer might require it»
if tWy thong III fit; but they ai-e not thereby
obligai in any case to ejtact it from the in-
former, an^ othertri&e than as tbebr own dis-
cretions guide them, 1 Cro, 316. But taking
the clause in the case now before your lord-
ship to be compulnalory, yet it is not to be uni-
versally observed to alf ptnitents ; it is oulv in
some cases, w here the |>erson8 are not qiiairfied
without such special confession, and the priest
is to consider and determine of the ijualifien-
iions : For absolution is purely spiritual, and so
hiX to the priest, that he is the only juilge
thereof. And if it might not be tbou^fbt iin-
propgr, I should crave leave briefly to mention
lheo|unionEof8ome of the fathersof the church
on tliiK occasion.
8t. Chrysostora says. The Father judges no
man, but batli comnittted all judgment to the
Son ; and the Son, till bis second coming, hath
lefl all judgment to his minititers. And8l.
Jerom, sneaking of the priestj;, hath these
words, * Qui claves regoi roclorum babentes
quodatnroodo ante diem judicii judicant/ And
lit. Gregory ibe ^reat says of them, * Princi ^
patum snpcrni judicii sortiuntur, nt vice Dei
quibusdaro {)eccata retineant, et qiiihustlatii re^
^ lexcom*
Mrtbine the Jesuit, saith, *^ M <
most williogly, that the princij
jiriesit's miois^T' is excrcijsed in a
giveness of dins." And it fWi'
what ( before cilt^d out <»f Liuv •
wise by another expression ia tl
foL 336, on the words Con ■ ^
wht're ho says, * Episcopi
luarnrn ijiiani rorei'irtm. • '
eit judex nisi
word 8ucerdotni; '
pulaii sunt ad audienda^ c> :' A
the next |iaragraph be i' -^^^ m
*■ Verbuin Ilei <limiltit percaia, iiuv^cidos a
est ju<lt*x\' And, m,v lord, what I would
fmm thu-sc diviii4-s and I. in wood, iSi that tb«
priest being the jmlge of ibt* »ilate of the 6oa]
of the penitent, he iiio^t at bis ppril, as he will
answer it to God Almighty, tnke care of tba,
confession and alisolulioii ; and if he errs, *
may perha|>s l>c ptjoi^bcd for it in atvoibcf
world, but not in thi*. We u^miIU- *'^u« hj if
a hard case to punisii a man f<y
judgn)cot, for not being so wi»e .«
be, or so underfntanding as another.
is in any case, at c<»ninion law, tn bt
for au erroneous judgment, eitlier by aciHrti oc
indictment, 9 lu, 4, 3, a. 1*1. 10, 1 I-en 3'2
[hit. 120. And i»ur divines tell us, that Gi>4
Almighty will judge us by our wills, not bj^
our understandings. And tlM»reft>re, i( ibi
gentlemen were mistaken in u hat they did,
being only an error of their judgments, thcmofh
it may be deemed an imprudent action, ^tt I
hope it will not be adjudged criminal,
m V lord, there may be this larther r«aaoii
why it should be left to the priest lo jml^
the repentance, and give the absolutioti i?
he hees iK-casion. Suppose, my lord, an ii
cent man should be condemned for ir«a»
felony, as it happened in the case of iha ni
condemned and e;Kecuted for the murder of
niece, mentioned in my lord Coke's third In
stitiites, '23'2. And the like case happened ^
Gloucestershire between tliirty and forty y<
since, when Joan Perry and ber two aoi
ail acrount of them following tbbi case
tain Thomas Green, Jbr Piracy and
A. D. na5, in ibis Collection] wti^ecxi
for the murder of one Harrison ; and
tbi-y were executed, the person sup^
murdered came into the country, and i*^
provcil the innocency of those persons that
condemned and ej:ecuted tor that fancied mur*
der. Now, supposing, in such a case, the ^
son to be executed obstinately and resoluWyi
denies the fact, shall the priest refits v
solution? And because the innocent ^
not accuse himself of what he was not m» jmn
as in tbou*;ht guilty, must he tlierefore die tliij
second death for liiy other wins* for w bich li^
docs repent P For they are still retained hfi
the priest, who rcfuntfn to give htm abeMilutioai
Because such persons cannot condemn tbi
selves for what their comcietioca do tt>4
1
Mn
ff aisoMng Sir W* Partcym and Sir J. Freind» A. D. 1696.
[430
there be DO for^venes9, no abeola*
em P Will not charity allow they
ved, and consequently entitlefl to ab-
Kay, will not charity extend to
raffer in an ill cauae, throngfa a fault
ndentanding ? And I hope that the
oar jndj^Dientsi, as well as the weak-
' meiuoriet, ntay lie pardoned amongst
: ans; and therefore such persons
Iways be denied the benefit of abso-
t is no where denied to traitors ; nay,
lists say, * In articulo mortis, omnes
qnoslibet pcenitentes a quibusris nec-
nsuris absolvere possunt,' Val. Ilc^.
, fol. 9. And he there cites a council
re it WAS so determined. Nor is there
:ulaT form or method prescribed for
•ntauce or absolution ; therefore, me-
general repentance may deserve a
bsolution; and perhaps, in some of
M, the priest hau been to blame, if he
d absolution.
iw, with your lordship's patience, I
into the practice of divines in such-
; though It cannot be expected that I
iusr many precedents to warrant this,
: is seldom that absolution is given at
of execution; the ordinary, or some
ine performing that office, usually
t iu prlrate, when they have free ac-
e prisoner : And if it were not so done
as because, afler these divines were
to be with the criminals, and to pre-
fi fur another worid, and had been
n, and, as we say, received their con-
id repentance for the crimes for which
e condemned, and perhaps had there-
en tliem absolution ; yet afler this,
DP three days immediately preceding
atina, they were kept from them, and
itttd to come to them till they were in
it the place of execution : And it may
ed, that the absolution that was then
em, was fur the sins which they had
id sincx they saw them last. There-
sis the king's counsel can shew me a
I such circumstances, they cannot ex-
n me a direct precedent to jastify our
v^. But I shall crave leave to men-
IT that I think will bear some propor-
m case now before your lordsnip. I
^11 with that of John Twyn, who was
iTicted. and attainted at the Old llailey,
I of February, 1663, the narrative of
as then printed by authority. He was
rl for printing and publishing a trca-
label ; and my lord chief iustice Hyde,
rhom ttic trial was, saith, [Vol. 6, p.
ibis ColleGtion] ** I sliall not spend my
discourse to you to prepare you for
1 see a grave |ierson, whose ofhcc it is,
ave it u» hiui. Do not think of any
re: Make your peace with God, wliicli
e dont br confeninn, and by the disco-
' llMMe that are guilty of tlie same crime
■a. God have mercy npon yon ; and if
>^M will have mercy upon vou." Af-
terwards, and before he came to be executed,
the ordinary pressed him to confession of those
others concerned with him, which he refused ;
and yet the ordinary offered to administer the
Sacrament to him. From whence I would
infer, that it is the office of the Ordinary to
prepare condemned criminals for another world,
and consequently he must be the judge when
they are prepared. And next, though, the
Chief Justice vras of opinion, that God Al-
mighty would not pardon him but on the con-
fession of his own fault, and the discovery of
his accomplices, yet the Ordinary tendered bim
the Sacrament, which comprehends the abso-
lution, when he obstinately refuse<l to make
any such discovery ; [See Twyn's speech and
befiaviour in vol. 6, p. 536, of this Collection]
and yet no indictment against him for it. My
lord Strafford, when he was going to be be-
headed, being denied to speak with archbishop
Laud ; as he passed by bis grace's lodgings,
seeing the archbishop at his window, the earl
of Strafford bowing himself to ihe ground, said,
* My lord, your prayers and your blessing.*
The Archbishop lifted up his hand, and bestow-
ed both. There was not time or opportunity
for his grace to pronounce the absolution at
large, nor to lay his hands on the head of the
penitent, as these defendants did, but he came
as near it as he could ; he lifted up his hands,
and bestowed both his prayers and benedictiob,
and that without any particular confession or
repentance. And though his mce was after-
wards proceeded against, and, as they then
called it, tried for Hisrli Treason, and all the dirt
thrown on him that IVynne and several others
could rake up against him, and his whole life
searched into, and every particuUr action nar^
rowly traced, and even nis reputation, when be
was a scholar at the university, produced as
evidence against him ; yet this blessing, this
absolution was never so much as mentioned,
though they had often opportunity so to do,
when it was urged (as frequently it was) that his
grace and the earl of Strafford were very inti-
mate frieuds and acquaintance, and went hand
iu hand to destroy the goremment both in
church and state: And yet this action was
publicly taken notice of, as we find by the his-
torians of thoje times. Rush worth, m the earl
of Strafford's Trial, fol. 782. Franklin a
Annals, 901.*
Now, my lord, blessing and absolution in
such circumstances amount to the same. No
man blesses the impenitent. The form that
the arcliliishop then used is not set down, nor
is it, with submission to your lordship, any
ways material. There are several forms of
absolution, which in sense and virtue are the
same, as archbishop Sparrow has it in his Ita-
tioiiale on the Common-Prayer; where he
shews us, that there are three several I'orms of
absolution in the liturgy ; as first, in the morn-
ing and evening prayer, * He pardoneth and
* Sec, too, vol, 3, p. 15^1; of this Collec-
tion.
I
431] 8 WILLIAM 11 U Promdingi agnuist Three S'onjurlng Ofw^jv^en, flW
absolvcrtb,* Sec. The second is usei) in I lie
Visitalitin of the sick, * By his authwriiy chim-
in tiled lo me, 1 aUalve thee,* 6cc. Tiie thin)
is ttt the sacrament, * Alinit^hty God, fkc. hove
mercy up^ii you, ^c, [lardon and Ibrgtre you,
AcC* The like foriB is appointed to be iifieil iti
case of iromioeot dauber at sea, and stiled an
%liflolution. Aod, saitb that reverend and
leained prelate, " AH tliese several forms 'm
*€*use and virtue lire the same : for it is all one
OS lo the i-L'mission of sins in the penitent, whe-
ther the priest alwolve him afttr this form, Al-
mighty irod, who hath given me and all priests
powier to pronounce pardon to the penitent ;
«e pardons you — or thus, Ity virtue of a com-
tiiisston <^nted to me frtjm Uod, 1 absolve you
— or lastly, God pardon you.'*
I must now, my lorn, in my way, crave
leave to observe, thai criminals, be Vheir of-
limccs never so heinous, thoits^h they do not
coaftss them, or shew any repentance for
tJiem, yet they are not kept from the puWic
service of the church ; nor are they denied or
refused to lie admitted to the blesR*/<t Sacra-
ment*, where Ihey hav« the bcnetit of this
third absolution, aud that in puldic. What
reason then con there be to ilcny thrni this ab-
solution, for the giviog which these i*-eiidem€o
stand now indicted, Which hath not, I bdievc,
been at any lime denied to any malefactors,
either in this or any other part of the whole
Christian world? Ihe empej-or of Germany,
ID his manifesto a[2:ainst those persons tliat
killed his officers and ministers at Prague, as a
great agojravation of their offence Kays, they
titd it without pvinyf them a moment of time
to repent, or make confession, or receive the
Sacrament, which is never denied to the worst
offenders, 1 Ruf»h worth, 7, — Without giving
them a moment of time to repent, or make
conlesBiou, or receive the Sacrament — It is in
the disjunctive, my lord ; and thereby Conles-
fiioQ and Hep4>ntauce caimot be meant of that
particular fact for which thej were then put to
* But in the Rubric, prescribing the order
of the admiuifetrntion of the lord's Supjier, w
Holy Com m union ; Ihe i]n>t directions are at
follows 1
«* So many as inteisd to be partaken of the
Holy Communion, sbtill dignity their names to
the curate at least somii time the day before.
** And if any of those he an open and noto-
rious evil liver, or have done any wrong to his
Del^hbours by wonl or deed, no that the congfre*
fauoo be thereby offended ; the curate having"
nowledg-e thereof, shall call htm and adver-
tise him, that in any wise he presume not to
come to the Lord's table, until he hath oneuly
declared himself to have truly repented and
aiDended his former nau^^bty life, that the
cong'rcgatiou may thereby be satisfied, which
before were offended ; aofl that he hath recom-
pensed the parties to Mhoni he hath done
wroii;;^, or at least declare himself to lie in t^ull
purpsc fO to do, as sotiu as ho convetiicDtly
death, for that was the set
then roaster, and the muii: ;. „..
thors of their deaths, • Barboroa^, '
^ inhuman munlefers,* II tit I ^h. '
to give 3'our lonlstiiii ano:
iliere hath been a public ah
condemned, and that even ut t!i
cutinn, without any tpectal re|i<
crime for which lie wiw about to siiffcr,
that was in the case of' sir Thoma.% Armsiroi|)|^|
who, by jud|fment of tins court upon
lawry tor hit^h-ti^eason, tor eonspinng^
the kin^js life and sjoverument, was exi
at Tyburn in June 1(384. In the court
sisted on his inoocency, and so he dli
Speech which he I the wise lell with the
at the pbce of execution ; yet,notwithst
that, the revfreud divine that then ftssiftfd
prepai-e him tor another world, did iu eflV«t t]
same w'rth these gentlemen that are now de>
fcndimis (which I humbly submit to yoitrlord
ibipV ition): for, alter kIcu
!nen<i ^r, he useth this Ik
* The ^, (. «• ni Mur Lord Jesus I!
love of God the Father, and !li
the Moly Ghost, be w*ith ns, aud ... .. y...
lar manner with this thy servant, now in t\w
njinute of ilenth, aud day of judgement/ Ai»4
tlien speak in <i^ to sir Thomas Arm&1rnii€j, saySf
* Now, Kir, commend yourRelf to God hy yotir
devotions, make yourself ready, and ifiea Irt.
that be the last thing you do.* Sir Hiomas
Armstrong; says, ^ ^lir, I hope in Ood my fiii»
are pardonerl/and 1 do pray for it henrtitv. I
forgivt ' Mall their offences !i '
comii: St me.' Thfiniheil"
* 1 pray VHK4 ssicw mercy to you
pDPSs chanty to them ;' and then imtncdi
followed the execution. I have dwel
long-er^ my loivl, on this particular, beca^tse it
uiuiit neeits bo of viry gnat nuthcirity, the n^*
verend divine that then assisted bein|^ Dr.
Tennison, now archbishop of Canterbury. [See
voh 10, p, 105, of this Collection. 1 And the
circumstances of that case are much the same
with ours : in the indictment the same offence
was laJil as ng'ainst sir Jcihn Friend nnd «ar
William Perkins, he suftered at the
place, and that if verend divine was tiki
with him iu the cart There was also
ptr delivereil by the criminal to the sheriff,
dpclarinjjf his innoccncy ; yet ahsuhition waa
puhltcly firlven at the time and place of execu-
tion. Kot indeed in the same words as the«!€
defendants usetl, but in those that are as effec-
tual. I think it is apparent, that no particiihir-
form of words is requisite to an atisidi '
W bether we think the power ot the cf
authoritative, or only declarative^ whai
is an eicecution of that power that is gi
our Saviour in St John, and denotes tlie pi
absolvini^, or the priest^s declarincj ths
doth abiiolve them, or the prie!>t's recom
ingf tljem \o God for mercy or a pardi
their sins, that, with submisston to
lordship, is as much an absolntion, as
the priest doth iu
4SS] ^r aisohnng Sir W. Parkym and Sir J. Freind. A. D. 1696.
tbem. So it is in our morning" ond evening'
senrice, Mid in tbe cniumaniem, and Uie service
at 8cm, as I have beiore mentioned ; and yet
tbe rubrick stiles them absolutions. The whole
cbristiau cbarcb, for the first ten ajfes, used
that form of recommending^, and no other ; and
tbe Greek church doth still retain the same.
St Cyprian De Lnpsis, fol. 136, the Oxford
cditioD, on the words, ' Fro vobis Deum rogare
* possimus,* the learned Oxford aunotators say
thus — And i may well stile them the leanied
aanoiatore, since that great master and iufl;fe of
all lemming, the present bishop of Worcester
(Dr. Sullingdeet), in his Vindication of the Tri-
nity, fol. 165, 164, stiles them so. Their anno-
tations are in these wonis, *• Quantumvis nunc
Memporis formula judiciaria et potestativa
* (I'l^o te absolve quasi tradita ik Christo |>er
* Apoetolos teratnr, ex advert) compertissimum
* babetur per decern priora secula in usu mi-
tnlme receptam, imo nee adhuc in Ecclesia
*Orientali invaluisse.' And that absolutions,
ordinations, and consecrations were in a depre-
catory fonu, plainly appears from Morinus, I.
8. De adiuinistratione pasniteutio;, c. \% sect.
7, fol. 397, * Ipse Domioe rem:tte, ditnitte,
* condone peccata hujus', N. &c. And this, he
nys, was the common and vulgar absolution in
the Greek church, tto Theodorus, who wrote
his Penitentiab totvards the latter end of the
axth century, (it was published per Jacobum
Fettit, in quarto, a. d. 1677, at Paris) in the
first book, and the Arst chapter, page 36, is this
absolution, < Deus omnipotens sit adjutor et
* protector tuus, et prcestet indulgentiam dc
* peccatia tuis ;' and many others of the like
nature are spartiw through both the volumes.
In the roman pontifical there is this absolution,
* Misereatur vestriim, oniniimtens Dens, et
* diniissis peccatis vestris pcrducat vos ad vitam
* cternam.' And likewise in the Ordo Roma-
Bos 1 before cited, fol. 61, is this, which is
itileil * Abiiolutio singularis : Frater N. absolu-
^tkmem et reinissioncin peccatoruni tiionim,
' per invocatiouera sacrati nomini^ Dei, et per
'ministerium nostrum, pcrcipere nicrearishic
* et in aetefnum.* And m the same page are
leveral other absolutions plural and singular,
penned after the same manner, in such a de-
precatory fonn, and all stiled alMolutions. And
IB nooe of these absolutions do 1 see any enu-
meration of particular olrenceti, nor have I
found in any of these penitentials, that malethc-
ton are exchided from this absolution. Mr.
Newland, who was about two or three years
nice condemned and executed for the murder
of Mr. Thomas, did positively deny that he was
guilty of that fact, or of aiding, assisting, or
abetting thereunto. Yet Mr. .Stevens not only
gave bim the sacrament, and that three timcH,
with other company ; but likeu isc eave him
absolution, as Mr. Htevens himself hatn since in
print publislietl to the worhl. And what is
lawful and justifiable at Newgate before three
or four |»erson8, cannot become a crime at Ty-
burn, though it be done in the presence of 600
people ; for the place or uumbior of people can-
VOL. XIIJ.
[43*
not alter the nature of the fact, and make an
. innocent action an horrid crime. 1 am cre-
dibly iniurmed, that in the case of Anderton
the printer, who was executed for high treason
about four or five years since,* there was the
same form of prayer used for him by the divine
that then assisted, and that at this very place of
execution. In the case of Mr. Ashton, who
was likewise executed for high-treason,*]*
though he expressetl no sorrow for his crime,
and left a Paper behind him justifying the fact
for which lie died, yet the samefurui of prayei\
the very same absolution, and at the same place
of execution, with all the circumstances of the
present case, were used and performed for him ;
and instead of any reprimand for so doiu<y, the
shcrifTof ^liddlesex said thus to the absolvers,
as 1 had it from one that was tlien present,
and set it down in writing ; * Gentlemen, I
thank you for performing the last oiiices so
decently.' And, my lord, m^' cli-nts do insist
on it, that on these precedents and this encou-
ragement, they werti induccil to act as they did
at the execution of sir John Freind and sir
William Perkins. I have, my lord, looked into
i the treatises of some divines upon this occasion ;
and though 1 find a minrhty stir about auricular
coufessioi), whether tLic church doth require
that or no, yet 1 cannot jierr^ive that it is by
any insisted on, that there must be in any case
a public confession or reitentance, no, nnt even
in those cases where public penance is enjoined,
j unless in sotnc few, where the ecclesiastical
I court hath made it part of the penance. Mr.
i IVynne, in his Canterbury's Doom, fol. 192, 3.
tells us, that one Mr. Adams preached at St.
: Mary's church in Canibriiiife, a. d. 1637, and
I maintuined special cnnfes:>ion to tiie priest to
: be necessary ; tor wl:ich being sininnoned be-
. fore (he vice-chancellor, lie and several other
i doctors ordered .^!r. Adams to make a recanta-
tion of that doctrine, and declare it Mas onl}'
rei[uisite in those cases where people couhl not
quiet their own conL;cicnces : and likewise to
I declare, that it is against true christian liberty,
I that a man should be bound to the enumerat-
j ing of his sins, as hath been used heretofore in
I the times of ignorance and popery. There
! were indeed some doctors that did oppose this
I recantation, and justifie«l Mr. Adams, insisting^
I it was needful to make such confession to the
priest ; but none pretended it was in any case
, requisite to be made to the peoidc. But, as I
i said before, the vice-chancellor, and the aiajor
> part of the doctors, ordere<I tiie aforesaid recan-
; tation, and well they iniirht ; fur it is verbatim
' taken out of the second Homily <»f Repentance,
; which book of Homilies was composed by many
' eminent prelates of our church, nndthereading'
of it enjoined by the rubrick, wiiich is part of
the act of uniformity. And that homily doth
further say, thatit'is most evident and plain
* In the year 1093' See the Case in this
' Collection, Vol. 12| p. 12U).
-f In the year 1691. See the Case in this
Collection, Vol. Isj, p. 646.
435} 8 WILLIAM IIL ProceeeOngs agMUi Three Nonjuritig Clergymeth [49S
that auricular confetsioD hath not its warraot
from God*8 word ; and it cites St. Austin,
who saySy * What have I to do with men, as
* thon^ they were able to heal my diseases ?'
and if a penitent be not oonipelled by the laws of
God or holy church to make a particular con-
fession of his sins to the priest, who gives that
absolution, much less is he any ways obliged to
satisfy the curiosity of the people by enume-
rating of his offences, or publicly declaring a
repentance for his sins. Nor do they any where
distinguish the case of condemned criminals
from others. But the rules concerning it are
general, * £t generalitcr dictnm generaliter
* intelli^dum est.' Whaterer I jfind s|ioken
concermng alwolution is ezpreaied indefinitel;^^
which falls under another maxim, * Indefini-
* turn «quipollet universali.' And, my lord,
one reason wh}r I take it to be lawful to pro-
nounce absolution to condemned malefactors,
is, that belheir crimes never so great, the sword
of justice <lotli not strike deeper tlian the grave,
and there is still room for a * Dcus misereatur
* animiE ejus,* a Ixird have mercy on his soul.
Thus I have, with all humility, submitted to
your lordships' consideration what I have to
say, why tlie .fact, of which these gentlemen
stand accused, should in itself be no offence.
Neither can it be made a crime, with submission
to your lordshio, by any ill intention that can
he suggested to uie adherent to it : For the ac-
tions of men shew their hearts ; and if their
works are not evil, you cannot from them, * in
* fbro humano,' prove their minds corrupt.
Omitting tbe reason given by my lord chief
justice >iorth, on the reversal of the Judgment
in the case of Bamnnliston and Soame.* 1
shall trouble your lordship but with two cases,
and tbe reasous of them, to prove the truth of
Ibis assertion. The one is KUiot's case, iu the
last impression of Croke's Charles, fbl. 608,
u'herc my lord chier justice Vaughan say^,
It is clcai- and undoubted law, that whatsoever
is in itself la\i ful cannot have an unlawful in-
tent annexed lo it ; for then the most inno-
cent act of a man's life would be liable to se-
vere censures. And he instances in this, that
a man might then be iiMlicted for high treason,
for drinking water w ith a design lo lessen and
destroy the customs and revenue, thereby in-
tending to dethrone the king. The other ca^ie
that I would mention is in Dyei*, f. S96, pi.
19, in these words: ** A subject of this realm,
bc^Hg a merchant of London, departed out of this
realm without licence of the queen, only to the in -
tent that he might live there free from the laws
of this realm, and out of his due obedience to
the queen, and not upon any account of mer-
chandizing ; Whether such a departure were
any offence or contempt to the queen, or not?
And by the opinions of almost all the justict s,
such a de|)arture, before an express prohibition
or restraint by proclamation, or writ of * Ne
• See the Lord Chief Justice North's Ar-
gument on that occasion in this Collection,
Vol. 6, p. 1098.
* exeat regnnm' awarded by^the kin^ or prinoe,
is not any offence or contempt ; for it is a thing
indifferent to depart the realm, and the pur-
pose and cause, which is secret in the heart,
i» not examinable." That is the reneon mm
in the book : And Jenkins, a man mim for
prerogative, in his second century, cap. 70,
fbl. 88, agrees this case to he law ; and nyS|
That the common law doth not allow an uh
tent to be issuable or triable, and gives this
reason for it, << Cor hominis est inscmtabile.*
Now, my lord, those tliat will not allow abso-
lution to be a very good act, must grant that
it is at least indiflerent And then the caosa^
purpose, end or intent of it being secret in the
neart, is not examinable, and therefore camiot
be justly said to be done for raising a rebdlisa,
or causmg a disturbance in the kingdom. And
I do not know that in any case a man is |ni«
nishable for an ill intent, except in one species
of treason, the compassing the king's watfa ;
and in that case the intention must he proved
by some overt act directly tending to the ftcft
designed.
2. But I come now to the second poiol.
That if this shall he deemed an offence, yd it
is not enquirable nor punishable in this covt
I must humbly submit it to your lordship^
jud^finent, whether the power of abeolutiH,
which is given to the apostles and their eae-
cessors by the author and establisher of il
lawful power, both ecclesiastical and ciril, k
these words, in the 90th chapter of St. Jofai,
T. S3, * WhoBe*8oever sins ye remit, th^ sia
* remitted ; and whose-soever sins ye refiUDj
* they are retained,' be not an authority ht
above all sublunary jurisdictions ; and theie
gentlemen, the successors of the apostlei, sot
to he called to an account for what they ilid is
the execution ol' that authority, but by Uia
alone who delegated that power to them. Bst
supposing it should be examinable here oo
earth, with submission to your lordship, it ii
only in that court, by those persons, or tkit
sort of men, who conveyed to these gentle^
men that power given by our Saviour. And
this I shall endeavour to prove, First, firott
the nature of the thing itself. Their OOM-
mission for it is their ordination, which lay-
men cannot give. Nor is it to he tried by tM
common law ; for profession in religion, er
irifra $acrot ordines^ is only triable by the or-
dinary, Co. Lit. 132, h. S Inst. 492.
That very learned prelate, the present biebw
of Worcester, in his charge to his clergy, fA*
43. tells us out of Cajetan, « Officium cwia
* animarum est pnecipuum ac spirituslirtiinl
* Dei donum.' And the bishop is subeliliirf
by our Saviour to give the ordination, whidb
he doth in these words, * ReceiTe the IMf
^ Ghost now committed unto thee by the Mi*
*■ poifition of our hands. Whose sins tboa M
* forgive, they are tbrgivcn ; and whose ^
' thou dost retain, they are retained.' Nm5
roethinks, a man must naturally infer tai
hence, that since this authority is derired 9n^
our SaTiour by the bishops ; if any poMM
ig Sir W* ParJ^^m
|«in tmrth can rmt and Tef(»rtn the errors or
I in the execution of this puw«r, it must
the %ho9e who Are intrusted to gii^e the ordina-
liiott : Am\ »( (hiu£^ of this nature th<?ir cuuris
[Juiire usuaJl^v had the conusance. Nay, the
T |inFit^g€a of the clerg-y in old titn«s w^nl much
iturtiier; tor our pious and devout ancestoi-s,
J the directions of ihe son of Sirach,
■ii^tku^ r, 29, 31» * Fear the I^rd and
rrenoe hts priesti;,* thoug^ht they could
not pay atifTicknt respect anil honour to the
dOTiryt m-l-*^- *^'^^r eifempted them from all
tempora) u. 80 that even 10 tern-
poral ufTi ^ ! ihostfof ahno«tthe highest
uatn »-, and felony of course, and even
insu' Mhc ordinary would demand the
priftooer tor hiii clerk, he was imtnediately
Ulcen from the lempornl courts and suhjected
to the ordinary s jurisdiction, Stanford's Pleas
^.iif the Cruvvn, ]?3, and 3d lustitut, 1 U. And
m his Mirror of Justice, c. 3, sect. 4,
That if, in a temporal court, a clerk
I of any C4»e crimLual or mortal « pleads
that lie is a clerk^ the judo^e had do lartber
«vn««»n<v» of the cause ; for the church i« so
ed, that no lay judge can have juri^-
'•vera clerk. And the abridgment of
ikm 600k of Assizes, tit. Coronsp, foL 74, say3>
tbftt if a clerk will not pray the benetit of lits
dergy, yet if the Judge knows him to be so^
le will not give judgment of death agfainst
tiin, as against a layman. Aod these priTi-
\mm would have remained to this day, if acts
arparlmment had not altered them. And if
the cleri^y were exemjited from the temporal
inriadietion for o (fences of so high nature^ if
' eftrg-iimrnt • a m»jori ad minu^* holds good^
! iiiti3*i certainly have l>eea exempted from
• puniaihed in temporal courlafor all their
r crimes; aod must still be so, where no
lite Uw interpoaeS) and that will lie oa the
r aide to shew.
1 M fftr of late years have the clerg-y been
111 eiMl eiteeined to be exeiojit frtjm the
' power, that on the treaty of the Spanish
b, it was agreed, that the 1 niaota, who was
t designed to be our queen^ should have her
opish cler^f aiid a superior over them. Anil
i 14th article ruosthu;;, ^* that if any secular
' shall apprehend nny ecclesiastical person
\y oOeuce, heshull t or th with cause him to
inhered to the atbi esaid superior ecclesi*
_ r ho shall proceed au^ainst him aeiordiiig
' tile canon law J' Thei^e aitictes were then
1 10 by the l;u)jr» prince, and privy council ;
herdore we must believe it to be done on
pood advice. Tim is taken notice of by
ah worth, in his fli-»t volume, fol. 87,
Oligfo how fur and in what casen sjuriiual
I persons formerly out of the reach of the
\r power, may ;Hlmitot some debate ; yet
r if more iAfu\i than that spiritual causea
t« <*'i\ by the civil power.
;m> r^'bufispirituahbuscognos-
n debet/ &4>8 Fkta, L (>. c. 37. f. 459.
There it (ta the iiicumparably lemrned Bii^hop
^Woroeiltr bu it, in his charge to his clergy,
A. D. 169G.
Itss
fol. 36), a common law ecclesiastical, which*
although in many things it may be the same
with the canon law that is read in books, yet
hath it not its force from any papal or lugatuie
con^titotions, but from the acceptance and
practice of it in our churches. And such a law,
my lord, is coeval with the very government
itself. The learned Selden, in his mites on thii
17lh chapter of Fortew^ue, says That in time
of paganism the Druids were the Liwyers, and
determined controversies ; the same persons
were their priej»tsaod judges. And sir Henry
Spelman, in his discourse of Law Terms, telfs
us, That ID the infaoey of Christianity the
bishops and clergymen did hear and determine
all causes amongst the christians. And liow
those matters were settled, when Christianity
came to be established amongst us, sir Thomas
Smith will acquaint your lordship, in his
treatise De nemjbtica et Admiuisiratione An-
gforum ; a book I have oiten heard cite*! in
this court, not only at the bar, but by very
learned judges 00 the bench. In his third
book, the 11th chapter, are these wonis: * In
* qualuor potissrmum caiisarum generibus
* Archiepiscopi Episcopiqiie pecnliarem juris*
^ ilictioncm surtiuntur, in testtamentis et le^atis,
^ in decimis et oiortuariis, in nuptiis, adufterto
* aut fornicatione,et in iisdemuin omnibtts qum^
*■ ad ordineni«k decusEcc1esiaRtTcumconserlao•
* dumetrcligionem constabdiemlain pertinent;
*■ nam majores nostri rempublicam primo ordi-
* narunt, postea tidei Christianas nomeu ilede-
* runt et politiamsicconstitutam, com ea quam
' Apostoli, doctores theologique religionein hi-
* vexeruot^ semper refmuerunt ; qivicquid ad
* conscientiic forum pertinebat, dlis utpote
* peritioribus, et oh vitce sanctiraoniam morurn*
' que probitatem laudatti^simis, quibusque confi'
*■ debaut, maxime deleg.ibant.' I shall nut
take up your lordship's time to prove, out of
Magna Charta, and other old laws, that the
clergy have rights, liberties, privileges and im-
munities ; but taking that for granted, shall
proceed to examine, whether this case doth :iny
way, and how, cooceni their ritxhts ood ]iri»i-
leges. h cannot be denied, but that to be
exempt from the ordinary and common juris-
diction is an immunity, and to have conusance
of causes iii u liberty and privilege: but tbe
question still is, if the clergy are in cases of tliis
nature exempt from the common jurisdiction of
the king's temporal courts, and the ecclesiasiticat
judges have conusance of the offence (if an
offence it be) of which these gentlemeu stand
accused ? My lor«J Coke, in his 5th Beporl, in
the cause of the king^s ecclesia«itical law, Ibl, 9,
says, " As in temporal causes the king, hy the
rooulh of his judges of justice, doih judge and
determine the same by the lemporal laws of
England ; so in causes ecclesiastical and sjiiri*
tual, as uamely, blaaphemyf apostacy trom
Christianity, lohjsins, ordering, that is, ^ordina*
tion), admissioDS, institutions of clerks, cekbrc-
tion of divine service, and others, the conu-
sance whereof belongs not to the common law
of EngUtud, tbetaine are^to be detertuined oud
4S9] S WILLIAM IIL Proeeedmgt
decided by ecclesiastical judges, according to
the king's ecclesiastical, laws of this reuliii."
In the case of Holi and D]|fhtDn in the 12th of
king James.tbe Hrst is reported 1 Rolle's
Kep. 41U). who were brought up into this conrt
by Habeas Corpus, the return whereof was,
that they %vere coinmitied b^'the liigli com mis-
sion court, aud the cause ot their commitment
was, that they were dematid^id by the high
commission court if bey would coDtbrmthi^m-
seives to the custom of the chnrch i*f England,
and receive the sacrament kneeling ; aud for
that they would nut give a direct i^u^wer to it,
vhey were commiited; and thou<;h it was
moved l»y seijcant Hanrey to Iiave them dis-
charged, yet Cuke und Dodehclge said, that
the high cuuimissiun coin^t had jurimlictjoi) o1
schisms and heresies, and in that case they
were accused of a schism, and thereture they
had jurisitiction of the cause ; and so the court
Temauded them.
NoM', my lord, within all and every one of
tbese description j of spiritual canses comes this
th^is DOW bf^tire your lordship ; for acconl-
ing to that of sir Tl^fHuas Smith, this concerns
onlers or oidinatimi, for it was bv virtue of
thdr ordinntioti ih^ they did it. It relates to
the decorum off the church, and concerns the
establishment of religion : for ibe indictment
says, it whs done lo the scandal of the Protes-
tant religion now by bweslahliitheff. And that
it is maUer of conscience, is in itself apparent.
.Thfi case comes likewise withiu my lord Coke's
description of spiritual causes ; for it concerns
ordmnif and the celebration of divine service ;
for the quesriori is. Whether thev |>€rformed
as they ouj^ht to do .' And the" indiclraciit
itself shews it ; which not only stiles the de-
fendants clerkB, but says they did it * ul Prcs-
fcytfcri Ecclesi« ogbcanat* • *whirl in iuiates it
was done in cek'hraling divine service. And if
kneetinij at the sacranient be a matter of eccle-
siastical conusance, and out of the reach nfthe
lempoml couit^ ; though the ri'brick is inurh
more plain aud oxpre** in tliatthau in our cane,
yet if thai onconformity ho called a M'hi.sin, ii
IS only examinali eiu the spirit'iai courts, whe-
ther oun$ Im' ko (ir no. Aral tlic rather, my
lord, shall the hislidp'scouvi. or l lie bishop Iuhi*-
«lf, judge this matter, for tljjif J>y i!:l' om-
mon law erclcsiastical, the bislmp is appoinlwl
the visitor of all that enter into hiiy «;nlcrs,
and he is to sro if they livi- anil act ;KT'»r ".invr
to their ordination, and tu pum^h tiem thkit do
amiss. And absolutioM is one i»f tlic i^ rp.it end
of ordination ; and for this purpoj.. do:h f ije
bishop make his fjv({MCMn vi-^itHfii'-.s. > •)«•,
fny lord^ where the law doili r.npoinl ;: parruu-
lar visitor, he alone is to lock to ilsut < liari;*:,
and no one clw? to inteHav: ai: . that is thi*
retLSon why a MaiiilaiDiis di^l s.o: l"o;iMf'r1y ^u
out of ihisVnirt lo restore A munk or friar, lior
at this nif^to a ^lki*Fofa college a pn.c:or
of >nclor$Comn]mis,<irtheljke Aiid, 1 think,
on that poini thecailse oj' Biceti^r Cotk'^e was
adjudged Dg^ninstHr. B«rry, in the IlDUse of
Lords. To tliis I must crave leave to adtl,
agaimt Tltree Nonjuring Clerggmmt [440
that where the ecclesiastical oonrt liath oona*
sance of any cause, all other ilimgh thai are
hicident or relating to it are hkewjse w Ubia
their jurisdiction : ' Cognitio prLiiclpohs trabil
* ad se accessorium.* And ii»e bookf are «i
ful of iuj^tanres lliereiif. that 1 iie«d nutuieiitius
any. And if any inlcnor o^cer iiun|^TF«a«5 ia
acting or doin^ ihat whii^it betonga to eccleai-
asticai conusance, the aiclibishops and bi^ps
are to punii^h itfand the temporal judge u not
to interfere. kxHctloUi mid extorltotis Mi
more like temporal otienceF, than what tbcn
ddetidanls suind now coavictedof; fbrtbssi
in their own nature xuud lo stir up the pMpIs
to seJiUon mui rebellion , yet these oflcooci,
when committed by spiritual tnenor in eode-
siiisiitmi allkini, by the common law our oowti
could iiLil meddle with thenu Mr. Prynne^ia
his A ni mad versions on my kml Coke^^ Idttftk
Inst lutes, toi. 23d cites this rec<ird out of tht
pelirions n parhametit, Anntr 8 £» 1. * Ho*
* mines de Lundou comrjurnmlur di^ offidtttB
^ et mini^^tnsEcclesi^ demultiinodiH veialMBi-
' bus ct e£af!tionLhus nimis oncrosis, per qaM
* plus erlorquent de populo quam ornnes om
* laicales ; et petunt qunA Hex opponat none*
^ ditim ieibnanicr^ ne destrnatiir populns ia
* occulto. The beginning ot^ the king's m*
swer is sonietvhit ilonbtfully penned. Mr*
Pryune gi\es it tu ^ distingufshing dtatiiM^j
* si curia Regis posiit amendari, taciat-' M
the rest of the imswer is direct ; * C^
* ccllarins emendft in lemporalibus, Aiflki^
* [liscupus facial iu Epirituaubue/ But ihiB
0[)pressions nud €\'tortions, it seems, coo-
tin in d ; and sonic altempLs there were, lo
punish th'^m fay inclietmenls at common law ;
hut such i:n!i'.*tuic ;t3 upte thouffUt itl^nd (^
in heOcit^i! lUr ul"* 6 E. 3, par % Tom*
* Rax Chm. 6 td. 5, par 3 izieto. lA
dorso, in Turri London. Rex dil«eris etfido-
I « libus suis Hiigoni de Courtney, Comiti, De-
« von*, ct ^ttvm ui«, Jusiiciariis nostriasd 4^
* versa transgrc«si nes, oppreESiones t-i extsr>
* fiiones, damn: grflvamina et ejceessu^at^
* et populo iiostro iltaiain Com Def on^ aodieodi'
^ cL terminated' a^^stiriiAi^ sahitem. C-uni in al-
* tirao concilionoitn* apud VVe&tiD'teniu,adiv*
* qniHttiontm Prebtor regTii noslr* AaglB
( conceasimus, quod processibus omnibas ^
t singulis coram Jusiieiarits nosiris iue' '^
< sen fact is contra virus Ecclesia«tJcoi«
< jn*,cnnfpie conditiooisaiit status fnerint, i
« aJ^iorfiiuuibus et excesisibuK per ipsos in i
< acjunuirt coroiuEinoftrBe prejadicium in <
« citici jurii^di(5tiuiii^ EucleiiELstic^c factist ad €tf\
' il^enii* in ipsus liijs oecLsiombus prnmu?e;Ml*|
Misque ad proxi>uuui piirljfumt'muni i <i iniiffl]
« suprrsi'draiur ; • t qui d inqiiisitiones
« extorsionib'.is d cxresf-ihus liiijusmodii
* cos per .lu.<f(iri.i:'ios citra dictum parlian
* n'.dlatcnus lU* novo ti.uit ; Vobis inandaMi%
< quod nmnibus prncei^i^ bii^€orum vobis in cntf
« predict' inci:<»atis veraa-iquoftcuwiuev" "^
< clesiasticus, |)rc» eitorsiortibus et i
( per ipsDs in nvstri et jurium
441J Jar ainhing Sir W. Varhpu and Sir J. Freind. A. D. 1696.
[44S
13, dono, I find a special * Supersedeai jiro-
* oeisibiis uoiDibiiset siiigulis coram justiciariis
' Dosrtria inchoalis sen tactis contra viros £c-
* eiesiaaticosy ciyuscunquecondiliouis aulHtaius
' fiierint, super eztorsioiiibus et exccssibiis per
* ipsos ID nostri ac juriuni oorone nostne pre-
*judiciuin iu exercitiu jurisdictioiiis Eccle-
* iiasiics factis.' AutI ibat there should be no
nuM-e Dew indJctaiPDts against them before the
next partiament. Aud iu the Close Roll 17 £.
3, liar. 1, ro. 24, dorsu, is |he like writ to the
junicca of Oyer and Terminer for the county of
Herelbrd, iu which there is a Supertedeas to
stay tbe proceedings at common law against
soHie particular persons for those oflcnces. And
in the close roll of 18 E. 3, m. 14, dorso, (8ir
Wdiiana Dugviale is mistaken in tbe year,
when be calls it tbe 17th) is the summons to
lAriiament, tlie next parliament aAer tbe afore-
MJd writs ; and the summons runs thus :
' Quia pro quibusdam arduis et urffcntibus ue-
' gutiis, hoiKtreni Dei, et decus et defensionem
* eeclesin Aiiglicanue, et salubre regimen populi
' ct regni iioatri Anglis summe contingentibus,
*ordina¥imus|»arliaroentum nostrum,' &c. At
which parliament there was an act made, which
ii in the printed statutes 18 £. 3. c. 6. in these
words : *' Whereas comniissions be newly
Bide to difers justices to oiake inquiry upon
judges of boly church, wlietber they made just
process or excessive in causes testamentary,
•mi other, which nDtorioosly Dcrtaineth to the
coumnce of holy church : the said justices
hive inquired, and caused to be indicted judges
of kolr church, in Uemisbini^ the franchise of
holy cliurcb, th«t such commissions be repeal-
ed, and from henceforth defeodetl." And so
tbe officers of tbe ecclesiastical courts went on
vith tlieir oppressions and extortions, and the
ittDporal courts could not lay hold of tbem
iv those offences, as appears oy several peti-
tions and answers in tbe parliament rolls,
Si £. 3, D. 51. 1 II. 5, n. 23, till the statute,
2t H. 8, c. 5, brongbt tbem within the conu-
naceoftbe courts of common law. And if
ihearcfaibishops and bishops can alone, (the sta-
tute being out of the case) exclusive of all secu-
'prejudicium iu exercitio jurisdictionis Eccle-
' nasties factis, usque ad proximuui pariiamen-
* turn noatrum supersederi faciatis ; et Vic'
* Dostr' com' prsedict' detis in mandatis, quod
* exigend' in ijisos vel eorum aliquem piniissa
* oocasione promnlgand' usque ail dictum par-
*liamentum nostrum supenedeat: acvosin-
' qnsitioaibus super extorsionibus et excessibus
* higusmodi contra dictos viros Ecclesiasticos
*• citra parliamentum pncdict' de novo capieod'
'similiter supersedeatis, juxta promissienem
< Boelram predict. (T. prefato Custode apud
* Kenynton, 15 die Noverobris. — Per Coiici-
' linm. — Eodem modoraandatum est Thome de
* Bcrkele, etSociissuis, Justic' ad di versa trans-
* gnasioiies, &c. in com' Som. (T. ut supra.)'
And there is a space in tlic roll, supposed to
belefl fiir eiitering uf other writs of the like
that were then issued idrth.
4
lar power, look after and punish the irregulari-
ties of their commissaries, though tbey tended
to tbe prejudice of the king and lii^ royal pre-
rogative, their (lower must be full as great over
allecclesiastics, and in an eminent manner over
the clergy, in all matters reJatiu^ to their func-
tion, and especially iu all things which concern
the discipline of tbe church, of which the
bishops are judgeii, as well as of the doctrine,
Uraclon, in bis fit\h Book, * De Exceptionibus,
< c. 2, fol. 401, a.' treating concerning the ju-
risdiction of courts hath tliis expression :
* Clericus in uullo conveniendus est coram
* judice seculari, quod pertineat ad forum £c-
* clesiasticum, siuut in causis spiritualibus, vel
* spiritualitati annexis, ut si pro peccato vel
* transgressione fuerit pienitentia injuiigenda,
* et (inucasu Judex Ecclesiasticus liabet cog-
* nitionem ; quia non pertineat ad llegem in -
^ jungere pccpitentias, ncc ad judicem secula-
* rem, nuc ctiaiu ad cos pertinet cognoscere de
* lis, sunt qn» spiritualibus annexa.' And if tbe
temporal courts cannot hold plea * de pceniteD-
* tia injunj^nda,' certainly they cannot pnnisb
< pro |HBnitcDtia non dccUirata.' Bcsules, I
think It cannot be denied, that absolution is
spiritual, < vel saltern spiritualitati annexa.*
More instaDC(« 1 could produce, if I thought it
necessary, to prove that whcie the eeclesia»-
tical court halh conusance' of the celebration of
divine seiviceor other spiritual matters, it mni
hold nlea of what is incident or belonging to it ;
andtnereibrc of the mind, intention, and de-
sign with which any spiritual office is perform-
ed, if such mind can be fatliomed, aud inten-
tion punished. And I presume, my lord,
there will be no occasion to prove that all the,
rights, liberties, iirivileges and immunities, that
the clergy lawliiily eqjoved in the time of
popery, do still belong to the present church of
England, unless they are taken away or altered
by act of parliament ; for tliough the erron»
were corrected, and abuses reformed in mattcra
of doctrine and of foreign jurisdiction, yet tbe
legal rights of the church, and power of the
clergy, were not shaken or invaded by tbe re-
formation.
3. And now, my lord, 1 come to tbe tbifd
and last point I propose to speak to ; and that
is, supposing what these gentlemen stand ac-
cused of is an efieoce, and tlut this court liath
conusance of it ; yet, with submission to your
lordship, there is no judgment to be given
against us on tliis indictment. I believe the
kmg's counsel cannot shew me auy rule at
common law concerning absolution. * So that,
if we are guilty of any offend?, it is tor not ob-
serving the Rubric. If we have acted accord-
ing to the letter and intent of that, no indict-
ment will lie against us for the fact we are now
accused of: and if we have deviated from the
Rubric, then the indictment ought to have been
framed on the act of uniformity. It is a riife
laid down in our books, That wliere a statute
makes that an offence which was not so befbrr,
an indictment for that offence must conclude
' contra fbrmam statuti.' Ho is 1 Saundevs
443] 8 WILLIAM III. Proceedings against Three Nonjuring Clergymen^ [444
249. 2 Ilol1e*8 Abr. 8S. 1 Crake 449, and
Joneii 379. And I could instance in many
precedents that are drawn accunlingly. 1 shall
mention some tew on this very act of parlia-
ment. Tliey are all in the same term, Mich. X5
and 16 queen Eliz. in this court, and against
the same i>erson, i^ibert Johnson, of St. Cle-
ments Danes, clerk. One of the indictments is
* for speaking against the Book of Common
^ Prayer, contra formam statuti:' Another
against him, * for omitting the Litaoy, E|)istle
' and Gospel, in saying the Divine Service :'
Another against him,* tor christening a child,
* and not signing him with the sign of the
* cross :' another against him, • for marrying a
* couple without a wedding ring :' another
against the same person, * for saying morning
* and evening service without a surplice.' And
though the preamble and inducement to every
one of these indictments make an heavy com-
plaint against the |>erson that is so indicted, as if
ne intended to ficstroy the Protestant religion
by law established, and overthrow the govern-
ment, yet they all conclude * contra formam
* statuti.* Now, my lord, according to the
mle and precedents f have cited, this indict-
ment that is now before your lordship should
have set forth, that the dct'rndants did not move
air John Friend and sir William Perkins to a
special confession of their sins, but without it
Sive them absolution, * c«>ntra formam statuti.'
ut supping, my lord, it should bo answered.
Chat tlie mdictmeot is rather for the ill inten-
tion of the defendants, than for not observing
the Rubric; whh humble submission to your
lordship, if such an iudictment may be brought,
yet this before your lordship is not rightly
framed, but ib insuHicient and uncertain in re-
lation to that \*try intent : For the indictment
says, these dtlendants conspiring, intending,
and designing the execrable, horrible, and de-
testable treason, for which sir John Friend and
sir William Perkins weri! then just going to be
executed, to justify, or at least to extenuate,
diminish, and undervuliie, ^Vc. did absolve them.
Now, my lord, p.on constat wliich they aimed
at, justifying or undervaluing; and they can-
not be found guilty oi'all : for tiiough the ver-
dict be general as to this, yet it is according to
the indictment, which is in the disjunctive, * Et
* in disjunctivis sutHcit unum verificari.' There-
fore our common law dolli always require cer-
tainty, but especially in indictments ; they
ought to be ceriain to every intent, that a cer-
tain judgment may he given on them. Where
a man in pleading yets tortli his title by a con-
veyance, in which are the words * give, grant,
* release, coniirro, bargain, sell,' Sec. he must
shew which of them lie makes use of, and
which he apiilies to his purpose, or else his
plea is naught, 1 Ventr. 109. The return
of a Habeas Corpus sets forth the commitment,
' Kt lm.>c est r.usa eaptionis seu detcntionis,'
a(ljiid;4ed an ill return, 1 Ventr. S24. In Tri
nity Temi last, in this t^oiirt, there were seve-
ral iudictmenis against liaker and others fur
exercising the trade of a rope -maker, ' ejcistens
' misteriom infra regnum Anglis vd Wallis ;'
and there, although the ofllenoe was the same
whether it were a trade in £nglaud or Wales,
yet for the uncertaioty which the disjunctive
made, the indictment was quasheil. And in
the Ustterm (H. 9 W. 3. B. U.) Sanky uid
another quaker were brought uii by Habets
Corpus,* and the return set fortn a commit-
ment by two justices, by virtue of the statiitt^
27 U. B, c. SO, reciting a certificate from the
commissary, that a cause of subtraction of tytbcs
or other ecclesiastical duty was depending in
the ecclesiastical court, to which the defendanu
refused to answer. In that cause, though the
wonls of the act of parliament are strictly pur-
sued, whicli gives the same remedy where the
fact is for other ecclesiastical does as it does
for tythes, yet because the certificate on which
the return was grounded, did not set forth in
imrticular for what the suit was commenced in
the ecclesiastical court, but only in the dis-
junctive, for that reason the commitment wtn
held insufiicient, and the parties discharged.
In Mr. Howe's case, Bendlow, fol. 00, in Re-
plevin, the plaintiff* claims common appurte-
nant to a manor or a messuage called CursaH
Grange, by prescription, and uey were at issue
on the prescription ; but in arrest of taking the
inquest, it was shewn to the court, that the
prescription was uncertain ibr the common, to
wit, to the manor or messuage: where he
ought to have claimed it to one only. And the
court adjudged them to re-plead, though the
place itself was expressly and certainly named,
and called Cun^all Ctrange. In the same book,
fol. 177, pi. o9, an ejeclinciit * de una acra
* terra* sive prati' adjudginl ill ; and so is tlir
same case reported, Dyer '261, pi. :J9, and 1
And. 31, pi. 73. An inquisition on a * dnin
* clausit extrcmnm' finds, that a man ^a^
seized *■ de uno messuagio sive teiiemento,'
was held void and insufiicient, Ley. 9, 13 Kep.
48. »So an ejectment * de uuo messuagio sivp
* tenemento' is ill, even alter a verdict, 1 Uullc's
Itep. 7, 331. 2 Itolle's Abr. 80. 3 l^nnard,
828. Iav. 43. 2 Cor. 621. 1 Siderliii. C95.
1 Cro. 188, and many other books. And in
Noy's iteports, on the like occasion, it is said,
that a writ in the disjunctive is void. And in
Popham, fol. 203, it is held, that an ejectment
* de burgagio sive tcnemento' is naught.
Though indeed in serjeantllardressc's Reports,
fol. 173, in the case of Dan vers versus Willing-
ton, it was held, that an ejectineiit * pro uoo
* messuagio sive burgagio' in Hay infra Muros
was good enough ; but the reason given w as,
because * messuagium et burgagium' signify
the same thing in a borough. There was a
cause (Pasch. or Tr. 8 W. 3.) about two years
since in this court, it was an indictment
against Stoker, for that he ' fabricavit, sen fa-
' oricari causavit,' a certain bill.f Exception
* See Lord Raymond, 323. Holt, 657. U
Mwl. Hep. 1(1').
t Sec Siocker's Case, Salkeld, 312. 371.
5 Mod. Itep. 137.
far abgoking Sir W. Parhyns and Sir J. Frein(L A. D. 169G.
[446
»to it, because it was in the diRJunc-
rreas it ought to have been positive and
ir. And 1 tbiok the counsel for the
or could never get over that excep-
id, to the best of my remembrance,
H but one answer that was aimed at,
wma, that tlie ofreD<.*e and fact were
i I for he (bat caused it to be counter-
night be truly said to counterfeit it :
nk that was not held a good answer to
eption. But in our case that cannot
ided : * Justiftcare' and * Vilipendere'
Terv different signification. The very
nt cloth insinuate as much ; * Justi-
vel sallem extenuare, diroinuere, et
lere.' The < vel saltern' doth shew,
sobaequeiit words are not of so great
those pTPcedent. And indeed almost
they are ; for he that justifies, denies
ivas an oflence; whilst he thatdimi-
undervalues it, says truly, it was an
but not so great as is pretended. And,
, by reason of this uncertainty, the
ust be in doubt what judgment to
r it is evident, he that would justify
I Freind's offence would deserve a
NiDishment, than he that should only
, and say it was not so great an offence
'nock's. Such an invasion is not so
ad villainous, nor of so deep a dye, as
larous assassination that was intended,
ch a manner, methinks, a man might
extenuate an offence, when it would
y criminal to maintain and justify the
iesid«fs, ' Vilipendere' mav be taken to
iontemn, and condemn tbc fact; and
rt be thought a criooeP And the necnon
dsy with those other aggravations that
i added, cannot mead the matter : for
larangue of persuading persons that
Fieind and sir William Perkins were
, and the inciting the people to treason
sHion, depend purely on the justitica-
Extenuation of the crime ; for if the
e justified, people would be sooner in-
< K>lk>w their example, than if it were
edjped to be an offence, but the hein-
ot it lessened, diminished, or vilified.
eh of these the defendants aimed at
bcful to him that drew the indictment,
to the jurjr, and therefore I hope the
ill give no judgment on it. Besides
lord, there is, I presume, another ex-
that may prove fatal to this indict-
lod that IS, the insufiicient settiniir forth
K of sir John Freind and sir Wil-
f in not shewing when, where, or
hat judges they were atuinted, which,
naisrioa to your lordship, ought of ue-
D have bfCB done. I acknowledge that
requires not much cer-
I it is such a matter, on which
kdoth 10 depend that you can make
without it, and when it is traversable,
I mbstance, and must of necessity be
f czprcased. For instance, if J. S. be
, tithtr civilly or criminaUy> of an
offence, which is not so but with relation to a
fact of J. D. there the fact of J. D. must be
certainly expressed. As in Hetley, 73. 3 Cro.
75S2. plowman, a constable, was indicted for
suffering one, who was arrested * pro quodam
* felonia antea facta,' to escape ; and because
it was not shewn what felony it was, and when
done, he was discharged. 2So in this case,-if it
be an offence to absolve traitors, whether they
are attainted or no, then the treason ought to
be specially and particularly set forth, and
when and where it was committed : hut if it be
not an offence to absolve traitors, unless they
are attainted, then that attainder ought to be as
fully and plainly expressed as the time and
place where those traitors wore executed,
which in this indictment is carefully set forth.
And that this indictment is faulty in this par-
ticular, I shall endeavour to prove, as well by
precedents, as by the opinions and judgments
in our books of hiw. But inasmuch as thi*
indictment is ' prime impressionis,' I must
trespass on your lordship's patience, whilst I
refer to other precedents in which records art
mentioned and recitetl, and from a parity of
reason reduce them to tlie present case. I shall
begin with precedents of declarations. If an
action of deot be brought against a sheriff for
the escape of one in execution, the time and
place, and the court in which the judgment
was obtaine<l, is always mentiomrd. Hem. 74.
Robinson, 311. Brown's Entries, 1 par. 18.
2 par. 16. Brownlow's Lat. Rediviv. S3.
Thompson, 132. and Vidian 193, 197. and
several other books.
So against a sheriff for not taking one in ex«
ecution Uiat was in his presence, sets forth the
judgment, and out of what court, when and
where tlie execution issued. Upper Bench
Precedents, 79. Astou, 67. 2 Brownlow, 36, 36.
An action for maliciously indicting the plains
tiff for felony sets forth, when, where, and be- '
fore whom tiie indictment was. Vidian, 145.
Hansard, 24, 26, and 63.
An ittformatioii against one for taking and
carrying away the goods of afelo de se, sets
forth the inquisition, and before whom it was
taken. Old Book of Entries, 226, b.
An information for intnidiug into lands which
came to the king's hands by attainder, acts forth
the record of attainder, where, when, and be-
fore whom. Rttslairs Entries, 387, 412. Plow*
den's Commentaiies, 647. Ashton, 181.
And so, my lord, in all good precedents,
where records of attainder are mentioue<l, the
time, place and court are always set forth. So
is Wiat's attainder, Co. Entries, 79. Rastall,
413, b. Plowden'sCom. 449.
So is Littleton's attainder, Co. Entries, 422,
b. And Trunel's attainder, Co. Entries, 246,
b. the duke of Somerset's attainder, Co. En-
tries, 481, and the attainder of John Bary, iu
the same book, fol. 699.
So if the master of the Crown-Office takes
an inquisition concerning the escape of any pri-
soners of this coi^rt, according to the 39tb of
H. 6, c. 33, the record oo which they were
447] 8 WILLIAM III. Proeeedings againU Three Nunjuring CUrgymen, [4tt
eommitted is fully taken notice of, as I have
aeva a prece4leD\ 'Micii. 4 & 5 Kl. Dot. 7. In
the case of iMr. Uraddon ami Mr. Speake, the
indictment* doth not only say that my lord
Essex did murder himself at such a time and
place, but ailds further, * as by inquisition taken
* at the Tower of London aforesaid, upon view
* of the body of the said Arthur earl of Essex,
* and now in this court remaiuin«f of record,
* does more plainly ap|iear.' So the indictment
^fainst Tasborou^h and l^-ice.f for suboruing-
Dtigdale to retract his evidence that he had
S'veu against the Popish Recusants, 6cc. nets
rth the record, where and before whom such
convictions were, iio in the case of Thom[isoii,
Pain and Farewel, lor printing and publishing
a scandalous pamphlet relating to sir Edmond-
bnrv Godfrey's death, the information ^ doth
not begin like this indictment, * Whereas Green,
* Bury, and Hill, were attainted of murder ;' but
•eta forth, Thatit was in such a court, in such a
year and term, with the indictment and attainder
at large, and where the record is to be found.
1 conid instance in many more precedents of
the like nature ; but I fear I have tired your
lordship^s patience too much already, and there-
lore shall conclude with one that will lea«l me
to the opinions and judgments in our books nf
law, which I hope will he of use to fortify the
precedents I have cited to prove this indict-
ment vicious. It is in Keilwoy, 193. An in-
oulsition that finds the attainder of one Hays :
the record is lirge, and therefore I shall not
I'eche it, nor make any other obseiTations on it
than what are in the very report, which arc in
these words : ** Memorandum. This Inquisi-
tion was drawn by good advice, that is to say,
by the council ot'king Henry the 7lli ; yrt the
inquisition wliicli entitled the kinif to the land,
by reason of tfie attainder of the said Jiavs,
doth not niak*? any mcuiion of iho indicteir- ,
nor of the names of the justices of jieacp who
took the inrii(;tm''nt, but only the duy <if the
the indictment ttikcu, and tlio day of his ;)t-
vainder, without rxprrsbly mcni toning wh:it
all the special matter shall come in bv the cer-
tificate : and although the justices of gaol-de-
livery, or other justices, before whom the coo-
viction or attainder is, do not certify the ori-
G^inal, it is not material, so that tliey certify the
body of the record of the attainder or convic-
tion.'* These are the words of that book : and,
mv lord, it must be on the same reason, that
wuere a man pleads a couvic4ioD of i-ccusanci*,
he must shew before whom it was, N'uy, 89.
07. And so arc the precedents in Wincfae's
Entries, 522, 5<i3, 524. 2 Browul. 13. Hem.
503. 8o in an action for maliciously iudictinj^
a man for treason, it is not sufficient to say bf>
ditl indict the plaintiff; nay, if iic adds coram
such persons, justices of tiie peace, and omiu
* ad gaolam deiiberand' aasignat', it is ill, 3 Cro.
S57. And in an action for maliciously indict
ing a man of [leijury, be must set forth the io-
dictment, and shew that it was preferred befon»
one that had conusance of such matters. Aod
that is not all ; he must likewise shew, that the
cause in which he swore was coram judice,
3 Cro. 725. He that pleads a presentment iu
a court leet, must set forth the day when the
court was holden, 2 Saunders, 3ga i Ventris,
107. And therefore to plead that at * quandam ca-
* riam' he was amerced, is ill. Modem Rep, 75.
An indictment of maintenance in * quodam
* placito coram Domino Rege pendente,* not
mentioning where the King's- Bench sst, wis
held faUl m arrest of judgment, 1-Ventr. 909.
An indictment for a second offence, where
the punishment is greater than for the first,
ought to recite the tbrnicr conviction, 1 I^eii-
n;ud, 095. So it was done in Uonrer Booth's
Case, Mo. 606, \*l 91 '•. In SKeble, 737, an
indictment for a second oifence of printini; did
set forth the first, but did not sav where it uas ;
therefore Tuisden held tiiu iudiVlment nau»^ht.
And if there be a nccessityofscttinflf forth so
pnx'isrlv the first cunvieiion, to make the se-
c(»nd odWicr the pfreater, meihinks, iu reason,
! ii must as cortainly l»c set forth, where it ^Ives
j the very esse to the oHeiuT. And if such a ge-
kind of felony, hut * pioi|ua(lnm folonia,' aiid ' neral way of referrinpf to records should be al-
i<:ei» before whom Ik was ' loncd in iudtctineuts, ii would not only over-
the names of the jn»t
attainted." These ai-e the words ol" the rr-
porter: and, my loi-d, that this casr '\.i of pfi»-
neral c*oncern, appears by the next case va that
book, Keilway. 191. An indictment was found
on the «rscapo of certain persons convict, wiili-
out shewing befnre what justices the oonviciiun
was ; and after the matter was considered at
the bar and the bench, the indictment was hf.-lrl
insuflicient : hut says that case, ** The names
of the justices of peace i)cfore whom the ori-
^nal indictment was taken is not material, nor
the specify intf of thefV-lony, *proul patet supra'
in the case of Bays ; for wIm iv the couM is in-
structed to whom to write to certify the rcronl,
* See the Indictment in Eii$r|ish ami Luiiri,
Tol. 9, pp. 1128, 1129, of this Collection.
f See the Indictments iu English and iiSlin,
yol. 7, pp. 881. 884.
X See the Inibrioalion, tsI. 8, p. 1359.
throw all the precedent:* u-id nther authorities
I I have citul, hut the deiendants must needs lie
■ under severalinconvcnienceK. They would then
i be cut oil" from the privilej^e of pleading * Nul
! * tie] I^coihI,* or traversinj^ it, as was done in
, l5a^b'sCa?e heforo- mentioned : for, althousii
I siicli a travi rse mij^ht amount almof t to the
g"cueral isMie, yet (M>mprchendinnr matter ol
ia-.v, the dolendunts may picati it specially,
! llobar'i, V27. And if the deft ndants plead tfie
' general iRsue, how shuil they know where t»
eo to lind out the record, to see ^* liether a true
copy l;ff produced a^ains; them ■' And it cannot
' he a suflicicnt answer to sa\, that the indict-
ment sets forth lliMt ' debit'e et leo-itime* they
, were lonvicled and attainted ; it must be shewn
, aftor wliut inanncM' they were attainted, that the
court may jn(li;e wliptlier it was lepilly done or
no. In F*aiiick Uardiuj:'s Case, iu the first
year of this kin^ uud the l^te (|uecn (it is re-
:49j Jhr ahehing Sir W. ParhfM and Sir X Frdnd. A. D. 161M.
orted in 9 Ventr. 816),* the iodicttnent against
in was for high-treBsoD, am) did set forth
bat be adhered to the kinf^'s enemies. The
wry found, that be listed and lent sohtiers to
be Preoch kinjp, then an enemy to our kin|f
" ' the ■ "
ad queen : but the court held
indictment
Moueei
■o short there, because it mentioned * hostibus
at inimicis' generally ; whereas it should have
Kl forth who those enemies were, that the
Mrt might take notice whether they were
snemies, as the law intended.
In the case of Woodly and BckIt, S Cro.
191. Ydverton 1213. 1 Bi-ownlow'lU. in
Idht for rent upon a lease lor years, the plaiu-
tiff derives his title b^ the grant of the rever-
MB by way of bargain and sale in foe from the
bst Insor, and declares, that by indenture of
Meb a date, one grants, bsrgains and sells for
nooey to him tine rerersion in fee, which in-
dniOK was inmlled such a day ' secundum
ifiwmam statuti;' and on nil debet pleaded,
Ibere was a verdict for the plaintiff: vet judg-
DUDt Has arrested, because the pUintiff had
B3t shewn in m hat court the indenture was in-
idled ; though it might liave been, and un-
inbledly it was alMged, that it was but a
Doaveyaaoe to the title, and an inducement to
be actioD, and * secundum for mam statuti'
Aews U was ' debite et legitime.* 8o in Allen
10. King against Somerland. In debt for rent
^ plaintiff declares on a lease for years made
qr a stnager, wlio bargained and sold the^ re-
^Mon * per indenturam debito modo inrotulat'
> is Curia Caooellaria.' After a venlict for the
pUatiff, OB nil debet pleaded, it was moved in
mart of iudgmcnt, ttiat he had not alledged
ht inrolTmcot to be within six months, nor
'ssaiadum formam statuti;' and though it
NK said to be debito modo^ yet that would not
Mad the matter, nor aid the incertaiuty, and
iaifore judgment was arrested. Su m the
Mae book and folio, Colman against Painter,
la in aelioD hy the lessee against his lessor on
letvenantlbr peaceable enjoyment, he assigns
Iv breach • former lease to J. 8. The defeo-
Im pleads, that the lease to J. S. was with
BoaditioD of re-entry for non-payment of rent,
mi thai bcfoee the lease made to the plaintifl*,
le rent waa behind, and * legitime demaudut'
iKBBdun fomam indantone,' aud upon non-
piysMBt ha Te-entered| and made the lease to
ikt plaintiffs and upoil demurrer it was re-
irifM, that the demand was insufficiently al-
Unl ; for, says the book, he ought to set
bn ctftainly, when and where it was maile,
Ihtt k night •PP^r to the court to be \efpk\,
I shall trouble your lordship but with oue
«ae more to this point ; it is in S Leonard 7^.
A Quo Warranto was brought by the queen
■|ust sir John Constable, who claimed cer •
te wreok in the c»unty of York. The defen-
d, that £dward duke of Bucking-
1 of such a manor, to which he
^ Bse. abOy in vol. 13, p. 645. of this Col-
■Ohb, a Mote of Patrick Harding's Cofe from
*> MtB. of sir WiUiam WiUUunf .
^OU MIL
[450
had wreck appendant, and that he was « da
* alta proilitione iledito modo attinctiis,' and that
found before the escheator ; and shewed fur-
ther, that that manor descended to queen
Mary, who granted the same to the earl of
Westmoreland, who granted the same to the
defendant : upon which it was dt'miin*ed ; aud
exception was taken to the ])lea, because the
attainder is not fully and certainly plradcd. Ik
was argued by Plowden, counsel fi>r the defen-
dant, that the attainder uas certainly pleaded,
* scilicet, deliito modo attinctus :' For, says he,
it is shewn that the wreck is appendant to the
manor, and then if he hath the manor, he hath
the wreck also : and if he had the manor, it is
not material to the queen how he hath it ; for
the flueen doth not claim the same, hut im -
peacheth the defendant for usio*^ there such
a liberty. But he there grants^ that if the
heir of the duke had demanded the manor there
against him, the attainder ought to have beeu
K leaded certainly. And if so much certainty
e required in pleading an attainder tliat makes
a title to an estate, that attainder must needs be
as fully, as clearly, and as certainly set fortli ;
that is the ground- work and foundation of an
indictment for that which is called a very great
offence, which is not lor alisolving two persons
in the parish of Paddington, nor for absolving
two impenitent traitors, hut tbrabsolvingtwo per-^
sons attainted of high* treason, who did not re-
pent of that treason of uhich they were at-
tainted.
There are, my lord, I think, some other
faults in the indictment. It mentions, That
sir John Freind aud sir William Perkins were
attainted for high- treason, in compassing the
kins^'s death, and adhering to his cncmiea ;
which were two treasons in ench of them, and
consequently four in all. Yet afterwards the
indictment suys, that these defendants intend-
ing to juNtify 'the horrid treason aforesaid (ia
the singular number.) So in tlie conclusion,
tliat the absolution was iriven * abstjue aliqua
* poBuitentia pro alta proditione pnedicta priua
* declarata,' without shewing which treason in
particular was unrepented of; and each of
them was not obliged to repent of all the trea-
sons, for they were not all his own. And ia
Uke the case this very term in this court, where
a rescous was returned against two persons,
tliat they had rescued J* §. pradici* without
shewing which, and there was J. 8. senior, and
J. 8. junior before- mentioned ; andt'jr this
incertanity that return was quashed . And it
seems to me to bear rouic rosemblunce to the
caseof Tiodallaml Cobbs, 3 U>nnard, fol* 9, 10.
In nn action of waste, the declaration shewa
the demise of the manor of ' Wulverton and other
lands, and assigns the waste < in quixlam bosc^
* vocat* W'olverton Wood, pumV prumnor* ;
aud it was held insufticient, for that it could
not be parcel of the manor and other landa
also.
i mitst likewise humbly submit it to your
lordship, whether tlio factitsclt' he sufficiently
set fortu, * «t COS abioivi prouuDtiarerouti' pro*
<0
4fll]
8 WILLIAM IIL Triai qfJouph Duvuoh nut othtrt.
im
nounced them to be absolved : whether it does
not refer to somewhat to be done hereafler,
and ought not rather to have been, * eos abso-
« Jutos pronuntiaverunt.'
The proclaoialioD for evidence before the
jnry is sworn, which ought to be after, and
several other informalities m the indictment and
proceedings, I should have spoken to ; and
nave justified and maintained the im|M)sition
of hands, from the doctrine and practice of our
church ; and likewise have slid mnomwImI tu
the matter that is specially Ibnad, to prav*
that these defendants are Uierebv aoiiiitted of
the whole : but thesef things will (I doubl not)
be much better done by sudi other ooantelaa
your lordship shall please to bear lor ibe de-
tendanta. I am sensible I bare almjy beoi
too tedious* for which I humbly beg pardon of
your lordship,. and pray yoor judgment fiar the
defendants.
394. The Trial of Joseph Dawson, Edward Fokseith, Williav
May, Wm. Bishop, James Lewis, and John Sparkes, at
the Old-Bailey, for Felony and Piracy : 8 William IIL
a. D. 1696.*
Admir. AngL st,
X HE Seasions of Oyer and Terminer, and
ffaol delirery, held for our sovereupi lord the
Eing, for the Jurisdiction of the Admiralty of
£n;(land, at Justice Hall in the Old Bailey, in
the suburbs of the city of London, on Monday
the 19tli day of October, in the 8th year of the
rei^ of onr said sorereign lord king William
the 3d, over England. &c. before the right
hon. Edwanl HumscI, esq. Henry Priestnian,
esq. ; sir Robert Rich, kt. and Imrt ; sir George
Rooke, kt sir John Ilouhlon, kt. and James
Kendal, esi{. Commissioners for executing and
exercising the office and place of Lord High
Admiral of England, res|>ectively assigned and
deputed; the right \%orshipful sir CliaHes
Heilges, kt. Doctor of Law, Lieutenant in the
High Court of Admiralty of England, Com-
missary General of our suvereigii lord the king,
and President aufl Jtulqfo uf the said court; the
right hon. Kir Juliii Holt, kt. Lord Chief Jus-
tice of the King's Beach ; sir George Treby,
kt. Lord Chief Justice of the Common Pleas ;
sir Edward Ward, kl. I^rd Chief JJaron of the
Exchequer ; sir Thomas Rokeiiy, kt. and one
of the Justices of the King's Bench ; sir Sa-
nuel Eyre, kt. another of the Justices of the
King's Bench ; sir John Turton, kt. another of
the Juki ices of the King's Bench ; sir John
Powell, kt. one of the Justices of the Common
Pleas ; sir Littleton Powis, kt. one of the Barons
of the Exchequer; William Bridgeman and
Josias Burchet, esqrs. ; Secretaries of the Ad-
miralty of England; Thomas I ^nc, William
King, and John Cooke, respectively Doctors of
Laws; and otluiis his Majesty's Justices
liamed in the jui<l Conuiiivsion.
* This case, under the name of l{ex v. May,
Bishop and others, is cited in East's Treatise
of the Pleas of the Cn»wn, eh. 17, s. 3, from a
Manuscript Commentary hy 3lr. Justice Treby
upon lord Hale's Summary, (»f \iliich au ac-
count is given by Mr. Eas»t iuimcdiutely after
the pre&ott to hu Treatise.
His Majesty's Cmnmisaiooers being ikm
and there met, the Commisaion was md, woi
proclamation madefor attendanct : After mhidL
the gentlemen of the mnd jury were eaM
and sworn, and receirnl their enarge frcM ikt
Charles Hedges, kt. Judge of the High Osort
of Admiralty, who set forth unto them the H-
ture of the CommissioB, the extent of thejurit*
diction of the court, and the ealgeet matter if
Iheir enquiries.
Forseith, William May, William Bishop^
James Lewis, and John 8|iarkea, prisoi
for feloniously and piratically taking and t
rving away, from persons unknown, a oei
ship called the Gunswav, with her tackle, ap«
parel, and furniture, to the value of 1,000/. aad
goods to the Talue'of 110/. together widk
100,000 pieces of eight, and 100,000 clieqaiB%'
upon the high seas, ten leagues from the capt
Sr. Johns, near Surat in the Kast Indies. Tbet
Dawson, Forseith, May, Bishop, Lewis, sal
Sparkes, were brought to the bar, and tfaei^
indictment was read.
Joseph Dawson confessed that he wis'
Guilty ; but the rest pleaded Not Guilty, mi
put themselves upon their trials; and there-
upon the petty jury was called, and thejperMi
whose names. follow were sworn: WilliMi
Walker, John Child, Edward Leeds, Thoostf
Clarke, Nathan Green, Henry HherbroolK
Benjamin Dry, John Sherbrooke, Samim
Jackson, Thomas Emms, Henry Hoonri
John Hall.
Then the King's Learned Counsel opeDrf
the Indictment, -^c. and
Dr. teuton made a Speech, which is M
follows :
?Jy I^rd, and Gentlemen of the Jmy;
The prisoners arc indicted for piracy, in leb*
hing and plundering the ship Gunsway, bdsMp
iug to the Gn at Mogul and his sulyeby^iBVpT
Indian iscm >, to a very great value. i
4SS] for Fdoty and Piracy.
And the end wu taitable to their btgin-
m'n^; tbey first pnctised these crimes upoD
Iheir own coantrymen, the English, and then
continued them on to strang^ers and I'ureignera:
For the ship in which this piracy was coin-
mitted, was an Eof^lish ▼essel, called the
Charles the Second, belonging to se?eral mer-
chants of this city, designed for other ends, and
a iv different voyage, which by these crimi-
nals, with the assistance of one Every, their
captain in all those villainies, was seized near
the Groyne in Spain, in May .1694, from which
place, having first, bv force, set captain Gibsoci
tlie commander on snore, Ihev oarrieil off the
ship, and with it committcu many and great
piracies Ibr several years (as will appear in the
course of the evitlence) in most of tlic parts of
the known world, without distinction, u|)on all
■atioDs, and persons of all religions.
Their last Jiiracy was this in the Indies, the
greatest in itself, and lit^e to be the most perni-
cious in its coiisef|ueuces, especially as tu trade^
considering the power of the Great Mogul, and
the natuiml inclination of the Indians to re-
veojge : But thev are now brought hither ou
their trial, and, it the niatters they are charged
with shall he proved, to receive that jud^ent
from you their crime deserves; and tliut h
piracy, which by so much exceeds tliei't or
robbery at land, as the interest and concerns
of kingdoms and nations are above those of
private families, or particular persons: For
suffer pirates, and the commerce of the world
must cease, which this nation has deservedly
so great a share in, and reaps such mighty
advaotaffe by: And if they shall go away
uopunisned, when it is known whose subjects
they are, the consequence may be, to involve
the nations concerned in war anti blood, to the
deatmction of the innocent English in those
oouatries, tlie total loss of tlie Indian trade,
and thereby the impoverishment of this king-
dom.
The Witnesses for the king, viz. John Dan
and Philip Middleton, were then called and
aworn, and in the opinion of the court ga\e a
full evidence against the prisoners, which was
very clearly summed up by the lui-d chief jus-
tice Holt ; the tenour whereof is particularly
■et forth in the following Trials ; but the jurv,
oootnury (o the ex|iectation of the court, brought
in all the prisoners Not Guilty ; whereupon the
sessions was ailjouraed to Saturday the '^Vai of
October following, and the priKoners were com-
mitted upon a new warraut for several other
piracies,
October ^\y 1006.
The Court being sat (at which were present
iir Charles Hedges, jtid^e of the high court of
Admiralty, the lord chief justice Holt, the lord
chief justice Treby, the lord chief bamn Ward,
Mr. justice Itokeby, Mr. justice Turton, Mr.
justice Eyre, Mr. luiron Puwis, Dr. Lane, Dr.
King, and X)r, Cook), the court proceeded in
thisuunoer.
A. D. 1696. [45i
CI, ofAf* Cryer, make prochimation.
Crycr. O yes, O yes, O yes. All manner of
persons that liave any thing more to do at this
sessions, draw near and give your attendance :
and you sheriffs of the city of London, return
the several precepts directed to you, and
returnable here this day, upuu pain and peril
that shall follow thereon.
Then the grand Jury were called over, and
the appearances marked.
CL ofAr, Make proclamation.
Crifcr, O Yes, &c. The lonls the king's jus*
tices charge and command all persous to keep
silence while the cliargc is giving.
Sir C'Aar/es Hed^et^the Judge of the Ad-
miralty, said to the Grand Jury upon this
occasion :
Gentlemen of the Grand Jury;
The opinion which this court had of the
good intcntionfi, abilities, and integrity of the
last Graufl Jury was so fully answered at our
late meeting in this place, that 1 am confident
all good Englishmen, who were witnesses of
their proceedings, will concur in giving them
public thanks for the good services which they
then performed : I wish that all others, who
were concerni^ in the dispatch of that day*s
business, had the like preu>ncc to have the
same; the public Justice of the nation would
not then have lam under any manner of
reproach, neither would you have h:id this far-
ther trouble. But seeing that it hath so hap-
pened, it is become ulisulutely necessary that a
farther and a strict enquiry should be made
after those crimes which threaten, and tend to
the destruction of our navigation and trade ;
anil therefore I am assured of your patience,
whilst I shew you briefly :
1. What the crimes are, which you are to
enquire after.
if. How far the jurisiliction and your power
in making these enquiries doth extend.
3. What is the duty incumbent on yon io
Ibis behalf.
1. As to the crimes, I shall not repeat what
was mentioned touching all the particulara
thereof, at the o|)ening of this se»isioiis ; hut
cootine my iliscourse to those, \«hich I lind by
the calendar will, at this time, necessarily fall
imder your exaniinatiou ; and those are lura-
cies.
Now piracy is only a sea- term for robbery,
piracy being a robhery coiniuittetl within the
juriKdiction of the Admiralty. If any man be
assaulted within that jurisdiction, and his ship
or gfNKJs violently taken away without legal
authority, this is robbery and piracy. If the
inariiiers of any ship sli'ull violfiitly'disposiess
the master, and atienvanls carry a\%ay the
^hip itself, or any of the ^(nmIs, or tackle,
nppaivl or furniture, with a f'eituiious intention,
lu any place whore the lord Adininil hath, or
pretends to havejuri»diction, this is also ruhbery
and piracy. The intention will, in these cases^
appeiu: by coosidaring the eud for whieh tlie
455]
8 WILLIAM m.
fact was committed ; and the end will be known,
if the evidence shall shew you what hath been
done.
9. Now the jiirisiliction of the admiralty is
declared aDU described in the statute and com-
luisaiou, by virtue of which we here meet, and
M estendcMl throughout all sees, ami tlie porta,
havens, creeks, and rivere lieneath the first
bridges next the sea, even unto the higher
water- mark.
The king of England hath not only an em-
pire and sovereignty over the British seaa, but
also an undoubted jurisdiction and power, in
concurrency with other |»rtneca and states, for
the punishment of all piracies and robberiea at
aea, in the most remote parts of the world ; so
that if any person whatsoever, native or fo-
reigner, Christian or Infidel, Turk or Pagan,
wiUi whose country we have no war, with
whom we hold trade and correspondence, and
are in amity, shall be robbed or spoiled in the
Narrow Seas, the Mediterranean, Atlantic,
Southern, or any other seas, or the branches
thereof, either on this or the other side of the
line, it is piracy within the limits of yoqr en-
quiry, and the cogoiaance of this court.
3. Conoerningthe duty incumlient upon you
in making yonr enquiries and presentments,
you may consider that there is a great trust
and autliority committed to yon ; and there-
fore it will Be expected that a suitable care
fhould be had, and your power executed ac-
cording to a well-regulated discretion ; as you
•re, on the one hand, to take care that the court
te not troubled, nor any man put in haznrd of
is life, through any frivolous, or malicious
prosecution ; so, on the other side, and more
esiieciahy in the cases of great and public
offences, you are to use your utmost endeavours
that justice, tlu^ support uf government, be not
obstructCNt by any partial proceedings.
You are not obliij^cd in all cases to require a
rlear and full evidence, but only to examine
till yuu fnul, and arc satisfied m Y<^ur con-
sciences, that there is sufficient and just cause
to put the pany accused upon his trial. You
cannot ciHiviet,* but may in effect acquit the
greaU*st criminiils ; amr therefore, if you do
but find pi oofs enough to Ci'eatc a presump-
tion against the parly accused, when the case
seems mlinus, and is of great consequence and
importance, your safest way is to put.it in a
pro|)er mrthod for the i>clty jury, who arc to
mceive full satisf'uction from the evidence that
■hall be jriven in the presence of the {tarty ; and
according to that evidence, have i»ower to de-
termine whether guilty, or nut guilty, con-
demn, as well as acquit.
And UfKin this occasion, seeing many who
are upon that scrv ico are present, it seems fit
that they should also know that tliey have no
power to'do more or le»s than what is agreeable
to the eviilence : they are not to inter|Kh»e in
Soints of law, or to be swayed by any cotiKi-
eraii«»n « hatsiiever, but « hat shall at we from
the proofs ju iciallv made ; they are indeed
judges ot th« tiu;t, but they are not arbitrary ;
[4M
Trid of Joseph DaWion and othen^
they are as much restrained by the i
conscience, informed and -ooiivinoM oy na-
sonable proola, as thejudgeaantlieliaMhart
by the rules of law.
No man can believe just ai he Hals ; woi
therefore a determination, or jndgmeiit at will
and pleasure, will never be thought to de<
aervo the name of a verdict i Ibr
may be pretended, the world will not be por^
tuaded that a jury hath punned thedidalael
conscience, unless some leaaoaable gioidi
for its proceedings ahalianpears andthauiwn
whenever itahallhapiien tnat nomnons naaUftai
ton escape unpunished, notwtthatandiaf thai
in the opinion of moat good men there tvat %
full and sufficient evidence tor their conTictioai
it is to be wished, and indeed it iccaaa to ne li
be neoessary, in cases that retete to the lawf
of nati<»ni,*that the reasons which iadueed
such a determination, sliould be given Ibr Ihf
[kublic satisfaction ; otherwise, since fbrogacn
ook upon the decrees of oftr courts of juMies
as the sense and judgment of the whole ast
tion, our enemies will be glad to find an ecoi-
sion to say, that such miscreants a« aie ootsf
the protection of alt laws, and civil govtin-
Dient, are abetted by those who contend M
the sovereignty of the seas. The baibaraii
nations will reproach ns as being % haibmn^
receptacle, and a nest of uirates } and Sif
friends will wonder to hear that the cnesBisBif
merchants and of mankind, should' And asaae-
tuary in this ancient place of trade. Nay,-«t
ourwlves cannot but confess, that aU lasf*
donis and countries who have suffered by Eof •
lisli pirates, may, for want of redress in las
ordinary course, have the pretence of jnstics^
and the colour of the laws of nations to justify
their making rei»ri»ils upon our merehaol^
wheresoever they shall meet them upon ths
seas, if a jury happens in tliese cases In It
too severe, tlicre is room for mercy, and 1 lA
confident, that, upon a just rejiresentation, lbs
innocent never failed of obtaining it ; but fbr
a fault, neglect, or error on the other haoli
there is no relief tor injured fbreigiierB, bat hj
their carving out, as wc may be sure they wit
fur themselves, such a satisfaction, upon oar
Lici'chauts, as they shall think fit, wheneW
they shall have an oppoituuity ; and so oar
whole nation must unavoidably suffer botbil
reputation and interest, and all as it ^
through our own default.
I hoi>e what hath been said upon this
pccted occasion, will not be looked upon as ii*
tended to influence any jury ; I am sure it ii
far fix)m being so designed : religion, oonsci'
cncp, honour, common honesty, humamtft
and all laws, furiiid such methods : there is pi
d.*ubt but the judge, as well as the jiiry«B%
then bf>st disch;iiges his duty, when he pia^
ce«'ds without favour or affection, hatred or Hr
will, or any partial respect whatsoever.
Kver} Iran oui;ht to be eximnely tented
such a ^>erson as lie has reason to Urtieve is in^
uoceat ; but it sliouhl be considered
on the other side, that he who briaga a lili'
He, nr eammoii malefactor to justice,
es to the safdv ami preserration of
of many, both bad aoa good ; of the
r meana of the aaturance of protec-
of the had too, by the terror of jua-
was upon thia coDsideratioii that the
eraperora hi then- edicts made this
aerrice for the public fooA, as meri-
I aov act of piety, or rehgious worship.
WB favra demonstrate how much our
■a, and partkuhiriy how highly that
iooe king Henry the fif^h, and his
fit, thougnt this nation concerned in
j^ fbr the aecarity of traders, and acour-
Mus ofroreraandfinee-booters. Cer«
ere perer was any age wherein oar
I were not extraordinary sealous in
r, looking upon it, as it is, and ever
the Gfaief support of the narieation,
eahh, atrength, reputation, and gk>ry
ition.
mnen, our concern, as our trade is,
reaaoii to be rather greater than that
ire- fathers; we want no manner of
ents, no motif es to stir us up, whether
iler onr interest or honour ; we hare
the sacred word, but also the glorious
he best of kings, which sufficiently
to us, that the good and safety of
w is tlie greatest care of his lite. Let
lan, therefore, who pretemis to any
a true English spirit, readily, cheer-.
Ilow 80 good, so great, so excellent an
, by assisting and contributing, to the
»f bis power and capacity, at all times
the carrying on bis noble and generoua
For the common good, and particularly
tintie, by doing all that be can, to the
by the administratran of equal justice,
pline of the seas, on which the good
ly of this nation entirely depends, may
fted and maintained.
the Witnesses being aworn in court,
od Jury withdrew to hear their evi-
and in the mean time T. Vaughau,* J.
y, and Tim. Brenain, were arraigued,
iie keeper of Newgate, by order,
to the bar.
Jr. T. Vanghan, Hold up thy hand.
he did.) Thou standest indicted, ike,
I Guilty fif thb higli treason whereof
odest indicted or Not Guilty f
han. Not Guilty.
Ar. Culprit, How wilt thou be tried ?
bii. hj God and this country.
'4r. God send thee a good dcliver-
'Ar. J. Mnnihey, Hobi up thy hand.
he dkl.) Thou standest indicted, &c.
lyeat thoa, J. Murphpy, Art thou
N the high- treason whereof thou stand-
iicd, or Not Gnilty ?
tkev* Not Guilty
A. D. 1606. [1!»
Mmrphey, By God and the king.
Officer, You must say, By God and my
country.
CL tf Ar» God send thee a good deli? er>
Ar H
low wilt thou he tried ?
Far his Trial see the Deaa Gate*
CL €f Ar. Bring Tim. Brenain to the bar.
(Who waa broiight accordingly.)
CI. tf Ar. Tim. Brenain, Hare you any
copy of your indictment P— Brenam. Yea.
C/. ofAr. When had you it ?
Brenain. This day se'nnight.
CL of Ar. Tim. Brenam, Hold np thy
hand. fWhich he did.) Thou standest indioted^
&c. How sayest thou. Art thou Guilty of th«
high treason whereof thou standest indicted, ot
Not Guilty P— Brenain. Not Guilty.
CL qflr. How wilt thou be tried P
Brenain- By God and my country.
CL tfAr. God send thee a good delirar-
ance.
Mr. Mompetmn. Will your tordahips please
that he may be tried now r
L.C. J. Treby. Does he desire to be tried
now?
Mr. Mompetson. Yes, my lord ; there is m
evidence against him, and he is sick.
SoL Gen. We ai« not now prepared for tha
trial.
L. C. J. Trebff. If the king'a counsel and
the prisoner he agreed, with all my heart.
L. C. J. Hoit. He may be tried with the
rest.
Then T. Vaugban, J. Murphey, and T.
Brenain had notice to prepare for their triak
on Friday next, at two of the clock in the
afternoon.
Tben the Grand Jury came into Court.
CL rfAr. Gentlemen of the grand jury^
arc you agreetl in your bills ?
Grand Jury, Ye«.
CL of Ar, Billa vera against Joseph Daw-
son, Ell. Forseith, W. Alay, W. Butbop, J.
Lewis, and J. Sparkes, for piracy and robbery.
CL of Ar, Keei>ci' of Newgate, set Joseph
Dawson, Ed. Forseith, Will. May, Will.
Bishop, Will. Lewis, nnd J. N|iarkes, to the
bur. (Which was done accordinj'ly.)
CL of Ar. Joseph Dawtou, Hold up thy
hand, (which he did). Ed. Forseith, Hold up
thy hand, (which lie did). W. May, Holtl up
thy hand, (which he did). W. Bishop, Hold
ui» thy hund, (which he did). James Lewis,
Hold up thy hand, (which he did). Jo. Sparkes,
Hold up thy hand, (which he did).
Then the Indictment was reail, and set forth:
" That Ilcnrv Every, alias Bridgman, Jo-
seph Da'.% son, I^dward Forseith, William May,
Williaiii Bishop, James Lewis, and John
Sparkes, latp oi' London, mariners, on the 30th
of May, in the 6tli year of the reign of our so-
vereign lord kiu*;^ \\ iliiam, and the late queen,
did, against the |>eace of God, and our said ao-
vcreigii lord the king that now is, and the late
c|ueen, by force of arms, u|ion the high and
opea teas, uk a certaia piftce, about three
4jP'
5 TTILLIAM III.
> 1
■■»4
. :•: : .c ihitrles ihe Svcon^l,
.. .-.v^ I or-lnanre, belontriny to
.•:::* .r me sai.l kin'j. ami the late
* :• _c-^T> a<» Vfl iinkno\«ii); ami
: -v |ut li:i- Kaiil (liaHos (iiiisoii in
' v»r hts lite : ami then ami iherr,
hi •» ^ii;..i:i atWrcsaiil, f'eionloiisly
..CA \ *\.>\ jtra!, lake ami carry airaV
>.i.u 1 !.a:it-!» tiih<oii the said ship,
iL. 4-.'. '.'^t i'h.irio iht Si'cuml, her tackle, an-
,* nf .. ar.ii t'u;niii:re, of the valm? of 1,000/. ;
.- .<c^> ot « iiiiianee, of the value of 500/. ;
/O fust'CJ. vt' the value «if 10*)/. ; 15 ton of
. ta<, of tui- valuf of i:»0/., ami 2(»0 pair of
v\4<Uen stockinus of the lalue of 10/., in the
K>ssi>s;ou of the said Charles Gihsnn then
t«ui^; the lihip, i^ouds, utid chattels of the
tihjccts of our haid soveirig^n lortl the king",
Old the late queen, (lo the jurors unknown)
k*:.\tust the peace of our said Koverei;fn lord the
h.in^. and the late queen, and dijrnitits, ^c."
How sayest thou, Joseph Dauson, Art thou
r«uiltv of this piracy and i-obhcry, or Not
J u illy i*
ViitSim. 1 am i*;norant of the proceedingf;.
ihfu't'r. lie pli'ads ipfuorance.
(Y of Jr. \ou must plead Guilty or Not
iuilty. — Dauxrn. Uuilty.
CI. of' Ar. IIo\vsa\e'st thou, Ed. Forscith,
11'! thou (iuilty, or Not (iuiliy :*
Fojstiifi. Not CfU;t(y.
il. of Ar. ll«»u- uilt thou he tiifd ?
Fornith. iJy Uw\ ami m\ country.
(7. of Af. Iloiv siiyest tllou, Wilf. 3Iay, arl
hou Ciuiiiv, or Not Cjuilty ?
Jlf»;v- N«'t Guilty.
{'I. of Ar. I low snyi'st thou, W. Kisjtop,
\\ thou (ini!i\, or Not (iuihy ■'
/•..^.' 1. 1 disiH' tt» 111 ar lIk; >\liole indiel-
iit ill ii-.iil a- t.u.
t I .1 .'i 4 ^ t»u hive luvMil ir just iio-.v,
..• % I :i ii ■■•.;. iiu if \ou d«viit' it.
I h ■ lii.iii« I iii.Ik tun lit.
\ \ • .' ■ Nil, iIh ii* IV nil oiM'asliMi t'-r
t > I' I M I'.t iiiu lit lor :i S.'.el (ii .i.iiil
[460
clay, to try between our so?erei^ Ior«l thekiti<;
anil prironers at the bar, answer to yourDameK
as you are callcti, ami save your ixsues.
CI. of Ar. Jo. De«^ave, licfijamin llalley,
Jo. Ayres, &c.
L. C. J. Holt. Have you any of the former
Trial of Joseph Datcson and others^
•"}"re. i>i %iithin the ju-
'i.'\ i't England, pirati-
• < : i.p«-n one i'harU'S
." ^1.1 soier«'|fn lonl the
. ••: i*:ic late qiicen, lieing*
*:»K-r of a certain mrr-
\:
: IN » II-
. .li\
N.lt
\ '. (.Ol
jury in this pannel ? — CV. ofAr. Ye^, my l»rd.
Counsellor Conycrs. We shall except i^Qicst
thciu i'or the kin^.
L. G. J. lIa.U. If you Imve rrtiimcd any of
the former jury, you have not ilone well; for
that verdict was "a dishonour to the justice o!
the nation.
C7. of Ar. You, the prisoniTS at the liar,
these men you hi^ar called, are to pass I;etweea
our »»overcin^n lord the kin^, and you ; if there-
fore you ivill challenge any of them, you are
to crialleucre them as they cotne to the tK>ok to
be sworn, and before they are sworn.
Then they were called over, and somebeinjjr
challen|;ifed tor th«j king", aud some by the pri-
.toners, the persons sworn in this jury were
these: J. Dcgrave, J. A}Tes, G. Broom, T.
Hicks, U. Meakins, J. Shelswell, AIe.\. IVi«
liiitou, J. Glover, Nath. Carpenter, Jo. Bicklcy,
Nath. Troughton, ilura. hSouth.
C/. of Ar. 31ake Proclamation.
Cn/cr, O Yes, H' any one can inform my
lords, the kin^-^s justices, the kin^^s serjcant,
tho kinir^s attorney general, or his majesty-s
advocate in his high court of aduiiralty, before
this impicst be taken, of the piracy and rob-
liery whereof the prisoners at the bar stand in-
dieted, let them come foi-th and they shall be
heard, for the prisoners stand at the bar Ujion
their deliveraiiee ; and all others may depart.
'1 lieu the Grand Jury eainc into court
a^aiu, havin:^ lound tuo other bills nt^ain^t
the pri.'ium.rs at the bar, one for piratically
takill^- away a 3loiirish ship, ami another fur
eoniiiiitting pirary on two .ships belonging to
IKniiiask. Ami thru the Grand Jur^ was
:.«lionnied to I'riday next.
(V. if Ar. Ell. KorM-ilh, hohl up thy hand.
(Ami N'l (d* I he n'>t.) ^ on that are sworn, look
upon the jirisoiiers, ami hearken lo their cause;
tin y ^1alld indsried, N.e.
r»ir. ]\'/fiitih:r. 3la\ it phase your lordships,
ar.d \on i»i'::lli r.ien of the jury, the [)nsouersat
l\\i' Uav sl.'inil i.Mtlieled tor iVlony and piraev, for
tiiai they, aUnt ihe 'oi'iU of .May, in the Gth
! \e;'.r ol th.' ri-i^n of his presmt uiaj(.>siy kin|f
.% 1. ••!;•-; ui-nt, not ihe ; W i!!i-:M, did make an hshiiuU on eaptain Gib-
\ ot iiii^ I'ii.iev and ! 'oon. eoniniandfr of the sliip CharleN the iSe-
/• ..^ . \«!i (iiult) . ! (oi.il, unil put him in I'ear oi his lite, and pira-
I ili.ui. James Le..4S, , \.r.i\\\ .sU»k; away the ship and all the furoi-
MiU\ ? ; tnii-; anil this is laiti to he a^ain^-t tlieir duly
I and ;:ll.-^iaucc, and a;4ain.>t the pi-aei* of our
SpaiKcs, soveni^n lord tin- kini;, hi** erown and dignity ;
I ihoii, J
il.Mi he tiuti!' [As of
■ •\ ^.'Uiiliy.
I. . 1 ;«%»d driiveranee.
> .i ;.*«il iix n of the
. *». . ■ .ii' u-ar hcic this
I to uliich iudielnnnt lluv ha\c |dc-uded not
j guilty. A\ e shall go on to call »»ur \\itues^es,
' and prove the eharofe against the prisoners at
the bar, and doubt not but a ou w ill do your
dnry. Then
Dr. LiitUton^ .Ailvocate General to his roa-
jc>.ty, in his High Court of Aduiiralty, spakft
I as tbilows:
firTPthmy and Pirdcgk
:men of the jury ; Yoa hsfe heard
ctnavDt opened, and we shall now call
lenea, who will relate to you what
s and horrid crimes the prisoners at the
' committed in the prosecution of the
in the indictment : Crimes, that the
iition, had they not taken effect, would
erited the hiiniest punishment: But
it their case. For they were not disap-
yf their wicked lusts and desires ; ior
crimes are ffrcat, so have they been
uate as well as voluntary and mali-
I may well say, that their wickedness
I as boundless and as merciless as the
upon which their crimes have been
xtl ; nor is there any part of the world
ih nut been sensible of their ra^ and
y — Hieiefbre, Gentlemen, as you are
fchrisiiauity, as you are lovers of ho-
uay, as you are lovers of yoursflves,
ir the cl/arurter of honest men, if we
ills charge ai^^inst the prisoners, vou
d ought to find them guilty, rememuer-
t the doing justice upon wicked and
le men, is tiie greatest mercy and pro-
to the good and lionest. We shall
e proceed to call our witnesses, not
* but that yon will act like honest men,
honour and welfare of your country,
having §ny respect to the dishonourable
ings of the former jury.
mUaker. Call J. Graret. (He ap-
and was sworn.) Let him stand up.
ten. (Sir John Ifawles.) Mr. Gravet,
iU j'ou give my lords and the jury an
ot what you know of the prisoners
away with the ship Charles the Second.
et, 1 was second mate in tlie ship at
e. There was violent hands laid on
was sei7xd, and a pistol clapped to my
md cnrrietl away.
Jen. Who did it? Begin before.
et. I was seizeil by the carpenter of
I ; be took me by the throat, and clap-
stol to my breast.
J. Trtbjf. Begin where the ship was
J. Holt, You was a mate in this ship :
ray give an account of the whole
et, I was upon my watch upon the
ners. Pray speak up.
tt. And there was a boat came from
les Galley, with people in her : And as
the btiat came, the carpenter seized
took iiic by the thn>at, clapped a pistol
iiid suid, if 1 resisted I was a dead man.
<ik me, one by one arm, and another
tther, and led me to my cabin, and one
rfstol *it(KNl at my cabin dunr, till they
«t two ItugUf^ wiihout the Groyne,
very came to speak to captain Gibson,
iH tlicu sick, and was guarfle«l on both
uid when he had done speaking with
(I was returned from captain Gil»soii,
to uw again, and said, I suppose you
I
. A. D. 1696. [46S
do not intend to go with us ; 1 said, 1 would
not. Then I, and the rest that would not go
with them, had liberty to go ashore; and I
would have gone to my coffer, and taken my
cloihes, buttney would not let me; and told
me I should carry no more than the clothes on
my back.
'Soi, Gen. Did any of the prisoners at the
bar say so ?
Graret. That I cannot tell.
Mr. Confers. Then go on.
Gravet.^ Then I went to Every, and I had
some of my clothes ; he was so kind to piv«
me them : lie gave me a a coat and waistcoat,
and his commission that he le(\ behind hint$
and W. May took me by the hand, and wished
me well home, and bid me remember him to
his wife.
Mr. Conyers. W^as there lilierty for any of
them that wouM, to go ashore ?
Gravet, Captain Gibson told me so, and
there were about seventeen went off.
Mr. Conyers. No matter what captain Gib-
son told you ; you say you went off: Might
any one that would, go ?
Gravet, That I cannot tell.
Mr. Conyers, You say there was about
seventeen \ient off: Would the boat hold
more ? — Gravel. Yes, Sir.
Mr. Cowper. Did you see any hindered that
would have gone off? Were any of the pri-
soners at the bur there ? — Gravet. No.
Sol, Gen. Do you know £. Forseith, Sec, P
Gravel. I know some of them.
Mr. Conyers, Name tlie men that you say
you know.
Gravtt, Joseph Dawson, W. May, J.
Sparkes.
Sol. Gen, They belonged to what ship?
Gravet. To the Charles.
Mr. Conyers. Was there not a boat came
from the ship James, before you went away P
Was there any of the prisoners at the bar that
came in that boat ?
Gravet, There were' about twenty six that
we had account of.
Air. Conyers. From what ship did they
comci* — Gravet. From the James.
Mr. Conyers, Were any of the prisoners at
the bar any of them :'
Gravet.' lude€d,.Sir, I cannot toll.
CI. qt'Arr. Call T. Druit. (Who appcaretl,
and was swoni.)
Sol. Gen. Mr. Druit, was yon aboard the
ship (ca1le4l the Charles the Second) when she
was carried away ? — Druit, No, Sir.
Sol, Gen. Do you know any thing of the
carryinj^ of that ship away ?
limit. 1 was noi in that ship ; I was mat*
of the James; and ab«)ut nine came one from
alK)ard the C harks the Second, and asked me
for tlic driuiken boatswain? Aiiti 1 replied
Khort ; II nd he went away airuin, and said tlie
ship was tn»int; ti» In? run away vi ithal. Where-
n|ion I went with ton men to recovir the ship;
and at\er I had ad\is(nl with the commander, 1
ordered the pinuucc to be mauacd \ aud when
8 WIlLI AM IlL trial efJwfh A<ia«m and ntiirit
4d9]
I »Bie, Uie kst that nenl inU) Ike U<Vftt wm
Pike ; tml I bid lUem put bai^k, and they
[ ^oald ooif but waai •wr«y to i\w niitf) Ctmries.
Ur. Coftyrrh How msny were there thtU
iv«tit fti»ay in that boat f
Drttii. About fire and twenty*
Mr. (^nytrt. Did jou know all the meti f
Were Any of ll>e pc laonerv at the bar there ?
I^ook on them*
Druit, Yea, my lonl, llitre was E. Forseithi
W. Biwhop^und J. l^wui.
L. C. J. Ho//. What boat did ihey go tlVray
irhh ? the Jamea boat f^ Vftiit, Vea^ ray lord.
. ht.CJ,Ji*ili. Then thi-y came from ihc
Jlaiiic« to the Charles the Sec<md ? Nattit* their
tttm^ agaio.
Druit, Ed. FofBeitb, /a. Lewii, ami Wm-
Bwhop.
SvL Gen, You saw them go off, did you not?
Druit. It was ao dark that we could oot
tee theni*
Mr. Coufitr, Were these three ineo lent ?
Druii, They were <eiit.
Mr. Coteper. Or did they fo of thetr own
^fceadf
DruH, No, I do iMl tay sa i but 1 went to
eonmiaod Ihetn b«ick ag'fiin^ and Ihey refuaeiL
Mr. Cotiutr, Did ttiey make answer ?
I>riiiV. No ; Ihey only went away damning
and tinktrig.
Mr. Coi^en, Were there any gmu aent
niter them f^Druti, Ye».
Mr. Cotuftrt. What was tt fw ?
Drtiit. It wati tu bring I hem Iwck again.
Mr. Cmcper, Aud they would uotcome hack f
Ihutt. They did not come.
Mr. Cowpir, Tbfe^n ih«'y wouM nut come*
C/. t/ Jr. Call Daf id Crcagh, [Who was
iwom.j
Frmner, Ttiti man it a {irtaoner for piracy »
L. C.'j. Holt, What if he be ?
J'ruanrr. 1 do Dot uuderstaad law ; I hope
Jrour lordshi|i will advise u».
L. C. J. UoiL 1 wdl do you all rl^ht. IH^e
be so, that is do ohjei'tion n^inist hioi ; he may
lie a good wilue^ tor ull thut.
Ct, qfAr. He is n*»t a prisoner for piracy,
tuit for 1 reason,
L. C J- Holt. Though he he a prisfoner for
treason, he ia not attaii)ti*d. What is his ftame ?
CLvf'Ar. DavikI Cr«-»ub.
Sal.Otn, Whut do you know about the pru
goncni running away with iht* ship C>harle«?
Crwamh. l^pou ttie nb of lUnVt lO^i. I came
' to the Groyue, in eouipaoy witfi the boatcwain
MiH actetal athm, on board the t!h»rleti ; and
' %bai I was goin^ in to the? cu plain of the
trmi.ti Mr V
very.
I Cknlio, eaptain Qibaoft, 1 fri
^ibcoiipMtMr, umA ioiM ntliora
r4dpmdk I aad alUr I ««i coui
tain, 1 came and sat down with thctUi and IVfr.
If^y drank a health to tha Mf^a, and pro-
tfiefity (o tlieir foyag« i and wi* not koowbfr
ihau dc^Kn tiiaa, tkaaf hi it wa» to our lawful
tipiaiifif and fiiaifariiy I* lb* ^«'Pif« fa* was
Citii^k. Ii w»*t I ni-jh !tim*i AfH
afkerwardtf the com :
and went to their r
in our cahtus, we
deck; and captiir
manded the ^'a\*-
men were nm
meii ,■ - ,.
of mv cahm !«» tKfe v
met by Ever\% tit
ftieu \ nod tti'
mv»-''il>m. ^
L. C. J. l^Wf. What is th«
tkiat?
Crtit^h, That ls» to «l
her. So Even lc»ok »ne ir
me tf t would |$:o with hitn ? And I i
I did not know hm df^i^ii* tie i
wer« but few that knew jt, Mavs I, "
who do kuow it, fhnt if you w»ll not
vouiftelf, I mfls ■' ''i.'-..i I'l M ;■ ,■ 1 ! It
lie said, we i
be too Tate to repent of t
penterftlofvd by liim, aiiii r,.*,
xU'xi, cockt^ Yes« ioiyit 1^ I di> <«
mail, and old Mm au.1 K
with any ths*
giftiive, Slid t>i
fiU[ipoi»e tliey knuw yr»ur di*?ti4(ri. ^ r«» i
lie, they do ; »iid if it were a ihin^ of tun I
tite eot)sri|ue]]ee, thry lihoutd know if. CJ^
ihiii, lilt; carpenter cutne to titf", and mM, i
you do not fifo down, I sm "
nead. Ana a^ I wtis g*
W. Msy ''i' I -i'ticr ai u.'
you do \\ \\v, 1 M
im'»»r, luii .». .^ " t '■ .
Cioil dumit y<<
the hertd ; ami
Then I wetit to nn
orders t'ro*u E*ei \ ,_ i
ashore, should pre|Kif r lu he j;nn«. And \
the captain wasi jjrni out of ht^J, whf» was I
rery ill of a feve<\ I
niunDfroftune,au4t •
CJi[»tain (tilwoOf 1 v
time. Sitys* he, \\
shall still'
son« I n
me so, \\\..r .;.. v ^ . A .. ..
U\ cri> on u des)|fo again >'
will not do it* Theo, Ji^»;,
gti atihMre. Upon which' ih*
Teral olhori of usi went into 1 1
we were by the ahip'^ bide, I hrar4 (
tlm doctor i<» be secured ; hut if there «ial
mon would ifo into the haat, tl*ey ittiglil;
W« mmi iiita the boat, la Ilia tty|»bai if I
L ' vf- VVbrrrdiil lie K^ ?o(i f
illi' I'riMti fill* exjwiliiitTti
Mr. ^Wibcw, VVua. tli-^' ntiv mora f<»f mwe
in ihe t«fi«t?^tVr »>?/*, ^ ^.a.t,
^ (III ycm tmw ai llit* pri-
I :.iiim oiilv W, 'VI ay*
^1 , ' Whdi tim« i^i'tt iri»nt the cnni-
[ tm^ »*i I tic 6»mt» l<» llic tmir ot v*Hrr {fomg oUT
^"*'Hr. CuP^i*r. Wan llicri* iiny gunn fir*?^! in
J tlTIM? f
Co A-^A. Y I'M* Sir, owK or n% 0 from the J am es,
^y i:.»|itAio llixrii|»1iirrj%,
^1 .'. VVm tliii Jone tn (be t>lii(i
wii' , <h wiH ihttv iiuj^ n|jf(*rir, or o|>-
C>«Oj|&. Nor iherc cDiiftI be tl« oppfTHhjOti |
a Oil carno ujiaii us, atitl mirp* t/^tl n*, lunn^ 4**
mat«4 h> thyv^ lb At bnliin^td to tlj€ (Jh^irtrn*
Mr- C«»^/it'r. Bui 'ii*l tirt^»it«Iy mrtk*Mtpjio-
I*, r J, /ffi/r* 0al Vi« \*^ml iwUoMf
CfOi^k, Yes, t«v Wrd,
Cftugh. N«, my UjwI, iion© but tlic tJtjcior,
Soi^Cm* Now oill J^K l>iiu* LWbo up-
II . Wtiat :ibip Witre yc^ti ftlt^rd
Mr. Ci>m/rru N«w^ V^y* K*vc my lorfl nod
mAw juri' &(i iiccrtunl wbtil you kaow ot the
ill Mr hut uaHtirill |tiJt>{f^«
a^H. \ M, Htr : We cmmt to the Groyne,
[ 8Dii Uml Kt:rn Itif^rif db«viit lUr«f^ or liiur rriiintby,
fiiud \\t^ U*<\ hti't'ii ft bo It t pi<r1i4( mujythK out uf
I Ei^l»utl» and wti hy fijrtaif i'^ 1 ih<^r<^
» iis9 no m»i;e^ U* h^ ^<yL Bin n3 iv«;
ui^bt,
,.. . ■ -■■!
^ i»bi*ii tli«fy Cm" 11
t'pnvj In It, Ulr ! . '
[%hty ihihm'iw:, 1 Uimk. ihr piekct Wi*nt out Iq
LonkTi'il tf> yit«» ftoiit**; «n«l ihry eam?? to lb«*
■ lJ*iH*i »Qil *i!*f'iii nint- r^r i<p brr hoax bttikv^ o&\
. ^li she txAlM itit ; far lU^iy tt^M ca|il.iiM Bum*
|p|tn<y» thcv w^u' {.^^tmiii]^ tn rtiri a^iiy ^iib
I fHir Utifi* %t hu bctlfjt tUv Jtiiut-^ ; au4 prt*'
utiy irtJin< tit* (b»! iitHov* ri\mt imd tjnJer-
it nil ff l»rfi iluy i^iivc Uu'i orJ^^tj thi^raiUfti
TOUXllL
160A [4M
Br«fyAiid^5 or sd mm. Ant! a« Oiey came
ii1i4mnl,oi]rmM€« wen? €*ul, am! irmly Ut ^a.
And «ifuinf utiilr^r tbr cartile^ iv« cttt ult tii&
!H>»tH but two^ iinJ isiood 4)ut tt> stii sibuut itva
or thrre leagu«« ; nnd l!>eii^ Bvfry wt'iit lt>
ptptuio UibsffU, mid^ ns iVicy s:iit1, to Ask hitn
if be wouhl gri tfi thetUi m* not. H« sau), no*
Tkivfn hf. len^i^ be must j>rc|mri* l'> go astmr^ j
u»il Ji« did »a, a ltd fteverfil uibc^m viiih lum;
4tid ibv wurd wuji grivrn aibout^ that ihc^y tbut
WoiiblHlo :iMhi*re ifii|jbl gio ; but wli**llier lb<f»e
tncsn bctud Um itt», t raiittot tvU 7 nndtto man*ft
riauit: ^Ei!t iucniiori<*d 10 !>« sii>pfie<l, but tba
iWtftr. And wberi ibty wi^iir u^ay, ibey
critd^ tbi'ni viaA water in tb^ b<*jit, atnriUey tU>
wired tt bucket ^t' m, to benv^j it furcf, unt\ wn
gave tbetii oric ; nmi an^ay tbc-y wiiii, I tbink
Hbont 15 of tiic;it», aud uo Miort' did olF* r to g^
as 1 naw, nor did I see nny Iviiidef nny (but
would g^o : and nfterwHrds, ibey tUal wejrt tiif
went ftfiotH tb«ir bu^messi nud we abtiut our
buftint*M3i. And we ^ame to tbe IsJc tkf May,
aud vif tuuHt^d ourii«lfPs tbere ; snd lh«re vi«
met witli !bri?<3 Ko^beh ibip!!!, out of wbicb we
tiMjk ttome ufoeisaneg for ourselves, ntid imorig'
tliid reit sevi-ral raeti ; nine men we took out of
ib*^rii.
Sttl. (hn. Wrre tbo priftAn4»*fi &t tbc bftr 19
the *ljip, ^ h«nthey went away i
Ihm, Yw,
Sat. Ofth Name tlietn,
Utin. Ed. For34iulb, W. May, J, L«iPit,
' ': of tbem wa« iboatii
Hi ^-nd tobpfF
X^./:. V( . r*i4^, ii;id J, Sprk*^ ; aiMl Ed*
F^rirftli« Ji&. Ltiwb, Hud l\. BUbf^i cfttuii
frofu ilii* Jrtnii^^* * '
i^lr. Cwpcr. Was it not gtneraUy nailer'
ftlCHHl, I bat tbey wete |;tolug to run awi*y'*rjtll
tbc* «bip^ \vht*ti tbiiy cnin^ to capiauk Oibsonf
D&H. Ye«/8lr, tbcy knew folic sture.
Sot, Otn, Ud you knoiv tliat tbi^y as^MPUtet^
to it?
Dafi. No, Sii\ I did not Ucar thpm nay mj
Just, i!*jfr«. Did tbcy daiirt* to ij^^asdwr*
witb the rest? — Dan. 1 ^aw mmi? bimlet^d* *
L. C.J. Uo^l, na4i Ed. Fonk!atb in tb©
<iliii»tbt!nf
/Jfyn, Ed* Forjteitb wai in the ibJp llieii*
I*, C. J. i/c^^. Wa» lj« at the Isb «if 'May^
i^kin^ in nffccft^aiiuii wilb you f
l^an. Ye*. Sir,
L. f: J. JM/. What did be ^u 10 Ihecom^
panyf
IJitn, Hewiu iii.Ui# sbip, and came ^Hm
tbiTJ»iiii«. -^ *
ir. C, J. Hi/it. 4cid ftn did Bisbop, and so did
Da It. Yts^ my li^rd, tbt4«] tbr^ ; md llitf
otbi^r twobtilonged ti>tbe CbarU^#
Mr, Whitakt.r. Did liiry of ibe tib^i*! cr»i#
go aebor^ at lb if Imh* of IVfiy ST
I^mn* Y«!i, Hir^ 1 think si>,
Sal, Gin, But I ibittk, you aa^, tUat llto
wofd wai i^fflii about, tbai any mtgbt f« tbit
would.
2H
8 WILLIAM IIL
Trial
467]
Mr, Conyert. Go on >«itb the prDceedings
fler you' were at tbe Isle of May.
Dan. Alter we had ? ictuaUed, we took in
Omc men,
Prismers. We bave been tried for that mU
rady, mv lord.
L. C. J- Holt, Gti on.
Xltifi. Ai'ter we had been there, and took in
' ^but we bad occasioo far, our quarlcT master
0ai(l, he woiild give tbem bilJs for what be took
ot Ibem. Then we went to tbe cuast of CjUI-
nea, and took several negroes, and crried tliem
away with us. And aiWward we went to tbe
Island i^f Fi inces, where lay two Danes, and
we fought them, and look thfni ; and after
wc had taken thenif some of tbe men went
ashore at the island of Princes, and otbeta
went along with ui ; and we brought the ships
io Vaodcpo^ and burnt one, and carried one
with us. Then we caroe to cape Lope5.
L.C.J. Ho//. Where »■ that?
Dan. Under the equinoctial line ; and there
Ve tired a shot through tbe tiltle one to sink
Iter, for the men could not agree, and so we
could not carry her with us. We went about
the Cape, and touched at Madagascar
Dr. JMtleton, Had not these men their part
ind share of the ^d under f
L. C. J. Halt^ You go too fatt. Sir,
Mr. C<myerM. What i*aa the next ship yon
Jloet with, afleryou bad munded the cape?
Dan* The next waa a small vessel, about 30
l#r 40 ton» and we ^ut ber ashore, and took a
' jmall matter out of ber, and let ber lie ; and
I we pat this gentleman^ Mr. May, ashore*
od #e feeing three English shine a coming,
yrt lelt him there, and went to the equinoctial
Jine; and "^afterwards, for want of bread and
water, we came a^&in, and took another small
Tewel, and sonae rice and jMMiy out of ber, and
sunk ber^ and then went to tbe Cape again, and
look in W. May again, and met another vesseli
snd took rice and meal out of her, and sunk
ber too. And then we went to the Red Sea to
a town called Meat ; and the people would not
de witb us, and we burnt it. And thence
»e went up ta the Red Sea» as far as we could,
md going up to tbe c^pe Adio, we met witb
li^o £ngmih privateers more, and they came
[■bd joined witn us.
L. C.i. HoU. You call them privateers;
t (ut were they such privateers as you were ?
Dtin. Yes, my lord. I suppose they bad
L commissions at fir^t; butliuppose they did
fpot run so far as that.
Mr. Cony en* Did you g^ all oq the aame
011. Yei, tbey tailed on with u«, and we
r^ade the be»t of our way, and eame np into
lliie Red Sea iu a Ultte time, and came \\\m\ an-
sliorat BobV liLey, and bad lutn there but a
luight and a day, tind tbufo came up tbrc« tin*
~* ' iniuu more' iW»m America ; and Uiey like*
oonsoried uith ns ; and we lay there
Bt *^' ^^ " '^ ; and in that time w« expect*
I t!i (lie down.
*1 .... Whattktlf
2
of Joseph Dawson and otherif
Dan* The Mooriib fleet, ikai c%]
Mocha. Tbey piisaeil na oti Matiirdai
unseen* and we took a %'cssel, wiffcb
an account that ibey were gone. Ami
followed thero •, and about three daya
made land, we came up with one of
about ';j ur 300 tons, and \
her, and small bhot, and t
we h* ' t ' II Iicr, we pUiuutrcu, ariu lool
sont' siUer.
Mi. Vcj/(/«. And what did yon do wtlhit
Dan. We ftrougbt it alioard our ibip,
Mr. Conytrs. Did you share xif
Dan, Not then, but after we look theolba
ship.
iMr. Conyirs, What was that other ship?
Dan* After we had taken her, we put mi
men al>oord to keep beri^ithns; nmtali
two days aller we wer** lying" ^^ anchor ai
John *s, and there ^i t^ ^
Gun^iiway j and we
ber alwut two I
some men hIhk.
after we had d^
venieiit, we sn
her. And theu .
CiMUt,aud shared uuj
L. C.J. Ihit. Tt, . M , ,v
it not, tbe best you bad all tbe voyagt f
Dun. Yes, my lord.
L. C. J. HoU, Did you all share?
Dan» Yes, all that were in the ship.
L. C. J. HoU, You ha^^e given
count of this matter, Was Edwi
there?— Z)fl«. Yes, my lord,
L, C.J Htyit. What did he do? Wt*
active ? — Dun, I did not see him act.
L.C.J. HoU* I lad heaahair:^
Dan. Yi'SJ» n»v lord, be had.
L. C. J. HoU. Waii W, May there.*
Dan* Yes, my lord.
L. C, J. HoU, What did he do there f
Dan. Me could do but little then \ be
his share.
L. C* J. HoU, Ajid wh»n vou took himii
again, what did be do? Did (Udobia
aa a seaman ^
Dan* Yes» my lord, till he w -
L.C.J, HoU: WanW, B.V
Dan. Yes, my lord, he was i: -a -
L. C.J. HoU. What did h. l-
content and n^'^rcelo wbar wns ti^i.. '
Dan* He had share ol Uji' niOiie\ .
L, C. J. HoU^ Did J. Lijwib >biiR vjo !
Dan, He hail a uUnre^ as far aa was ailotl
by the company.
L. C. J. Holt. Did J* Sp&rkeft sbaro
you loo ?
Dan* Yes, my Wd, aa far a* iho compai^
thought til losrlvehiiii
Mr, Cow per. ^Vhen yi^a ^ay * y ^
pany tlniught fit,* Mtmt do %<iy i\y>
did titey ah are if f
Dan* Some hiid 1,000/. aojne AOOL
300/.
Mr. Cmtpcr, Had all the i»(
abarc T — Dun, Yew, fciir, all Iml <
Ihd
^!
Jot Fehrt^ and Piracy.
Ifp. Whitaktr, What (lid you do wllh the
ClyiHe«tb« Second, after ihe voyage ?
l>aft. We left Uer at Providence*
r«. C< J. HoU, II' any of yon prisooers at
be tiftr will Jisk him any questions, you may.
Just. Turton. What (irovislons nere aboard
iLe Charles «vlien she wa& taken avvaj f
Dun. I canuoi teU.
Jtisi. Turton, What quantity of bread was
Ihere?
IMft. A pretty d«fal» 1 cannot teJI the
^os^otity.
Jtkit. Turton. And were there any guns
alMtrd her and small amis T
X>«it. Yes, tny lord» there were.
May. My kird^ may 1 speak (or mysett?
L. C\ J. *i/c?/(* II you wih ask him any ques-
liouis you may ; you shall be heard again to
speak for yourself bye and bye.
May, I'desire he 'may be asked where I was
lakenskk?
I^ C. J. Holt, He asks you, where he was
taken sick?
}^ T f \ '■ ' \A\ that, 1 think it was
at A "fGuineti.
13 .M.» ui n-vin with it.
? ou did not ; but your first being
takt V at Allihoi^,
J '»nl» I deiiire you will ask him,
irh* 1 lukij I had any kno%*iedge of the
gx>iiig away ol ihe ship '(
L. C. J* iiu/r You hear what he saysj
whatdoyou»].)y ?
, DAn. I know DOiluDg of timt,
I4. C. J« Holt. You were lhere» and you had
I aUsre of the prize ; you drank aii health to
the surce^ of your voyage.
iUiiy, I hope, my lord, you will not be
yy fur a^kioc 'itteslioos,
U C. J. Hoit. No, nobody is angryi you
» ask what quesUons you wilL
|7befi Ptiilip Middleton was called and swotu.
Blr. Conyers. Pray tell what you know of
I taking away ihe ship i-harles the Hecoud ?
MMUton. i cannot say any thio^ of ruii-
f «>ing away njth the ship, tor I was asleep then;
tiut ttiierwards, in (he murnint^, they called
up all hands ; aiul the CAptaiu snid^ E? ery man
^B aiiould share alike, only he would have two
■ 1. il J. Udt. Who said so ?
^B Midiiieton. Capi. Evtry. From thence they
l^^wen* '" 1^- '*'vvt», and louk iu some m\i ; and
froii thev went lo the i^le of May,
ajxi u V took three En^lisli ships, and
plnoiiered them ; and tliey took the goveroor
aboard their ow n shi]» till ihey had done, (tor
tJien they could demand ifthat victuals they
had a mind to) and then thev spnt bim away
again: And from the lule of ttay they vYent
lo tlie coast uf Guinea, where tney put out
Saglish colours, to make the natives come
1 10 traile ; and when they came aboard,
f surpriztrd them^ and took their gold from
, and tied them with chains, and put them
I the hold; axid whea Ihey caiue to a place
A, D. ims* [*7(l
called the Island of Princes, they gare serea
of ihtfm away for slaves ; And then they went
to Vandepfve where ihey cleaned their ship ; and
from Vandepoe they went to Cape Lopes, and
from Cape Lopes to Annibo, and from Annibo
about the Cape ; and at Madagascar they
watered their ship» and got provisions^ and
cows to salt up ; und from thence they went
to Joanna, and from Joanna they went to take
a Juuk, and took rice out of her, and sunk
her ; and from thence th?y went to the Equi-
noctial hue, and because they were short of
water and rice, they went back again to Jo-
anna ; and the wind being contrary, they went
to Cnmmeroe ; and there they met a svnaJl
French vessel, and they took her, and sunk
her; and then went to Joanna again, and
theie took in Mr. May again : and then went
to Meat; and because the natives would not
tiaiie with them, they burnt their tovin : And
then ihey went to Bob's Key, by the mouth of
the Red 8ea ; but before til at, ihey met with
au En^^lish vessel, thut was on the same ac-
count that we were \ nml we rode there anight
or two ; aud they saw thert another sad a
coining, which proved to l>e another Eng*
lish vessel : And in the morning they saw two
more ; May, Farrel, and Wake, were tije cap-
tains: And on Saturday niglit all the Mocha
fleet passed by : And on Honday morning they
took another* vessel, tlmt told them the said
fleet was gone by ; and so they consulted
whether they should follow them or stay tliere.
And then they went after them and overtook
them* and took one that was about three or four
hu ndred ton, and took u old and silver out of her ;
and sent men al'Mard her 10 plunder and keep hen
And next day they spied another sail, and got
up (heir anchor, and stood to her, and took
her; she was called the Cunsway ; they
killed several men aboard, and when they had
taken and plundered the ship, they led tba
men aboard to go to Surat again. And theo
they went to Hachipool iu the East Indies*
and got water and aecessartes ; and from
tlience to Degorees, and watered again ; and
then to Dascaran, where they set about twenty
hve Frenchmen ashore, and fourteen Datieiy
and some Knglish ; for they were afraid, if
they came lo England, and were caught, they
should be hanged ; and they thouglit them'*
selves there secure. From that place they
went to Ascension, and iheu to the hlund Pro-
ndence iu the West Indies: And then they .
n rote a letter to tiie governor, to know if he
would let them come in, and said they would
present the governor with twenty pieces of
etght, and two pieces of gold, if he would let
them come in ; and the captain, because ha
had a double share, he oHereil forty ])ieces of
eight, and four of gold ; and with that they
sent some men down, Adams and ot tiers, wito
the letter: And they came again, with a letter,
from the island, that they should be welcome^
aud come and go agaia when they pleased.
Mr. Convert. L^ok on the prisoners at tba
bar. Were they all there f
171]
S WILLIAM IIL Trial f^ Joseph Bmnon aitf others^
m
L. C. J. Holt. Do yon know Ed. Forseith ?
Was he there? Did be beloti^^ to the Charles
the Secon<l ?
Middifhni. He came fro;n the Jamrs.
L. C. J Iloif. ^Vas W. May there ?
Middtetun. lieu as ahriaH the Cliarleii.
li. C. J. Ho/^ Was W. Bisbup there ?
Middieton . UM iishnp came from the James.
L. <:. J. ifo//. Was J. Lewis there ?
Middlclon. \'es. hv came from the James.
L. C. J. HoU. Was J. Sparkes there ?
Middhton. Yes, he was ahoard the Charieit.
li.C J. Holt. Had all the men tlieii* shares ?
Middieton, Yes, such as tlie company
thoug^ht fit to allow them, all of them.
L. C. J. Holt. Had these men their shares
of the several prizes they took ?
Middieton. Yes, they had.
L. C.J. Holt. Werc'thcy active in the tak-
ing of the prize ?
Middieton. They were, as far as I saw.
L. C. J. Holt. Were not divers others set
Ashore besides capt. Gibson ?
Middieton. 1 never heard any repine, or
wish they had l>een ashf»re, or that they had
never come along with the ship.
L. C. J. Holt. Rut, do vou know of any
Others that were set ashnre ?
Middieton. Yes, a great many, Mr. Gravet
and several others.
Mr. CtiTpper. I *hink, you said, some French
and Entrhsli uere set ashore in the Indies ?
MiddUtm. Yes. Kir.
Mr. Ci*7rper Were they set ashore willing^ly ?
Middle on. TUvy di sired to he set ashore*
Jun/man. He savs In tlie innri'injy capt.
Etctv callciltlji'fn above ilcek, ami Lfave li-ave
to any t(» ijo a«*luMe tliat w.'rr iu»t willing- tnrrn
\\\\\i them ; \u* di«*iroto \uuw wlutht-r any of
the prisoiirrs wen* tii'. it at liiut liiiio:'
Middltton J know I. oi thai ; all hands were
tsulled lip.
L. C. J. Holt. You hear what benr^.
Dniit. Yes, you were, and I omwM
yon to come Imck, and you refuted.
Foneith. Did not vou comnaad me'tOfD?
Druit. Yes, and 1 afterwards o
you to come back, and you refusari.
Forseith. Yon did not command i
Druit, Y'es, I did, and fired «t yoa, and
shot throuGfh the boat.
Forseith, I held water with my oar, tbat'waa
all 1 could do.
L. C. J. Holt, What did you commandlnfti
to do T^Druit, to reacBe the abip.
L. C. J. Holt. Instead of raacningr the abi^
vou run away with her. He commanded yoa
back, and yon refused to ooroe back.
Foneith. I could not hriajyc her book myatif,
nor come back, unless I ahouM leap over*
board.
L. C. J. Holt, Have you any more toaay ?
Foruith. My lord, when I was in Ihelioat,!
knew not who was in it, nor how many. When
I camea-board the Charlea, the aaila %rere kNM«^
and I was in a very sorry condition ; they cut
the boat off, and put her adrift ; I coukl notgcl
into her, she was cone in a minute's time, I
did not know which way, or what men there
were in her, uor heard notbin|f until two
o'clock the next day. And I hope, my bid,
as we are but poor sea-farinj; men, anil do wH
understand the law, you will take it mm ooo-
sideration.
L. ('. J. Holt. But all you seamen under-
stanfl that law, that it is not lawful to comiuit
piracy ; and he. that doth, Heservrs to l>e hanged.
Foffti'fi. My hutl, I ii« vtr did.
Ij. C. J. Uott. Did \ou think it no piracy to
roh i*
Forsrith. I unc t'nroetl to do what I did.
Just. Kifrc. ^'lln ail «-ofn[i('t(t'd ono another.
Forseith. My n»iii, I u as sent of ho erianil.
liopcas\%t> arc |M»nr nn a in this eonditiun.
Just. 7wr/nn. \\ h.it ninnlur of prr.xons ' y" "i" iJil**' '"t** <''^nsidi ration.
ivere alinuni \^ hen \\w ilii i.ti :,«! wns nuule ?
Middhton. Abom a liiinilrcd aiul sixty.
Jnst. Turtuti. Whul nii;;!it tlu- sIi.uls W?
Middiffnn. ^S»Mn(• I'jfiO/. siunc ()(#•>/. an»!
some 500/. and some lesK, airordin^- s*s the
company tliou<rht they ilisrru d.
Jusf. Pnrfon. Had not \ui\ a share ?
Middieton. 'N'es, what the cnnipany thonijlit
fit, anil they told inn that would serve to put
lueout an apprentice, and that I should never
go near niy friends.
Just. Tu7ton. How nuich was that vou
lia.l ? ^
Middieton. Al»nve an hnndrcd poiiiuls.
3\Ir. Cont/nx. What hi'canie *»r it :'
Middit'oi. Jr> SinrksrolihMl mo of it.
1-.. (J. .1. //*»7. Th." kiuii's f«ni:!'Jil havi*
c^onr wit!i tin* e\i«len(i', iind tlienfiiM* now is
your timr lur ti» spiMk, it* \ou lia\»- any liiinif
to say lor yoirscUi-*. Kil. rnrst itii, wii.il
lia\r \ini lu s:i\ f
F.J? /(•'/. "VI \ |.M-;1, I drsin* yoti would eal!
Mr. Oniit. and «sk inm wheilitT X wui oiiu of
<b« pinnace's cruw ^
L.C.J. Holt. We fhall. Ifa\e you Any
more lo say J* — I'mseitk. No. ni) l.»rd.
L. C.-.J Holf. W.May. x» ha'i do you .«ay f
Mm/. Here is oni' ol the kiif«;'s evittrnciv
that ttsliti«'< that 1 knew noihiii«<f of the shi^i'w
Lfoiiio; av:»y ; an<l 1 lieliew ttry few knew if.
I beiirve not rIiov«- nine or I* n.
L. C.J. Holt. None of them siy yon wene
at tile eoiisdh; hut (»oe s:i\s that wui !:aid»
' God (iaiiin \ou, \ou desei vi* to he shot through
the In-ad */ and hfld a pistol to hiin.
Mat/. I ijHVtr w'ls any hitjfh*^'" than the
under-drelc;" I \va> ooiniu;^ up the hateh-wa\,
and e:.piaiu Kvny was staiidintr. anil cori-
inaiiih:iLt lln* -hip.
L. 1". .1. //«;/'. Kvery was no ofHeer, he hud
i iMMiiiiio 1;) do to (ouiiiiHiid ; hi* was under
j eaj.iain (iilisni'.End took tin- s|ii|)tio:ii Gil^soo.
j .1/'.'// y\y l<r.d, IkiiiiN^ noihini; of ttieship*s
1 '^m.-ix .'..vuy
! J.. (' J. i/..//. Vou should Inive stnefc to
: rapuiin (iih-soii, ai.d ei.di-.r.ourcd to suppress
the insidtiu-r of i'^cr\. Capt.nii Ciilisoii was
the cumuuudcr,. you ou<rht to have obeyed
4ns]
;fifr Pdotymnd Kraog^
faim ; and if wiy liid raiiited him, or gone to
mitafbroe opon him, yoa should have stood
py him.
JjAy. I was snrpriaed.
L..C.J.flo2f. How?
May. By Gajrtain Every, and knew nothing
of it.
L. C. J. Bolt, Yoo were zealous from the
beginning, and said to one, ' Damn you, you
deserve to be shot through the head.'
Just. 'S^urtan. And one says, you drank a
health.to your good voyage.
May. Presently after I heard this rumour, I
came up the hatch-way, and capt. Every savs,
** You, May, 1 believe you do not lo%e this
way, pray get down to your cabbin." So I
went lo my cabbin, whieii one that is noiv at
Tiiginia coukl testify ; which I hope will be ;
ceuidered, that 1 cannot have my witnesses I
forme. j
L. C J. Holi. What have you more to say ?
Have you any witnesses to call ? \
Mmy. I stayed in the cabbin a considerable
time. 1 was thinking 1 must leave my old
taptain without seeing him ; and I beg^tid
them to give me leave tu come to him ; and
there was two men stood with naked cut laces,
and would not let me come to him. We had
some confabulation together, and I begged the
favour to come in, and at last they permitted
me ; and the doctor was anointing the cum-
nander's temples. And as I was comingalong,
I had my hand cut ; and I went to the doctor,
to desire him to liiud up my hand. When I
came out again, they b^n to hurry the men
away. Here was Mr. (iravet, the secontl
mate, who is now one of the king^s evidence ;
and I told him he should remember me to my
wife,. I am not iike to see her ; for none could
ft, but who they pleased : for when tliose men
were in the boat, they cried to have a bucket,
or eke they should sink, tlicy having three
leagues to go : anil 1 do not know how they
ODulil go to tar with more, when their boat was
Eke to sink with those that were in her, as some
of the kind's evidence have testified.
L. C. J. ExdL Who will you call P
'Jl«y. Mr.Dan. (Who appeared.)
L. C. J. Holt. Mr. Dan, answer the ques-
tkNi, Whether there was calling for a bucket
•Bvml times by the men that were in the
fcootf
Dan. They did call, and a bucket was given
Aemtopnmp with.
L. C J. Uolt, You were ivilliog to be rid of
May. I have more to say. Afterwards, if I
Aookl have denied to go with them, I might
kfve been killed by them ; and I knew not
vketber it be better to be accessary to my own
death, or to suffer by the Jaw of the natlttn.
Sir Ch. Hedge*. You seem to say that you
%ere under a constraint and terror. Did you
taake any eomfilaint or discovery so soon as
you had Jii>erty, or at your iirst crnning iuto
Ibe king's dominions ?
May. Yes, «t^u|*ima«
A. D. 1606. [;474
Sir Ch. Hedges. Where did yon first arrive
in England ? — May. At Bristol.
Sir Ch. Hedges. When yoii came to Bristol,
did you discover it to any magistrate ?
May. When I came to Bristol, I had a de«
sign to discover it to tlie Lords of the Admi-
ralty.
L. C. J. Hdt. Did you go to a magistrate ?
May, I was several days iu the kind's col-
lector's house, and did discover the whole to
him ; and at Providence.
L. C. J. Holt. You speak now of Provi*
dence; but iu England who did you discover
it to?
May. I was taken sick, and could not go
abroad.
L. C. J. Holt. Yuu might have sent to tho
mayor of Bristol.
May. I knew nothing of it, 1 intended to
declare it to nunc but tlie Lords of the Ad-
miralty. 1 kiU;W no uiau there, but two men
that were fellow- tradesmen in Virginia. 1.
came from Vii*ginia by the tirbt ship ; and if
that ship had come away before the Heet, 1 had
been at iionie long before. 1 lay sick at Bristol
four or five day;;, and the filth day 1 got |>as-
siUj^c for London hi the coach ; an' I was taken
three miles off Bath by the king's messenger,
by one wlio betrayed me, and I was carried
liack to Bath again. And there was the diiko
of Devonshire ; and there they examined the
whole matter, in every painit-ular, as I havi.'!
now declared to the court. And my lord de-
sired the messenger should tukc me away
again, and see me sale to LoihUmi ; which uas
all he said to me. 1 have more to say, as to
my being put ashore at Joanna. I had no
place to go to, but hiy in a lament able condi-
tion ; 1 could not put water to my mouth ^vith-
out help, and remained useless of hands or
feet, despairing of my life. 1 desIrcMl to go
ashore, to see if the air would do me any good ;
and I went ashore ut Joanna, with another
man, Gunning, and others, for refreshments
So the second day we went in, there appeai-s
three shipa, which were East- India men. Cap-
tain Every heuig surprizn i by ihesesiiips, has-
tonetl his men and uaUT ahciard to get out to
sea, tliKt he iiiitrht not l>e surprized in the road
\«itliout his men on board, who were come
ashore for the stick. And I told them, I will
not go uith you, 1 will rather trust to the
mercy of my eonntryinen, or the mercy of the
ne>;Tots : f should endanger my liiie, if I go
alKtard ; if 1 stay, noipi?stion my countrymen
will have coui(»assion on me; and if 1 have
committed any thing worthy of death, they
have authority to |)Ut me to dea.h aocordini; to
the la%v of the nation. And 1 appUed myself
to Mr EdgiH)mb, when he came ashore, and
he gave me scurrilous language. But 1 re-i
pli<Hl, I am a weak man, for me to stay behind
IS death ; I had rather sufl't r death by the
laws of my country, than to lie left to the
mm'3' of these negroes. 3Ir. Edgcomb says,
1 will take you dowu with me, and will hang
yoa there too.
475]
8 WILLIAM m.
Trial of Jose/A Dawson and olherSf
[4T6r
L.C.J. Holt. Where?
Mat/. At Bombay, whore he snid I should
lie tried. Wis mate, and several other En;^-
lishnieii, came to see me, and brought me une
thini; or other to refresh inc. And at last, at
nif ht, he sent his doctor and purser to me, who
said, the captain is just now sending* hJM Uoai
fur you. 1 replied, I am ready, here is all I
"have in the world ; and he goes away abuut
two o'clock in the nioruin:^. And I remained
seven or oi;jht weeks at the mercy of those
negroes, and had pt i ished, hut that a nes^oe
hearing an Kn'^lisliman was there, came to
me ; he liwd :it. Iir,'lnal-(irt*en, and spoke
English very well. }\v went from Knglaud in
thesliip KoctiL'Ntcr, taken at (iiiinea some tim«
before. The traptain cdinni.ii.ded this nc^oe
to go for the loiijf-hoai, and turn her adrift ;
which li«' docs, hut i^ocs awav with her hini-
■elf; and in tiir* fi^ht, says, the ship blew up
hy an acridrnla! f'.jr, and scvciid were Io$t.
1 his l•f•^^lf' I p't In look att(*r n:(\ and he did
n-aily ff-«'d ni>', .uid t>i>i me all nfc«'ssnries l>e-
lnn(;ui'/ tn in<' : smd hy tli.il nicauH I saved my
life. \u\\ ^^luncapliiUi r.vcry came iuai^^ain,
I r<Mild li'it \:u niir Ntir.
li. r. .1. //<;//. I hi not call hiiti captain ; he
wan u piialf.
Mtiif. Ilr mmnuiiidcd uic, I \fas forced to
oliey him.
!..(:..(.//'//. I'lM- that fuRttorcall Gravct
■gain, hccausi* \<inaiid he were \ cry kind to*
Ifi'thrr; yon fih'iNik hands uiili him, and bid
liini farrwctl, and nMuendicr you to your
wife. Mr. (iraiff, do yun i-cniend>er, when
Y4in went iiitti flu* hout, did \V. May take his
li-ii\f of y tin, or uaK he unv^illing to be left
Iu'IiiikI i'
(ituur. ^Mirii we had liberty to go out of
ihis ship, this man, \V. iMaVf took nie by the
litiiid, iiiid uishi'd ino uell liome, and bid me
n-Mi4'inI»i-r liiiii to his n^H'c; and was very
inrny and locund, and knew u hither they
%»iT«« gtilii;^.
Jusi. 'I'liiton. Did he express any incHna-
lioM to i>o wiili yoni'
(irart:l. N«», ni\ h>rd, not at all.
I<. ('. .1. //<*//. Have ymi any more to say ?
Mutf. Yes, my lord, I remained in this con-
dilifin till I came ti> Pro\i(UMiee ; ami the king's
••riilence can tcslity ^^hat I say. 1 only lieg
mercy of this honourable bench, toconsider my
Wf'ak* slate and condition that I have been in.
li. ('. J. Holt, lla\e you dt»nc?
Mttif. Vi.'s, inv bnd.
L. C\ J. //(>//.' Then the next. W\ Bishop,
what have yon to say ?
Hisfiop. I belonged to the ship James: and
at thr (iroyne the men began to ccmiplain about
wages, anil that wua the tii-st be>;inning of the
disturbance al^out this piolting. We were
ship|H.'d out of KnL:buid in sir James Houblon's
sen ice, to the Spanish West Indies. I'piui
this mutiny anmng the men for their wages,
.eviral no ii went alMmrd the king's ships, an<l
dcsiretl ui be entertained on board any of
them to ^*^o fur England ; and we all went away
again to the ship, because we coald not be en«
tertaincd. But this design of £very*B 1 did
not know of. On the 17lu day captaio Hum-
phreys calls, and says, my meu are gone aboard
the C.'harles, I think. Anil he calla oatf lays
he, Mr. J)ruit, man the pinnace. I beiog then
on the deck, at night, the racn all auiet, as I
thought, I went into the piuuace, and I was no
sooner in, but in comes fifteen or sixteen more
that knew of the design: but 1 was then seat,
and knew it not. And Uiey put off the boat
and overpowered ns ; and se? eral of us would
liaFe gone aboard again, and they would not
suffer us. And when we came aboard tbeship
Charles, they had cut the cables, and the sails
were loose, and severe] men went from the
Charles to the James in a boat ; and they com-
manded the innocent to do what they pleased,
with pistols and cut laces : and they commanded
me to go into the hold to do what ibey pleased.
And I not knowing ofthis matter, the men that
ueic in the boat called, haiul the buckets, or
we shall sink. And I he:ird afterwards that
none went ashore, but whom they pleased, thai
is. Every and his crew. And i not knowing
of it, could not go ; atid if I had known it, i
had not been admitted to go. 'J'hen we were
carried two leaguca \« ithout tlie Groyne.
L.C.J. Hull. Have you any witnesses to
call :*
Bishop. 'l\\e king's evidence is my witness;
he command'.'d me to go into the boat.
L- C. J. Jiolt. Will you ask him any ques*
tions ? — BiJiop. No, my lord.
L. C-. J. IluU. James Lewis, what have you
to say ?
Lrnis. I had been in rrance, a little before
the ship came to the (Iroyno, a prisoner there ;
but I knew noihincf of Every 's de/ign. By the
command of our ofticer 1 went aboard the'^boat,
and as soon as \* c w ere in her, we \\ ere over-
powered, and carried away ; they took the
oarK nut of our hands, and'oarried us to the
ship ('hartes. And when we came aboard,
■ they put the bout -adrift, and then they com-
manded me into the fore-castle ; they had arms,
but we had none, and so were forced to obey
them. When the l^mt was going olf, I heard a
noise of crying out for a bucket. And when
we were gone froni the Groyne, we weie forced
to do what they \u)uld have us ; it wiis against
my consent, and against my will.
L. C.J. Hoit. J. b«parkes. what say you ?
Sj'urkrs. When ca|iU\in Humphreys called
to tiiem that were gone into the b<»at, ] was
asleep ; but with the noise of Gravet's erring
out, He is coming, 1 a^^akcd ; and all put the
candles out, for fear 1 should see them. And
when the men were come aboard, I went on
the deck, and they trowed the hammocks, and
knocked medoun.
h. C.J. Holt. Who did it?
Sptukcs. 'I he hanunocks they brought from
the other ships. 1 durst not do any otherwise
than they bid me; J was innocent of the thing.
I asked what they were going to do, and they
said they were goiug for England.
JvT Fehny and Piracy »
.Eoli. Whotoldjoaiof
i. John Dan;
. Holt. J. Dan, did you tell J. Sparket
wwM gwog for Engbnd ?
[ do not remember I saw him all the
. HoU, f would ask yoo, if you had
>f tbeplnnder?
L I was forced to take it.
. Hoii, Phil. Middleton, you had
ne, had you not ?
ton. Yet, my lord.
. Holt. What became of it?
/OR. They took it away from me.
^ Hoit. Who took it from yon ?
torn. J. Sparkes robbed me of it by
. Holt. Did he Uke all away ?
ton. Yes, all that I bad there: 870
i of gold ; it was in a belt.
r. He took out his money and shewed
roopers, and they made him drunk,
from him ; and the next morning he
took it from him.
ton. I was forced to say so, because
e had it, he woukl have made no more
mv throat
. ilolt. Have you any more to say ?
r. No, my lord.
II. May It please your lordship, and
lemen of the jury, I am of counsel
ise for the king against the prisoners
r. They are arraigned for a very
le, a robbery upon the seas. It was
crime because committed on the sea,
r the more. These men had a trust
n them to assbt their captain in his
but instead of that, they resist their
irn him out, and run away with the
ley ooold not find shelter in any other
e ivorkl, and I hope vou will make it
ich crimes shall not nnd shelter here,
I in other parts of the world. These
fs against tlie laws of nation^ and
0 rcKibery on the land : for in case
rj on the land, we know who is to pay
1 a robbery by sea, it often happens
cent persons bear the loss of what
a do. It has been very plainly
gainst the prisoners, that the sliip
'as nm away with from the Wroyne.
IS plain by two witnesses, that alf the
at the £ar were in this ship; by
t W. May in particnlar was one of
id by one, that W. May was so fur
, that because J. Gravet seemed to
be said he deserved to be shot through
: so that he that would make him*
OBOst innocent of the five, is most
icy have only this to say for them-
i| tb«y weve forced to do what they
; it bw bteq proved to you that tbey
fa lid; U was said, all might go
Id, And it is not proved on their
•ay one of the prisoners did seem to
Ml ibdr gorog away. It is proTtd,
A. D. 1696.
[479
that Uiey alt made use of this sh'^p to very bad
purposes ; that they took and plundered seve-
ral ships, and shared the booty. We do not
produce this to prove them guilty, but to shew
that they nmde use of this ship to this verj
purpose. Now if you allow wiiat they say,
that they were forced to go away ; then you
must never convict, at any time, one or two^
highwaymeti that rob in the company of foiur
or five ; for they may say too, that tney were
overpo%vcred, and forced hy their contpany*
It is so, not opiy in case of robbery, but in all
other crimes also. They have said a ^eat
deal indeed, but without any manner of nro-
babtlity of truth. They have produced na
witnesses for themselves, to prove any thing
they have said. And the witnesses for the
king have given testimony without any excep*
tion. And, I hope, you will vindicate tne
credit of the nation, and find them guilty, as the
evidence has proved them.
L. C. J. Holt. Gendemen of the jury, these
five prisoners, £. Forseith, W. May, W»
Bishop, Ja. Lewis, and J. Sparkes, are in*
dieted for a piracy and robbery committed on
tlie hi^b seas, some distance from the Groyne^
in taking and carrying away a ship, and seve-
ral goods therein contained. She was called
the Charles the Second. This was done in May
last was two years, 1694. You have heard
what evidence lias been given on thfs indict-
ment against the prisoners.
It has appeared that this ship was bound in
a voyage to the West Indies. Two of the
prisoners, W. May and J. Sparkes, were sea-
men then on board this ship, anil engaged in
the voyage ; the other three were not mariners
in that, but in another ship, called the James,
that lay, at that time, near the Groyne ; but
they came aboard the ship Charles before, and
continued on board her when she was carried
away.
Tiiat there was a piracy committed on the
ship Charles, is most apparent by the evidence
that hath been given ; that is, a force was put
on the master, and some othera of the seamen
on board her, who, because they would not
agree to go on a ])iratioal expedition, had liber-
ty to depart, and be set ashore. 3ut the ship
was taken from the captain, who was possesseii
of her for the use of the owners, and was car-
ried away by Every, and others of his crew
tliat reniuined on board her ; and others came
from the James: which taking was a piracy ;
that is manifested hy the use they did put her
to ; for they did afterwards commit several
other piracies with her, and took several Eng-
lish and Danish ships, and then went to several
islands, countries and pla(;es, as to the isles of
May and Princes, to 3Iadagascar, and then to
Joanna, and aAerwards to Meat, and then to
the Red Sea ; and at the entrance of the Red
Sea committed more piracies, iu the manner
as you have heard, and has been very par-
ticuhu-ly described to you. So that 1 must
t^I you, beyop^ a|l p>ntradiction, the Ibroe
put pn the 9•p^iD} and taking away this sbipi
479]
8 WILLIAM* IIL Trial ofJotqA Damon and, otherif
[480
calKid the Chiries the Sicond,' was a pincy ;
aad for that particuhur fiMt these prisoners are
now charged.
The matter yon are now to enquire after, Is,
Whether all the prisoners were guilty of this
piracy, or which of them.
As for E. Foreeith, Bishop, and Lewis, it
hath nppenreil to you, that they, with others,
were aiu»ani the sfiiii James; and that there
was a ri*|M)rt spread ahout of a plot asfainst ihe
captain of tlie Charles the l^ecoud, and a
design to carry that ship away* To prevent
which, there were some of tuese men sent
otit in a boat, by the captain of the James,
to this ship, to* assist captain Gibson; but
instead of prevoutiii«:f this piracy, they staid
behind, and went along with these luen that
carried away the ship.
As to W.'xMay and J. Sparkes, that were of
tliis ship.'s crew, tliey continued on board, and
were parties in all those piracies.
There was a mnsult, it seems, hy some par-
ticular persons, of which EvjTy was the nng-
Icatler, how to effect this design ; capt. Every,
as they call him, though he was no captain,
but vias untlcr tlic command of capt. Gibson,
tliat hail the conduct of this ship.
It is true, it is not proved to you that these
men were at that consult ; for, it seems, they
were too many, for they were about IGO that
remained on huard wheu the ship was carried
off.
Now for \y. May, Jo. Gravct, second mate,
tliat was aboard, tliough he had a pistol clapped
to liiuf to [ncveiit any resistance, yet had liber-
ty todej^arl ; and upon his jroingoff, disrours-
■«d with May, who shook hands with him, and
hid him fan'wil. and remendwr him to his
wife. Ami t!ieif fore it is eiident th it U'. May
wns under no force U* stay ; he staid w ith his
ifood will, ami did consent to the pirac}'. AntI
then another wiliiess is D. Crenyfh, who say*',
that May was s(» zeai<Mis in the maiter, that'he
siijil to him, " God damn him, he deserves ti> be
shot tlimuL:'! llie head.*
Sparke«5 was on board the ship, and !iad a
dcjii^ned end, and no eouipnisicn was used
towards him, sine*: lie had liberty to depart ;
hut the stayinjr bthind by ihc re**!, is a jrreat
evidence to induee you to believe they were
parlies in the clesis^n ; for why '-Ise shoidd not
they go ashon; as well as otlKT««, sinc« there
doth iiot appear any restraint upon them to
stay, especially when a gi^iitral wi»rd was
giTen, that those who wouM go on shore
should go on the deck, and a lH);»t was i-eady
to eurry them off?
Th«'y say.thej wanted a boeket in the boat,
and tliey szavcthiin one ti» l:i\e out the water;
thai is a plain i'\iilt nee iht y were williiijr to !
Ih' rid of th<»vi' th.tl were, nm udlnig to nujacfc !
with them; ;iud it' th"V had nor approved at!
the <le«'i'4n, tliex w<'rc noi hindered tnuii i»oing
i'l the lMi.1t. As for ihosi' that came fr.. iii the
Jaiiiis. iheie was no maniu r of force on them,
but they were *it't\t tVom the captain to :r-sist
the captaiu of the ( 'harles ; for those two shi[is
baviog lain near together at the Groyae, there
was some intelligence of such a dengn in agi-
tation, and these three fbrmok their own sbip,;
Every declared his design to some : And lie
told them what shares they should have;
and because he was their captain and com-
mander, he thought himself entitled to a double
share.
And then you have heard what was dune ia
the whole progress of tliis wicked desijpi;
every one of thcKC men had their share ; even
this \V. May, though he was sick for some
time, and was set ashore at Joanna, and at the
ship's return taken in again, yet he bad bii
share of all the prizes. \V. Bishop had Jiii
share, James Lewis had bis sliare, and Joim
Sparkes had his share ; and, says this yoanr
man, Philip Middleton, I had my share, whiu
was aliove an hundred pound, which wm
thought by them to be a good share lor a hoy;
and Sparkes took him at a disadvantage, and
having an opportunity, took it from him.
Now if there be a piracy committed, tboogh
contrived but hy one man, yet if otherado oue»
cur in it, they are equally guilty.
Now, though these pnsoners tell you, then
was a force upon tliem, it is a mere suggotioi,
without any manner of evidence ; but there if
evidence of* their consenting and confederatiBf
in this wicked enterprise.
Indeed there hath been a trial before, which
you have all heard of; for the city and nitim
have discoursed of it ; consider therefore the
evidence. You have a great trust repoeed ii
you, for you are not to act arbitrarily, bat yon
are accountable to God Almighty, to whoa
yon are sworn, and to tlie govemroeut for the
verdict you give. If you are not satisfied in
your conscieoces that the evidence is sufficicit
to find these men guilty, in God's name aoquit
them. But if you are satisfied ia tlie fuifi-
cieucy of the evidence to convict them, yod
most find them guilty.
CI. of Ar, Cr\er, swear an officer to keep
the jury ; w hicli was done, and the jury west
out to consider of their verdict. AimI, ia the
me-in time, the six i>risoners were agais v-
rai|7ned noun two several indictments; tbeooe
for piratically taking away a Moorish shify
and the other for committing piracy u|iOB tw9
Danish ships. To both which indictmesia
Joseph Dawson pleaded Guilty ; the other five
pleaded Not Guilty, and put them upon their
trials.
Then the Jury having been withdrawn •
little while, returned into court.
Foreman. If there be any evidence to provt
that John Spaikes consented to the rooiiiitf
awuy oi the ship, we desire ii nuiy be haul
ai^fain.
L. C. J. UoU. rie was with them at tbi
carrying off the ship, and at the Ukingof thi
several prizes, and had his share afterwarf^
What is c«msent:' Can men otiierwise deBBt'
strate their eonsent, than by their actioosF
Jurt^man, But we uuderbtand, my loffd|tW
481]
Jbr Fdony and Piracy,
A. D. 1G06.
[483
lie wu tried upon hb oonwotiiig to carry away
the ship.
Li. C. J. Hdt. What do yoa mean by con-
senting ? If a ship be carried away with force
troni the captain, divers piracies are committed
with her, one continues aboard and receives a
share «if the profit of ttie several piracies ; is
not ihat an evidence of consent to the piratical
desiijrn f Was it not pn)ved that many, went
out of the ship that were not willing to go on
Ihat design ? And that was with tlie leave of
the rest that remained.
Just. £yre. And one stoml on the deck, and
said with a loud voice, that tliey that will not
go, mav have liberty to |ro ashore.
Mr, VonyerM. No man was hindered but the
Doctor, being a aseful man.
L. C. J. Holi. When a ship is nm away
with, and people are aboard that ship so run
away with, that proves their consent, unless
they can prodnce evidence to the connury.
Just. Turttm. The captain was in his bed
sick of a fever at that time, and was not willing
to go with them, and they sent him away from
them.
Just. Eyre. And every man had his share.
Then the Junr consulting together a very
fittte time, agreed; on their verdict.
CI. ofAr. Gentlemen of the jury, answer to
your names. J. Degrave.
J. Degrave. If ere. (And so of the rest.)
CL vfAr. Gentlemen, are yon all agreed of
yonr venlict? — Jury. Yes.
CL ofAr. Who shall say for you ?
Jur^. Our foreman.
CI. of Ar. Set E. Forseith to the bar.
£. Foreeith, hold pu thy hand. (Which he
did.) Look upon the prisoner; is Edwurd
Forseith guilty of the piracy and robbery
whereof 1^ stands indicted, or not guilty ?
Foreman. Guilty.
CL of Ar. Look to him, keeper. What
goodj and chattels, &c.
Fftreman. None that we know of.
CL of Ar, W. May, hold up thy hand.
^Vhich he djd.) Is W. May guilty, &c. or
not gailty ? — Foreman. Guilty.
Cl.cfAr. Look to him, keeper, &c. W.
Bishop, hold up thy hand. (Which he did.)
Is W. Bishop guilty, &c. or not guilty 't
Foreman. Guilty.
CL ofAr. Loot to him, keeper, &c. J.
Lewis, bold up thy hand. (Which he did.)
Is J. Lewis gudty, &c. or not guilty T
Fort-man. Guifty.
CL of Ar. Look to him, keeper, &c. J.
Sparkes, hold up thy hand. (Which he did.)
Is J Sparkes guilty, &c. or not guilty P
Fitreman. Guiliy.
CL ofAr. Look to him, keeper, &c.
L. C. J. Holt. <ientlemeo, vou have done
extremely well, and you have done very much
to regain the honour of the nation, and the
city.
Then the Court adjourned to Friday next
the Gtb of November, two of the clock* in the
VOL. Xllf.
afternoon, on which day Edward Forseith, &c.
were tried upon two other indictments ibr se-
veral piracies.
An Abstract of the Trial of Edward Furseitit,
James Lewis, William May, William Bi-
shop, John Sparkes, (Joseph Dawson hav-
ing pleaded Guilty upon his Arraignment)
at the Sessions House in the Old Bailees
Friday, November 6, 1696, where were
present Sir Charles Hedges, Judge of the
Iligh Court of Admiralty, the Lord Chief
Justice Holt, the Lord ChiVf Justice Treby,
with several others of his Majesty's Judges
and Commissioners.
Aflcr several challenges made by the pri*
soners, of the persons returned upon the Jury,
these twelve gentlemen were sworn, vis.
Roger Mote, John James, Richard Rider,
William Himt, John Hammond, Abraham
Hicknmn, John Watson, Benjamin Hooper,
John Hibbert, Richard Chiswcll, Daniel Ray,
William Hatch.
Then the Clerk read the two Indictments
uj)on which they were tried, viz. one for
seissing, robbing, and carrying away two shipa
belonging to Denmark, on the 30th of August,
1694. The other for that they, on the S8th of
September, 1C95, in a place 40 leagues distant
from Surat, did forcibly and piraticiuly set upon
a Moorish ship, and take away her tackle and
goods, to a great value.
Then Dr. NcwtoHy one of his Majesty's Ad-
vocates, spoke to the Jury as fulioweth :
My I/ord,anfl Gentlemen of the Jury ; The
crime the prisoners at the bar stand charged
with, anil which has been opened to you
upon the indictments, is piracy ; which is
the worst sort of robbery, both In its na«
ture and its effects, since it disturbs the com-
merce and friendship betwixt different na-
tions ; and if left unpnnislied, involves them
in war and blood: for sovereign powers
and nations have no courts of justice afUrwarda
to resort to, as the suljects of princes have, in
their own countries, fur redress or punishment ;
but they ran only hsve recourse to arms and
war, which bow expensive, and how dangerous
they are, and what calamities and ruin they
carry along with them, no person can be a
stranger to. So that those who bring not such
criminals to judgment, when it lies in their
power, and is their duty to tlo so, are answer-
able, in a great measure, Itefore God and man,
for all the fatal consequences of such ac-
quittals, which bring a scandal- on the public
justice, and are o'fteu atU'nded with public
calamities. — It is not tlierelbre, gentlemen, to
be supposed, that wise or honest men, (and
there are none who would be thought to be
otherwise) who love their country, and wish ilf
peace and prosperity, would be guilty in that
kind. — Gentlemen, this piracy- was wgun ia
Europe, carried on throii^fh Africa^ and ended
in the remotest Indies; so that, in a manner,
all the world is concerned in this trial, and ex*
8 WILUAM III.
483]
pects and denmidf justice of them, if they are
guilt}', at yoar haads.
Then the Witnesses were prodaoed to prore
the f'act!( chared u{ion the prisoners, \iz. Jo.
Dean, David Crra^b, Phil. >]iddletnn, and
others ; who ffuVfy pntreil a!;ain«t them. That
the prisuners, with sevt'nil other wicked per-
sons not yet taken, did t'orcihiy take away the
ship Charles the Seeund from the l»%«fiil com-
Trial qfJoteph Dmescm and oiken, [484
CI. of Ar. Edward Foraeith, whUhnc yw
to say, &c.
Forteitk, I am an innooeiK oiau; — and
went on to justify himself, Ace.
Judge of' the "Admiralty. Yoa and the rest
of the pr^wners at the bar bare had a rery ftir
trial, and been fully heard upon your defence ;
but the jury, vouV country men, upon whom
you put yourselves to be tried, have fimnd yon
mander, captain GilMSfm, with a piratical de- ' ^ilty: so that the insisting upon 3*o«rj»tifi
siini; and in the said ship did afterwards ciim- i cation cannot now avail vou any thing', tba
mit several piracies. At the Isle of >lay they I venlict heini? ffiven ; but if^yoa have any tfain^
took three Encrjish 4hi|is. From thence they
went to the cnasi o( Guinea; and when some
of the natives came on iMiard with their i[[old, to
trade with them, they tM>k away their |Fold,
and carried tlieni away for slaves. And then
Went to the Isle of Princes and took two Danish
shi|i8, and took out what was in them, viz. 40
pounii wei«;ht of t;o1d dust, and other inerchan- I
dize ; ami the}' offtred to restore one of the
ships to tlie master after they had robbed her, i
but the master said she was insured, and he '
would not take her a^in. And afterwards
they burnt one of the ships, and carried away
theoiher. Then they went to Bob's Key, at
the mouth of the Red Sea, waiiine for the
Blocha fleet, which one night passed by them
nnseen ; but were inibrm^ the next day that
they were ^ne. And then calling' a oonncil,
they agreed to follow them ; and aooordingly
went after them, and came ap with one of them
which was about 950 too, and with small re-
sistance took her, and put some men on board
her, and took gold and silver out of her to the
▼alue of 30 or 40,000/. with other merehan'
dize: and afterwards met with the riiip called
the Gunsway, and robbed her likewise of all
her furniture, to a fery great value. And
about a week after, they shanKl all the prizes
they had taken ; and some had 1,000/. aome
had 800/., some 700/. some 500/. every man in
the ship his share, as they thought they de-
sened. And it was particularly proved by the
etiflence against the prisoners, that tb^liad
ttieir shares. [The more particular relation of
which is already printed at large in the fore-
going Trial.]
When the king's evidence had done, the
prisoners were permitted to say what they
could in their defence ; but the same appear-
ing to be very weak, the lord chief justice Holt
summed up the evidence ; and the jur^- goin^r
out to consider their verdict, after a ^hort sta} ,
bronufht them in all Guilty.
Then tho Court adjourned to the 10th of
NuvLMuber follo\^ini:. '■
AfitT me Trial of John Miirpbry was over, .
tIjL' P. rail's wiTi: broil gill to tlu* U:iV. |
C/. '/ Ar. .losoph I>aw?ion, ymi by xoiir I
own ii):m's».ii>ii are convicteil ol pirm-y and
r« Mjirv : w l'..ii have you to »a\ why sentence
%»{' lirailj sli:ii; not be passed u|K)n you accord-
inu' »" l'i« ^'
Ujuioa. I iiubmit myielf to the king ud the
faonouraUe bench.
to otfer in arrest of judgment, or can anew any
cause v hy tbecfuirt sliould not proceed to^ivs
judgment accordin;; as the law direct^ agvort
persons convicted of piracy, yoa shall hare
liberty to speak, and will he* heard.
Fnri^itk. I desire to be sent into India to
suffer there.
C7. of Ar. William May, what have yoa ts
say. S:c.
'M0}f. My lord, T being a ver^' sickly msa,
never acted in all the voyage 1 bave'serrfd
my kincT and country this thirtv years, and m
very willing to «erre the East-India compaiiy
where they please to command me; and d^
lire the honourable bench to consider ny
case, and if I must sufler, I desire to be tell
into India to suffer there.
CI. ofAr. William Bishop, what hare yw
to 8ay,'&c.
Bishop. I was forced away ; and wha I
went, was but 18 years old, and am now M
21, and desire mercy of the king and Ibl
court.
Levis. I am an ignorant person, and km
myself to the king's mere v.
Sparkes. I leave myself to the king's mercff
and to the honourable court.
Judge of the Admiraliy. JoMph Dawioai
you stand* convicted upon four inaicf ments, by
yoinr own confession, for piracy and robbcrf.
And yon, Edward Forseith, ^^ illiam Slay, Wu-
liam Bishop, James Lewis and John Sparkft,
having put yourselves upon your trials se-
oording lo the customs and laws of your om
oountrvi have been ibnnd guUty npon tbrft
aevend indictments, for the same detcstaUe
crimes committed upon the ships and goods «
Indians, of Danes, and your own f^low-Mb*
jects. The law for the heinousness of yoar
crime hath appointed a severe punishment, by
an icnoiniikiuiis death ' and the Ju^incBl
whicn the Lw awarils, is this :
^ Tliat you and eiery one of you be taktt
* fn>ni hence to the place from whence yM
- canio. and trom thence to the place of eit*
' cation : arid ihat ilicre you, and every one rf
* you he lians^ed by the necks, until yoa ni
* every one of you be dead : and toe Loid
* have nuTcy upon you.'
Acconlin*: to this srMitence, Edward FonHlb
and the nst were executed on Wednaitoi
Nofember the .\«th, 1696. at Ezeeatioo-DML
the usual phwc for the execution of r"--^
485]
Trial qf Captain Thomas Vaughatu
A.D. t69&
[480
CL tfAr. Make proolamiLtioD,
Cr^r> O yei, O yea, O j&. All roanner
of pcrsotus thai havo aoy Ihlng more to do,
393. The Trial of Captain Thomas Vaughan, at the Old-Bailey,
for High-Treason on the High Seas : 8 William HI. a. v.
1696.*
XHE C<mri being sat, at which w«% prf^seat, Sec. and were adjourned to thio how, dranF
sir Ckartet Hedges, jtM^e of the high court of near and gire y oar attendance. Ood Mfe tbt
a^mirmitjr, the brd chief jusliu-e Uok, the Ion! king.
diiif inatice Treby, tbe lord chief bafon Ward, rp*^ .. p^„^ w„^ ^^^ ^l,^ ,„,^ , .•
Mr, Juplice Tart/o, and other* of hU majestjr^i th J^n^«S!^likS Tf^l^ wJ
i ; the court pioceeded on this ?»® appearances marked. And witnwio bfl^
' ^ ing sworn in court to gi? e endence to them
against Thomas Tiiughan, they unthdrew t^
hear the same.
Tlien the Keeper of Newgate waa ordini
to bring his prisoner, Thomas Vaughao, to thy
bar. (Which he did.)
CL ofAr. Thomas Vaoghan, hold up thy
hand. (Which he did.) Thou standest in-
dicte<l, Sec. How sayest thou, ThomM
Vaughan, art thou guilty of the high-treasos
whereof thou standest indicted, or not guilty P
Vaughan, Not Guilty.
CL rfAr. Culprit, how wilt thou he tried ?
Vaughan, By God and this country.
CL ofAr, God send thee a good delif erance.
And then the Court proceeded to tbe Trial of
the Piratea, and ga?e notice to Mr. Vaughan to
prepare tor his 'Aial on Friday next, the 6th of
Nofember, 1C96.
l^mitmhtr 6, 1696.
CL of At. Cryer, make proclamation.
CrycT, O yes, O yes, O yes. All manner
of persons that have any thing more to do at
this sessions of Oyer and Terminer, adjourned
over to this day, drsw near and eive your at-
tendance. And you Hheriifs ot the city' of
London, return the precepts to you directed,
upon pain and peril which will fall thereupon.
Then the Under- Sheriff returned the PrecepU.
CL qfAr. Make proclamation.
Cryer, O yes. You good men of the city
of London, summoned to ap|)ear this day, to
try between our sovereign lord the king ^nd
the prisoner at the bar, answer to your names
as vou shall be called, every one at the tirst call,
i and xave your issues.
Tbe whole iiannel was called over, and tlie
appearances ot those that ans«vcri-d recordecl,
and the defaulters were again called over.
Mr. Fhipps.* Will your lonlsliip please to or-
der that two men may be liri)ii«;lit from tbe
Marsbalsea, on tbe beliulf of tlic prisoner ?
• That the at. 7 W. S, e. 8, fxtends to per-
sons indicted under st. <2B 11 . 8, c 15, for high-
• iAfs&t Balk. 634, and Hott, 689. Bee alio
EiM's PL Cr. c. f . B. 40. 43.
" Captain Vaughan was not an alien enemy ^
bat boing a natural born subject of thia realm,
ha became a traitor ; for that be was put in
prison, for thai be answered, and with his life.
Bist it was ibr tttat act of hostility merely,
Wtlh reigETd to his character of a luhject he
remained till the moment of hts execution, as
if that act hsd never been commilti-d. There
k very little light to be piti cured from our
hooks, to assist ua in our incfuirvt hew far a
neutral joining in an act of hoetifitv is to be
considered ai ha^ ing acquired the character of
alien enemy. Tbe tubject ^as iud i recti y dia^
csMed tn the case uf captdti Vaug^h^ti, to which
I have ailuiletlf Ele was cliar£^^tl in the imUct^
ment with adherini^ to the king's enemies bj
cruising * cum suh'Jilis fJallicii ;' the ^vt was
that many ef his crew were not natural born
mbjects of tbe French king, but Hollanders. It
was luade a qoeition whether tbe llollancters
ahould b« called *• subditi Gallici/ and diou^h
the point was not authoritatively decided be-
«a«we some of tbe crew were certainly French,
whidi was sufficient to support the iiMJictment,
y«tit Wfti held by Holt^C. J. and agretd to by
the rest of the courts that the HoHaaders by
Accepting a eommiiaionlrom tbe French king
hacaflM * subditt Gallici/ and so rfmained
during the continuance of their service in a
■laie of qualified suhfection arising out of the
'ot aiMl determining with it. This, had it
the very point in judgment, would have
\ a great way towards deciding the pre-
icat question, 'tike commission under which
tbe plaintiff being a German acted was put an
end to by the capture of the frigate, in which
he was.- After that time he had no- opportunity
of continuing in the service of the state of Hol-
fendy and his terofiorary character of alien
enemy ceased and determined with the autho
rity under which he acted. Captain Vaughan's treason committed on the hitrh seas, see Eas^s
case as far as it '^oes draws a line and fairly Pleas ofthe Crown, c. 2. s.4:i. Whetherciirrup-
■wriEB out wbeu that character liegins and tion of blooilis wmn^htby jud^l^cntoft^ea8o'h
when it shall end." Per Byre, Chief Justice committed <»n the hii^h si'».<, st-e Lmisi u^ above,
in giving judgment in the case of S|iarenburgh : and F(Mi«r*s Cruwii C^us^-n, .Sec. there cited, pp.
V. Bunmynn. .1 Bos. and Pul. Kdp. | SSS. S36. 1 U. P. C. c. 27. iSalk. 8M
487J
8 WILLIAM UL 'Trial nfCajdain Thtmas Vaughan, [488
L. C. J. Holt. You shall have an order.
Then the court went on the trial of the Six
Pirates ;* and afler the trial was over, Thomas
Vanghao was called to the bar.
Vaughan. Mj lord, my irons are very un-
easy to me, I desire they may be taken off.
£. C. J. Holt, Ay, ay, take them off.
Mr. Phipps. Jf your lurdship please, we
kave some doubts as to the iiidictmenL
- L. G. J. Holt. If you have any exceotions,
you ouffht to have made them before tne pri-
floner pleaded to it.f
Mr. Phipps, I thought you had allowed it,
my lord, in former cases.
L, C. J. No, we did not allow it as of rig^ht
due to the prisoner ; the exceptions should have
been made before the plea. You were indulged
in being heard at first in the cases of Rook-
wood, Cranbunie, and Lowick : but it was
not the intent oif the act to alter the uietliod of
the proceeding, and so upon consideration bath
it been determined. Tlie prisoner hath time
Ipven by the act to make any exception to the
indictment before he pleaded; but you may
move what you will aAerwards in arrest of
judgment, if it be material.
CL of Ar. Thomas Vaughan, those men
that you shall hear called, and personally ap-
pear, are to pass between our sovereign lord
the king and yuu, ufKin trial of life and death ;
if therefore you challenge them, or any of
them, your time is to speak unto them as they
come to tlie book to be sworn, before they lie
■worn.
Mr. Philips, There was one man here that
desired to oe excused, because he was on the
^rand-jury ; therefore it seems there are some
returned upon tliis jury that were on the grund-
jurv, which I think ought not to be.
L, C. J. Challeui^e ibcm then.
Mr. Phipps. We do not know the men.
Then the Panuel was called over, and a
f^reat many challenges made, and the twelve
men that were sworn, wen; tliese: Edward
Leeds, Nath. Green, Hen. Slierbi-ook, J. Sher-
brook, T. £mms, Peter Parker, Caleb Hook,
Jocelinc Roberts, Thu. Parker, Peter Gray,
Roger Postoo, VVoolley.
Cl.ofArr. Cryer, make proclamation.
Cryer. O yes. If any one can inform my
tordstbe king's justices, and the kiofir's serjeani,
the king's attorney-general, the kiii^'s advo-
cate in his high-court of admiralty, before this
inquest be taken of the hi^h-trea&on whereof
Thomas Vaughan, the |)ri.'>ouer at the bar,
stands indicted, let them come forth, an<l they
shall be heard ; for now the prisoner at the bar
stands upon his deliverance ; and ail others that
are bound by recognizance to give evidence
against 4 he prisoner at the bar, let them come
ibrth and give their evidence, or else they for-
feit their recognizance.
* See the preceding Case.
+ East's PI. Cr. c. 2, s. 4G. Layer's Case,
•n/rfl, A. D, 1722.
CLofAr. Thomas Vaivfaan« hM optby
hand. (W hich he did.) Yoo that an twAta,
look upon tlie prisoner, and bearken to bis
cause. He stands indicted by tbe Dime if
Thomas Vaughan.
«' Whereas, * That before and until thettb
day of July, in the 7th year of the reign of oar
sovereign lord king W. 6, there was open war be-
tween onr said lord tlie king, and Lewis the
French king : And that tbesaid waroontinnedaa
thesaid 8th day of July, in tbe 7th year afbnnid,
and doth still continue. And that tor all tbe lias
al'oresaid, the said Lewis tbe French kin^ vai
his subjects were, and at present are enemm of
our said lord the king that now is : And that at
the time of the said war, and before tbe said
8th day of July, in the 7th year aforesaid, lbs
said Lewis the French king set out, amoDSit
others, a certain small ship of war, called as
Loyal Clencarty, of which Thomas Vaughn,
a subject of our said lord the king that now ii^
was commander, with several French Mil(|eoliv
enemies of our saiil lord tbe king, to the nnate
of fitUen persons, in a warlike manner, to tab
and destroy the ships, goods, and monieB of
our said lord the king, and his subjccis, lai
against our said lord the king, to wage wir
upon the high-seas within the jurisdk.'tioDof
the admiralty of £ugland. And that at ths
time of the said war between our said lord tbs
king, and the aforesaid Lewis the French kiag,
Tho. Vaughan, late of Galloway, in the kisf^
dom of Ireland, mariner, being a subject of oar
said now lord the king, as a false relNfi agaiMl
the said king his supreme lord, aud not hav-
ing tiie fear of Go<l before his eyes, nor coiui-
dering the duty of his allegiance, but beiof
moved and seduced by the instigation of tbe
devil, aud altogether withdrawing the oor*
dial love, aud true and due obedience which
every true and faithful subject of our lai'
lonl the king ought by law to have tuwardi
the said king; and the said war as much 81
in him lay, against our said lonl the kiugiie-
signiu^ and intending to prosecute and asMi;
the said l1io. Vaughan, on the said 8ib day
of July, in thesaid 7th ^ear of the kiug being •
s<ddier a-board the ship of war, called the
Loyal Clencarty, in the service of the tisd
Lewis the French king, and being then oo the
high-seas, within the jurisdictioo uf the adon-
ralty of England, about fourteen leagues t'roB
Deal, did then and there by force and snMi
falsly, maliciously, wickedly and traitoraudr
aid, help, and assist the enemies of our M
lord the king, in tbe ship of war called the
Loyal Clencarty. And at^erwards the lui
Thomas Vaughan, in the execution and per-
formance of his said aiding, helping, and as-
sisting, maliciously, falsly, and traitoroialy
saiieff a cruising to several maritime plMtf
wiihin the jurisdiction aforesaid, by force «rf
arms to take the shins, goods, and money of
our said lord the king, and bis su„- .
against the duty of his allegiance, tbe p«fl*if
♦ East'i PI. Cr. o. S, s. 54.
I
I
I
onr said lotd the king^ anrl also against a sta-
ttiDe m thtt cn&fi made aod provitled.
*^ And tbe siaid jurorc ot our fsaici I on I the
Ua^f ujion iheir &aid ualhs, farther represent,
ttiat the aftire^aid Thorofts Vuiighan, a^ a false
iraitDr ai^in^l our said lord tiie king, further
ili^ii^'Tjin^, practising, and with his whole
Hitendinj^ the common peace and Iran*
i this king^dam of Eng^lund to distiirU;
umi a vtarand rebeUion against the said kin;^
ii|)Oii the hi|(h-seas, within ihu jurisdictiim of
the admiralty of Kngbud, to niov e^ stir np^ and
procure; and the saicl lord the king, front the
tit!e, honour f royal nanie, and imperial crnwo
©f hts kinifdom of Enghind, and dominions
upon the liii^b-aeas, to depoi»e and deprive; and
miserable slaughter uf the sul>jccts oflbe snid
lord the kini^« of this kingdom of Enfifland,
Wftm tbe hij^ii'Seas. mul within the jurisdiction
aferesaid, to cans* and procure ; on the «uid
8tli day oi' July, in tbe said 7th year of the
king't II pot) the bjifh-seAs, atmut fouileen
leagues from Dfal^ and within the domitiion of
the crown of Eiiij^Undf and within the jurisdic-
tion of the adintriilty of England aforesaid^
fabiyi raaliciooKty, deviU^thly, ami treacher-
ously^ by lorce and arms, with divers other
l»ke rdjelaaiui traitors (lo the jurors unknown),
war 8|rainst our sniil now lord the king", pre-
pared, prompted, le*ietl, and waged. And that
the said Thomas Vauf;baD in pertormatice of
Ins «aid war and rebelhon, then and there, by
force and irms, maliciously, wickedlv* aod
openly assembled and joined himself with se-
▼eml' other false traitors and rebels (to the
jorara unknown) to the number of titleen por-
9ott% beioi; armed, and provided in a warlike
nMiiitr With guns and other arms, as well of-
ISniive aa deteosive. And the said Thomae
TfttifphaD, then and there, being: aboard the
■id ahtp tif war, called the Loyal Clencarty,
afliemMeil with the other iahv vcbeh und trai-
tors wi albre^aid, maliciously, wickedly and
traiiorously mailed a cruising to several inari-
placesi with the aforesaid ship of war,
letl the Loyal Clencaity, with an intent to
a|Miil, and carry away the ships, go-ods,
money, of our isaid lord the king, and hi<»
eots, hy force and arms, U|Km the hi^h and
teas, wiihiu the jurisdiction afore^^aid ;
the duty of his altei^iance^ the jieaee of
•aid loni the kiiisr. his cVovvn and diif nities ;
iikewi^ against the form of a statute id ihij
rand provided." ^
Thomas Noden, > j
S4MUEL OlDHA»|, J ^"'^"'
* Tbe Indictment in Latin runs thus:
^ Jurat* pro [>om* Rege su^>er «acram'
. pnesentant, quod ante Sc continue us4|ue
rtav' diem Julii, anno re{rni doiii' nui^irj
niUelmi tertii, Dei f^ratia AngF, 8col\ Fratic\
|n#i Hibern* Ret^s, tidei defenjior*, 6cc. 7. fuil
rlicUum aperturo inter Pom' Hilliehnum nunc
^Jic^ra An^l'j iScc. et Ludoricum Kei^cm (ial-
d^ite bellufo tllud eod' B. ihe Julii,
t€f i«pfidtct\ et semper postea hucusq'
Upon this Indictment he hath been arraign-
ed, and upon this arraignment he hath pleaded
not guilty \ and for Iuk trial he haih put him-
self upon God and bin country^ which coiintrj
you are. Your charge is lo enquire whelbep
contiDuat* fuitj et adbtic e^istit^ «[a<>dqne j»«r
totum tempus praed* dictum Ludovicoi Hex
Gullicu!^^ et ejus subdit', fuer\ et adhuc exis-
tuiit inimici dicti Doni* Regis nuuCf ac quod
tempore belli illiuSf et ante pricdict* octavam
diem Julii, anno septimo !iuprad\ diet* Ludovi-
cus Rex Gallicus (int' aVlquimd^ navTcul" ar-
mat', vocat* * I^ Ltiyal 1 leiicarty* (cujus Tho*
Vaughan sulMlit^ dicti Dom* Regis nunc Aog'l',
^cr.adtunc fuitca|>itaneus)r*im quamplur* s^ub-
dil* Gallicis, iiiimicis dicti Dom* Regis nuaCt
ad numcrum 15, personar' rf(»tei\ [>rxp:ir«rit
ad naves uc bona, catall*, et denar* diet* Dom' ;
Regiii nunc Anul\ &c. et snbdilor' liunr^ super
alto marl, ac infra jnrisdict* adinirnliiatiH Angl'
moilo guerrino capipnd^ et fipoliand', et belluni
pried' contra diet* Dom* Regem nunc super
alto mari, ac infra jurisdiction* admirar Angl'
pried* gercud* : Quodque tempore belli pT»d'
inter ipsiim D«»m' Regem nunc, etpritd' Ludo*
vicuni Rpgeoi Gallirum, Thomas V au<rhun no-
per de Galloway in regno Hiljeru' nauta, exla*
tens siibdit* ejiisdem Dom' Regis nunc Angl*
Sec* ut laUuiS proditor contra eundem Dum'
Regem nunc, $upremum Dom' suum, timorem
I>ei in c^irde sno nou habenn, nee ilcbit' ligeanc*
sme ponderans, sed in^t^galione diabulica mot'
et seduct\ cordialem dilectiooem^ ac feram et
debit am rdiedientiam, qiius quilibet verus et fii-
dehs subtlit' dict'Dom' Regis nunc erga ipsum
Di>oa' Regem de jure gerere lenetur, penilut
siibtraliens, ac mac hi nans et intendens, quan-
tum in se full, beltum pnedict^ contra dictum
Dom/ Regem nunc prosequi tt ausEiliari, idem
Thomas Vanghaii dtcto B. die Jutii, anno regni
diet' Dom^ R^gis nunc 7. supradicto, vj etarmis,
&c. ijuper alto mari in quiHlam loco circa 14
leitcaH a Deal distante, ac infra jurisdictioii'
admiral' AngP, seipsum pnefat' Thomaoi
Viiugban ut militem (Angl' a Soldier) ad bell am
praVr contra diet* Dtim' Regem nunc geren'
etprosequen\ inserTilium ipsius prtefat" Ludo-
*ici Regis GaUici^ in navicul' armat' pr[ed\
vocal' * Le Loyal Clencaity,' falso, matitioae,
neqtii$*iiine, et proditoric posuit; et i|uod ipse
idem Thu' Vauglian in naticul' armat' praed*,
vocat' ^ Le Loyal Clencarty/ adtunc et ibidem
sic exi^tenS vi et armis, ^c. adtunc ct ihiflem
super alto man Dried\ ac infra jurisilictiou' ad* '
miralitatis AugF pited\ dictis inimicis dictt
Doiti' Regis nunc, in dicta naviculu armala,
T<K!iit* ' Le Loyal CSencarty,* adiunc et ibidem
scilicet exi^ten*, fidso, malitiose, uequissime, et
pro-ditorie fuit adliarens, auxilian^, et ctimfbr*
tans; etquod pried' Tlio' Vaughuu in execu^
tion^ et performationeadhfesionis, auKihationis,
et comfortationis sute profd' postea^ scil' dicto
8* die Jnlij, anno supradicl\ jbidc-^in super alto
mari prard', ac inira jurisdictiot/ adnuj-alitat'
Atigl)«e, simul cum dtctis inimicis diet' Dom'
Regii aunc^ in navical' armai' pned', vocal*
491J
8 WILLIAM III.
Trial (if Caplaitt Thomas Fot^Aon,
t49l-
liti In! guilty of tl>e hi^h- treason whereof he •
fllaiuls iti(lictv<l, or not j^uilty. If'you tinil biin
guiliy, y<Mi iirc in enquire wli<it g'o<Mls or chut-
IrK funds or tcurriientH he hail at tlie tin;c of
the lii^h trr-uMHi coiiuiutttNi, ur at stiy time
siiicn. if y (III n"(i l.iin guilty, you aiu to eii-
(]uiro whcihcr Im^ fliil tor it. If you fnid that
he fled for it, \on are to enquire of his goods
nnil ehiiiti'U, :is if yon had found hiiu guilty.
If you iitid him not guilty, nor that he did fly
foritf y<oi arc to suy so and no more; and
hear your(MidtMu*e.
Mr. Wliiiukcr. May it please you, my lord,
and tli(^ gi'iittcnicn of the jury, tlie prisoner at
the har, 'riioiuas \ uu<>;lian, stands indicted itot
higli-troasdti: ihal \vlhT4>ns on the Olh of July,
there was a wax iietx^cen his majesty the king
of l'jni;l.iiid\ and \av\\W the French king;
nniong*it other warliki' preparations that the
Freneh kiuuf did lo.iko, hc> «lid Sft forth a ship
ealknl tht.* Ii0\i.l C'lcnearty ; that the prisoner
at the liar, as a falsf traitor, did list himself
alM>arfl this ship ; and (mi thi* hii>h-seas, aUiut
eleven leai^ncs tVoni Peal, tlid traiton>n:>ly aid
the kint>*s (muu^ii'k to t:ike the kiuif's ships.
This is said ;o he a«4aliist the duty of his alle-
ffianei*, and liit* pen c ofnur Nowitign hird the
king, his eio\ui and dignity. He Mauds fur-
ther indifted, lor tliat his the s:iiil Tliomas
Vaughan, with sereral otiier fitJae Cnilmai did
levy war, and arm thcmiielves with armt. of-
* liU l<(i\ :*>! ( ltnr.irt\ ,*ad>iini: i:t iliidfiii exi>ten'
nd tpniinplnrMoiMs niariiiuiosin failem navicnP
arni.li', voeal' ' ia' Ijm nUMootarty,* in «'\plora-
lioiH' ( \oi>lieo cruMUii) va intiMitii>ne, ad
fensive and defensive, and was oniiaiog oi the
high-seas, oif of Deal, with an ioteni to.taka
the king's ships, and to kill aod dastniy tba
king's bubjects, against the duty of his allc^
giange, and ihe peace of our sovereign lord tbs
king, his crown and dignity. To this indict-,
ment he has pleaded not guiliy. We shall aO
our witnesses, and prove the fact, andduuk
not hut you will do your duty.
Dr. Littleton. Gentlemta of the jury, yw
have heard the indictment opened, asalso whil
sort of crime the prisoner at the bar standi
charged with, viz. That be, being a subject •(
the crown of England, has, together wilk
his accomplices, anne«l himself iu a miUtary
way, to murder and destroy his fcllow-sub|ecl^
an J as nnicli as in him lay, to ruin bisoatita
country, by rniniug the trade and traffic,
wliich*is the threat support and riches of the
nation. And that this crime tnight be conssn-!
mate, he, with his accomplices, has done whil
in him lay, to dethrone and disjHissess bis H'
cred majesty ; as well knowing it was in ^aia
to expect to make the nation unliappy, as kng
as we enj(»y so great and good a prince, iit
that you are to look on the prisoner as an ese*
my and traitor to his own isouutry ; aimI sot
ravit, ordinavit, levavit, &gessit ; 6i qood idea
i homas A'aughsn, in cxecutioue & perforaa*
tiouc guerra.' V pruditiouis suae prted* adtoned
ihideni, scil' pra:d' octavo die Julii, anno 2
llonr Utgi**, et suhdiivr' sudi** super aUti m.iri
pru'd', ae mini ii'.i'iMl.eiiou* jir.i'il\ \i (tannic,
\r. nialitit'se, nnpll^^iu)o, et pmditorie n.wi-
i^;i\it. ronira iivTcaor* stia; dthiiuni, ooiilra pa- I
vi'Ui ditti Dom* lit'Li** niuu\ < uron* v\ di>;niiat*
saa<>, \t'. nii-i.on i'i>nir:\ foimiuu siaiut' in I
hnjusuiiiiii easu imI'.i' vi |'i«>vis\ \e.
" l-.t i,n' pi.itl'. iirwihi'lo Dvuu' \lv^v sujK'r
sarr.in' snun pMil' iiiiiTUis p-:(M'nr, tpi-.xl
I'LiiT r \ .ni'^l...ii, ut lV.Isii"» pio.'iiur etuitra
d..i' p. Ml* lu..*M»iuno .\j'i;l\ .\i". sapriur
l»Mur Tun* mIliuis i>..u'lii!);ii<s. p.ai-iii\ii'<. et
|.»i.t ^ I MM Ml' ml. n^^jvii'i in vi t MiiM..oriCM) iran-
nnedand' navts« hon\ rn air et dcnar^ fjusiK m j snprad\ super alio nuu'i circa 14. leucaf i
Deal distanie, ar infra juiisilictiou* admiralittf
An;^r in ilicta navii'ul' arroaf, vocat'' Le l/nd
('lenrart\,* vi ^ arniis, &c. cum quanpnr^
nliift fnlsis r«fhellib' & proditoribus, jur* praf
ignui' ad numcrnin 15. {>ereonar', modo ffuo^
riuo armat' V arraiat\ viz. tormeutis, & u' ar-
mis, taui inv.isi%is,quam defensivjs, vi& snail,
\i'. la!^o, malitiose, 6c prodiiorie, adtnnc fe
ibitloin eongregat' & assemblai* €vMn\
M'ipMun sinnl* arnial' Sc arraiat', malitioiib
piodiu)r\ \ ap«^rte asscmblavit & conjuaxil; i
ipio>l pr.ed* 'r. Vaughan adtunc .Sc ibid* in 4ieli
na\icur arnvit', u»cat* *■ Le Loyal Cleocartv,'
riiia diciis al' faKis rebellibus & pmdiloiw'
(>iLMiT prjEtciitn) ;issemblat' exiateu*, poUts,
soi.* dicto H. die Julii, anno 7. supradict,' luftf
alio m.:ri p'.ied'. ac iufr.i domin* coron' Angbib
\' inf-M j.ir;sJiction' admiialitat* Ao^y pnsd'i
V .on! I'uin h.h\^ jV rebell* 5( prmlitonb', in na^
1 ii-ai* arn:..t' prad'. vocal* *Le Loyal Clencartj,'
aJiitnc \ ibidcai. ail quamplur' locos maritinifli
in vaiit-m n.iv.cu;* .amai', \oi-ai* * LeLsjril
fiiniurtx.' ;ii ixpiuraiion' (Angl* cruiu»g)9A
l.iitiUu'ni- ud pr«i!and\ s]ioliaiid' 6c aspomnf
nav.>. l'-^u'!'.c.iia!r, Vdenar' dicti Uom* R^gili
\ s-Ks..;' s.irr* super alto mari pra:d', aciu6a
jui ts«!iciion* pr^\lici\ vi 6c arrois, 6ce. malilinWi
, ni\i;n>Mn'iO. V pr.^dicone naiigavit, eoiM
l«^e.:nc' snx i'ch;i\ contra paceiu dicli Di*
Uc^» nunc. i\>rou* S: dlgnitai' suss, &e. ■M'
noa coiitia Mrmam sutnt" in hnjoiiNdl fl*
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luin «;namplur* al*
!..•>.* ivl«« 11 :lf \ pioditonb'.jur' pr«d' ignot',
gticiiam conu« diet* i>ott* Ivegvoi auae ^-
Jhrm^ Tr^iion on ike fligk Seas.
only «s bat umie of the wont uid most dan-
ireroaiCDeniMt) tinoe he beings a snbject of
theee iahuids, was the better able to spy out onr
weakueMM and defects, and thereby to do us
the greater ndachief. It is not to be expressed
what rain and deaolatioo it would have cauKed
to this nation, had this man and his accom-
plices brooght their wicked intentions to eflfect.
And all this wis done to aid and assist the
grand eneny of Cbrislendoin, and of our own
country in particular, the French kinjsf. There-
fore, as yon are lorers of your kin^ and coun-
try, and voar fellow- subjects, whom the pri-
soner ana his accomplices >vould ha\'e dosti-oy-
cd ; I am sure yon will take care to do the oh-
tion Justice, and that he be brought t'> condign
punishment. Gentlemen, ther^ is one tiling- '
further that I most not omit, viz. That the
pritfimer at the bar being in custorly for these
very crimes about a twelve- mnnth' since, did
not' think Ht to trust to his innocenry, nor to
his pretended French extraction, hut the day
before he was to he trie<i, he thought fit to
break prison, withdi-aw fmm justice, and run
his con lit i*y: whicii, tliough nut a c<Mir<*ssion
ind full proof, yet is a great evidence of his
Ifuilt.
Stil. Gen. (Sir John Hawles.) May it plense
your h)rdsliip, and yon gcntleniFn of the jury,
the prisoner at the bar, Thomas V!in«^han,
stands indicted for two sorts of tn*ason : tlie
one is fur levying war against the king, the
other is for aiding and abetting tlie king'ti ene-
mies. And to pro%-c the first, the lev^ ing of
war, we shall pn»Te that he was a captain of a
French ship, called the Granado,of St. Maloef: ;
and tliat with that ship he took and carried
away many of his majraty's subjects, and took
several merchant shins, and carried them to
France. We shall liKewiiM; prove that he was
captain of Another French ship, called the
Layal Clencarty, with which he was cniising
nflfofDeal, where we had several shi|>s lying
at the same time: and there he being on
board the said ship Clencarty, was taken pri-
soner, with a commission, by which he was
ooBStittited captain of the Loyal Clencarty,
under the hand of Lewis the French king.*
And to prove him aiding and abetting to the
kmg'9 enemies, we shall prove ngaion him
thb particular fhct ; that he and his accom-
plices did in the year 1692, come to London,
aod went to Tower- wharf, to encj^uire what
vessels were ready to ^o down the nver ; and
there was one laden with piece-^oods, and he
put himself, and several other of his accomplices
into this Tessel, to go down the river; but they
had contrived the matter, and brought it ao to
pass, that thev tell on those men who had the
government of the ship, and carried away this
vessel to France. Now, if this be true, the
• ** The fact whether war or not is triable
bj the jury, and public notorifty is sufficient
eridence of the fact." Foster's Dtscoune, 1.
c. 9, s. 19. Peake's Law of Evidence, c. u^
I. 9. East's Pleas of the Crown, c. 3, s. 20.
A. D. 1696.
[4M
prisoner is certainly guilty of aiding the king's
enemies: and to prove lie was guilty of this,
we will prove to you, that even in France,
where he was at |)erfect lil»erty, he owned lie
was the contriver uf all this, and that he had
a thousand piiuufl for his >hare of what was
taken from our merriiant.s. If we prove these
two facts against him, I dnuht nut hut you will
find him guilty. Wo will call niir witnesses.
CI, ot'Jrr, ' T. Ktrtington, Jlicrh. Crouch,
Samuel OMIiam, Juhn Huh. Noden.
(Who appean'il, and were suorn.)
Vuftc/utn. W ith sub.iiisMiou to your lord*
ships, and the honourahh'- hencli, I he^ that
they may be put ajs under, out of hearing of
one another.
1<. C J. l^^t it ho so ; thou:;!) you cannot
insist upon it as your ri^ht, but only a favour
that wc may grant. *
Mr. Cintper. Srt up llichani Crouch. Is
your name Kirharil Crouch ?
Crouch, Yes, Sir.
Rlr. Coicpcr, Cive my lord anil the jury an ac-
count of what you know uf the ship Coventry
taki:i;r of th<; Clencarty, and what you know
concenung the prisoner at the bur iu taking of
hcri*
Cnmch. We weighed our anchor about
four oVh»ek.
>Ir. CuTt'jjf.r, Where were you ?
Crouch, \i the Nure.
Mt. Cowper. Jn what ship? ■
Crouch. The Coventry. After wc had been
under sail a matter of an hour, we eanie to an
anchor with a little wind ; so, sir, this Thomas
V'aiighan met with u couple of pinks, they
were sniull vessels, that he <Iesigne<l to take i
hut he saw us, and so lay by all night.
Mr. Cotcper, Who lay by.'*
Crouch, Thomas Vaugh'an, the prisoner al
the bar.
Mr. Cou'pcr, In what vessel was he?
Crouch, In a two-and-twenty-oar barge ;
he lay hy at the Cun-tleet: The next morning'
we weighed anchor at dity-light ; we saw him,
and chaffed aller him, au(l we made them, and
he made us ; and we made what haste we
could, and coming up, we fired a gun at
him, and then wc fired another, and then we
went ashore.
Mr. Coicpcr, What do you mean that he
run his vessel on the sands ?
Crouch. Yes ; and then we fired another
gun at him, and then he got ofl" again ; and
then M-e fired another gun, and could not bring
him to, and then he got off the sands again ;
and when we came up to him, wc manned our
long-boat, and piimuec, and barj^re, and had
him at last. W hen he came on 1>oanl, he
said, I cannot deny but I am an Irishman,
and that my design was to bu.a the ships at
the Nore.
Mr. Crnrpcr. Did he himself confess it.^
« See Peter Cook's Case, p. 311, of tbe
present volume ; and PeuLoVs l^w of Evidence
as there referred to
491]
8 WILLIAM IIL
Trial iff Captain Thomas VoKgkmh
he )>o pfiiilty of tbe high- treason whereof he
stands indicted, or not guilty. H'you find him
gnilty, yoii are to enquire whM goods or chat-
tels, lands or tcni.'uients he had at tlie ti^^c of
tlie lii^h treason couiuuttetl, or at ony time
since. irv^Mi find V.iin guilty, you are to en-
(]uire wIihIkt he tltd for it. If you lind thai-
he fled tor it, yon are to enquire of his goudsi
and chniteis, as if'yoii liad found hira guillv.
If you IiikI liiuLnot guilty, nor that he did Ay
for it, you ari.> to say so and no more; aiid
hear vuur evidence.
Mr. W/niaker. May it please you, my lord,
and the (fcntleMien of the jury, the prisoner at
the liar, Titoiiins \'aii<f lian, stands jndicteil for
hi^li-tieasun : that whrntas on tlic 9th of July,
there was a war bet\%een his majesty the ktii|^
of Knifl.ind'. and lii'wis tlic trench kinff ^
anionirst otlicr warlike pre|iaraiioDS that the
French kiii'j: ilid luako, he did set forth a shifi
calliMl the Lovul CI('iii*aily ; that the prisoner
at tlie bur, as a false traitor, did list himseLf
almard this ship ; aiul on the hi*fli-seas, aUiut
eleven leui^ucs from J)eal, did traitorously aid
tlie kintr's c-ru'ii?ies to take the kintir's M[m,
This is said :o hv a$;aitist the duty of his alle-
giance*, und tiie pc:irc of our so\eiei|^n lord the
kinfir, his crow n and dignity. He stands fur-
ther indioted, for that he, the sniil Thoiuns
< Lo iiOxr.K'lencarty/adiunoet ibidem exi$teii^
ad (|nninpliir' locos niaritiiuos in eailem naviciiU
armiU', voeat' ' l.e Loyal C'lcncarly,' in explora-
tioiie ( \nt;lice cruiainfi) ca iutentione, ad
pruMlaud* naves, hou', caiair et denar' ejusdctn
l)iim^ l^c'g:'^* ct subdiiur' snor* super alto mari
pra'd\ ac infm junMhction' piu:d\ vi rt aruii^,
6ii\ inalitiose, netpiissiuie, et prmtitorie uavi-
g::i\it, contra lii^oanc* sue debituni, contra pa-
GiMu dicii Uoui' Keuis nunc, c<iron' etdigfnitat'
Siia<, i^c. neriion c<tnira formam statut* in
hujusnindi casu e<lit* et provis\ 6iC.
"■ Ki jiir' pjiwl', prodicto Dom' Rcpfc sin>er
sacnur siiuin pr;rd' uherius pnwent', qumi
prtv-d' T. Vaiic^han, ut fdlsus prodilor contra
dlri' l.»«'ii»' J{ei,»Mii nunc Anjrp, cvt. suprcm^
Diinr suuni ult:'rius niachinans, piacticaiM, et
tola vi suu int< nd«.nspncimetcommunem tran-
rp-.illitat' h' juv re^^ni Any I* pe-rturlmre, of i^ult-
r:ii»i ct rchediun* contra diet' Dom' R'^i^c
snpiM-alii) liiuri pncd', ac iiifra jmisdictlon' ad-
miridita ' A:i;^i' suscilurc, ino\ei-e, et procurare.
€1. did' Dom' Ut-^^'fm a titulo, honore, V refill
nomine, coron' im|)ei-iar rctrni sui An^fP, '
doirii:i:iir' su'ti^ siipor alio mari pranf dcpoiit:i ■
\; di pri\arr, \' strajrem miserabib'm suhdili
t;iu-d.in l)i.m* Krjrjs nunc hujus rep;i
An'^fP MI per alto maii, ac infra jurisdiction'
mirar An}:;!' pr.vd' uavi>;nn', causare Sc
c:;r;ii\'. praMl' 8. d!o Julii, anno rcpoi
J'lMu' H^-l^'k nunc 7 suprad*, super uii<i •
clii'a 14 1. iKai; a I): al di<!iun*c, ac infi r '
n. II III r<ini:i' Aii;;r, \ intra juri*i.iiction' n-'*
r. •.■ar •\..vi' fa'.s;», malitiose, diabolice;. \' •••■
(l.i'..n', ^i x arinis, ^c. cum quamplur* •
f..! is robeilib' Si proditorib', jur' prsed' ic
(;iiciiam contra diet' Dom* Kegcin niUM
Vaugban, with several other Idw ti
levy war, ami ariu tbeiiwelvw wkli
fenKivt! and delensive« wad waftffii*
high^seaSf nffofDcal, wilb •» >'
ihe kind's sUipi£» and to loll ai-
king'u liubjecUi ag&iut4lw di*
gian^, ami the peace of our so
king, hi J crowa and digiytv.
mem he has pleaded notguiit
our witaessei, aod profo t!
not bal you ivdl dojour d-
Dr< LUikkm. Cfentleii
have heard the iudicUnent
Kort of CHEue th« priBii.
charged with, viz. Tin.
llie crowD of Euglan
his acconaphoes, arm<
\«ay, to murder and :'
amlai much as in
country, by ruiiiii
which ti the ij-ri-; ^
uatinn. Andihni ^^^
mate, be,' with iv-
in him layi la ^mmm
cred iii^rsty ;
l4>eiipiCttoii^
ai we m^^-
Ihal jrou nrr'
tuy and trj .^
Thomas \ a
tioue !^(h';
ibidiJii,
495] 8 WILLIAM III. Trial of O^ain Thmas Vau^imtf
that is the man, I
Crouch. Yet, he did;
know him well enough.
JL. C. J. When yon took him, in what ship
was you ? — Crouch. In the CoTeiitiy.
L. C. J. Out of what ship was he tsken P
Crouch. The two-and-twenty-oar barge.
L. C. J. What ship did he belong to ?
Crouch. I reckon it was my lord Barcley's
barae.
£. C. J. Who did it belong to then ?
Crouch. To the king of France.
L. C. J. What company was there in her ?
How many men had she aboard ?
Crouch. About five- and -twtmty hands.
Mr. Cowper. Did you ever hear him say any
thing of a commission he had?
Crouch. 1 heard he had a Frencli commis-
mission, but I did not see it.
Mr. Cowptr. Did you hear him say any
thing of it ? — Crouch. No.
Mr. CawpA: But he told you his design was
to burn the ships at the Nore ? — Crouch. Yes.
tilT. Cowper. What ships?
Crrnich. The English ships; there were
several ships there then.
L. C. J. Were there no Frenchmen aboard
the barge ? — Crouch. Nu, that 1 can tell.
Air. Lechmere. From whence did he come,
from Envfland, or France ?
Crouch. From Calais in France.
L. C. J. Prithee hear nie. This two- and -
twenty-oar barge, did it belong to any other
sluj) ?
Crouch. No, not that I can tell.
L. C. J. Did he call that vessel the Loyal
Clencarty ? — Crouch. Yes, my lord.
Then Edmund Courtney was calleil.
Sol. Cm. Mr. Courtney, pray tell my lord
and the jury what you know of tlie going- a\\ay
of a Custom -house boat ?
Courhuy. I will tell you, if vou please.
Mr. Phipps. My lord, 1 think they oujjlit
nut to examiue to tlint, because it is uol laid in
the iudii!tmciit. The carry iu^^ away of the
Custom-house barge is not meutionccl in the
indictment ; and by the new uci for rfgulat-
ing trials in cast.-s of treason, nu evidence is to
be admitted or given of anv ov<Ml-act, that is
not exjiresslv laid in the iudiftnicnt.
L. C J. S'otliing che? Suppose a man he
indicted for levying var a;^niust the kinjr, or
adfieiing to the Icing's enemifs, cannot they
prove any act that makes out a levyin;:if of war,
or an adhen'uce to the king's enemies i*
Air. Phipps. With snbmissio, not by that
act, my loril, unless it be laid in the indict-
ment.
L. C. J. Levying of war is the tiea55on ;
may tiicy n<it prove that levy ins: ^f ^var,
wiiiiout hein^ conlincd to any special or parli-
cuhr act Y
Mr. Phipps. AVith submission, bv the 25lh
of Ldw. 3. lef ying of war, as wefl as ima-
gining the death of the king, must have the
overt acts, that are to pro^-e it, expressed in the
indictment.
L. C. J. lievying of war ia n ovwt^act
Sol. Gen. The businenof ovfrt-adiisyWbfln
the oompassiDg and imaginiDp the kau^ ted
is a crime in question ; and thii moM be dia
covered by overt-acts. But if treaaoa be fid<
sitying of tlie king's money, this ia tratsoa;
but there can be no overt-act of that, for ihil
is an oven -act itself; but there must be a
overt-act to prove the compaaaiiiff and ibi-
gining the death of the king, and ui no oiki
sort of treason.
L. C. J. Levying of war, that is an onrt
act; so is adhering to the king's eocones.
Now compassing and imagioing the destb of
the king is not an overt act in itself, but is ase-
cret imagination in the mind, and a purpose in
the heart ; but there must be external ads It
discover that imaginatkm and puqiose.
Mr. Phipps. What is the meaning of tbi
new act, then, that there shall be no evideoesdf
anyovert act, hut what ia laid in the indictmcitr
L. C. J. What overt acts are there io dip-
ping and coining ?
Mr. Phipps. That is not within the new ad
of parliament.
L. C. J. That is must true ; the one is excepli<
the other is nut comprehended : bnt the mm-
tion is uiNin the statute of 25 Ed. 3, to whidk
the late act doth refer. Now proving an td*
herence to the king's enemy is proving an Ofoi
act. Suppose it be the killing of the chued-
lor, or treasurer, or judge in the ezecutisD d
his ofiice, what overt acts will you have th«F
Adhering to the king's enemiea, ia atroMB
that cousists iu doing an overt act.
Mr. Phipps. Yes, my lord, I take it that it
is ; for the new act, by saying, * that no sri-
' denec shall be adinitteil of any overt actthil
* is not expressly laid in the inclictment,' mad
be iuteuded of such trwasons, of which b^ kv
overt acts ought to l>e laid. Now the killiogif
the rhanceilor, or treasurer, or judge in ihs
execution of his othce, arc not such treaioiHtf ;
which it was necessafy to lay any overt sets ia ^
tlie indictment, and so not within the meaoiBr
of this new law. Hut levying war, aoda(
liering to the king's enemies, which are As
treasons iu this indictment, must, by theei-
prcss purview of 25 Ed. 3, be proved* by ofcrt
acts, whicli are to be alleilgcd in the indictmeat
Sof. Gen. The new act does not alter ibl
law in this ptu-ticular; what was law belbre,ii
law now ; it leaves the overt acts as they wcff
before ; and it says not that an overt act tad
to be expresseil wfierc it was not neolfid beliirei
Now if a man be indicted for comjiassiog ihi
death of a private person, there ought lo b
some overt act to prove his design ; but if ^
there be an imlielment for murder, there ncail j
no other overt act to prove it, but the moidtf |
itself. «
/,. C. J. But the force of the objectioB Eli ;
io this, viz. to say a man levied war, 9rd-
hered to the king's enemies, is no good ia
ment ; but it is necessary to allfqa f
manner he levied war, or adhered to fhi
enemies ; as that he appcmd.iBjBtlJ^
4973
J&f High Treason <m the High Seat,
169e.
[49t
f tit tlid adhere td itid assist tUe king^s
aie«, by joixuDg forces with llienif or ott>«r-
MMmOfg lliein« or cotitedersimg with
tliai nmst be speciiietL But if )rou m-
diet A mao sreneralty for adheripg' to the kin<;^(i
eaeinic*, aud not ray how and in if hat muntier
b« did adhere to theiDf that is uot a good La-
dictineot ; ther^fore^ if you purticulari^e nbat
€9tfDies, Add bow and in w hut naantier he ad-
iMird to them^ no etiOeiice can be given of any
•dier kind of adherenre, but that which is &o
ipeettrrd in the indictrnent.*
Sat. Gen, Then we must put all our evi-
dence into the iodiclmenL
Mr l^hippi. iSo you must, as to the overt
Soi, Gen, That will be the same thin^ as to
jiot in all OUT evidence, if we must ^ive evU
4tmst ol' no overt oct but what is expressed in
teiMllcfinent. But 1 do not take it, that the
nirea all overt acts to he put in the in-
I
JUr, Fh4pp!t. The act soys so, Suppose you
bad r : ue overt act, would the iodictment
Soi. ur //. We did not intend to put in all the
9 vert acts, but ooly what related to t hut part uf
the treason.
Mr. Phipp9» The treason must he proved by
overt acts, and the overt acts that proie the
iTiMOii most br tnetiiioned in the indictment.
Soi. Gen. What ! the overt acts of llie trca-
9tm before mentioned, as counterfeiting' the
king's mooey, and the hie, are atl to be mea-
tionedf
X, C. /. Const der, if you can make that a
fMd tDdiclmt'nt, to say, that the pri^ner ad-
Oired to the king:':* euemics, without mention-
In^ any overt acts to man i test such an ailhe-
refir«, ihea your answer to Air. Phipps is full ;
but if it be not a good iadicimeur, without a]-
Ifdgifig' particiilar acta of ajdherence, I hen it
Mcessarily follows, that if particulai's are al-
iedgc<l« and you do not prove them as is a!-
k&^^ yon liave failed in the intliotmeiit, and
90 nvs obicction will lie hard upon \ou,
, SqL Qen, My lord, we framed our indict-
ment aocurdio^ to the letter uf the stiiute.
X. L\ J. In compa^ng the death of the
km^. you must shew how that is iDiinifested
b^ the otert acts.
&)/. Gen, But compacsitig^ and imagining
mtisl be discovered by some overt acts.
L. V. J. Trtbtf. This is a doubt I have often
thought of: 1 thought it most naturol that the
word ofert act ahould relate to the first article,
riz. * cofttptssiQi^ and injagining of the king'!>i
« death :* For overt act seems to be opposed to
EORiethin^ of a routrary nature ; act is opposed
properly to tlioii^hi, ovett ia proper!)/ opposed
to secret. And ibat sort of treason consistintf
ia secret thought and internal pur|po«e, cnaitot
be k&owfi, tried, and jud^^ed of, without being
diietooed and manifested by some external
t/^esk ftcl r wheiefore it is pertinent and reason-
« Ike Eaat's PI C. c. 9, ». H- ^7.
f OL- XilK
alite, in order to attaint a man of such treason*
that the indictment i^hoidd dmrge and set fbrtU
the act^ as welt as the thought. And fto it hatli
been used to be done.
But such order or manner doth not seem so
natural or necessary, in framing tndictmenta
for Cither treasons, where the treason consists in
visible Of discernible taetat, as levying war, &c.
Nevertheless, I think an overt act ou^ht to
he alledged in an indictment of treason for ad-
hering to the king's enemies, giving theni aid
ajid comfort.-'^ And the overt act or acl^, in
I his case, ought to be the partictibr ftciiooa,
nieanSi or manner by u bich the aid and eoui-
Ibrt was given.
My lord (*oke d« dares his opinion to this
purpose. His words (which 1 read out of his
Look liere) are tliese; ** The compoiition and
counectioD of the words are to he observed/^
viz, [thereof be attainted by overt deed.]
^* This," says he, ** relates to the several and
diKtintt tciiniions before expressed, nnd esj>e-
cially to the compsssuig and imagining of thfi
deatli of the king, ^ce, for that it is secret in the
heart, &e/' Th«ow ihe arlicles of treason before
expressed in the statute of ^b Ed. 3, are four.
1. Compassing, &c. 2. Violating the queen ^
&c, 3. Levying war; and, 4. This of ail-
hering, &c. (And yet it is hardly possible to
set forth any overt act concerning the secondi
otherwise than tlie words of the statute^ tltat
ailicte exprc!>ssing so parliculiiv a fact).
I do observe also, that these woid^ *^ b^ogp
thereof attainted by overt fact" do, in this ata-
tute, immediately follow thisoHieteof ailheringi
See. And it would be a great violeitce to con-
strue ihem to rt-frr to the firnl article only, aoit
not to this last, to which ihey are thus con-
oected. If they are lo l»e restruiued lo a 5ing:le
article, it were more ogreeable to the strict
rules of construing, to refer them to this of ad*
heiiugonly.
L. C\ J. That which I in<iist on b this :
whetlier the indictment would be good, without
expressing tlie sperial overt act ? if ii be, then
this in a surplusage, and we ore not confinefl tu
it ; hut if it be not ii good indictment without
expressicg it, then we are contine*! to it.
Mr, JVii/jpi, I believe Mr. Solicitor never saw
an imlictment of this kind, without an overt
act laid in it.
L. C. J, Can you prove the fact* kid in the
indictment ? for certamly the indictment, with-
out meniiohing particular acts of adherence*
woidd not lie j^ftoii.
Mr. Copper, Yes, my lonl ; and as to the
evidence before you, we would only ctfer this :
whether in this case, if the indictment were
kid irenemUy, for adhering to the king's ene-
mies in one p"lace, and in another place levying
of war, and nothing more pariiciilsr, it would
be goodP I doubt it would not. But when
there is laid a ^u^rticular act of adhering, wo
may give in ctidencc matter to strengthen the
direct proof of that paniculor act of adhering
• See Hawkins's Fl. C. c* 17. i. 29.
d
t99J
8 WILLIAM in.
Trial of Cajriain Thomas Vaughan^
[500
to the kind's raemiei, ilMNigfa that matter be
not wpecially laiii in th« ioUictment: for the act
|roe« oiilv to ibis», that the priioner shall not be
convictitl, uDlr«4 }ou prove against him the
ovt-rt aciH Mitfitail y laid iu the indictment ; but
«» hothcr u inall not be heard, to make the other
ov«Ht ai't which IS laid, the more probable?
Now wt* have laid a special o?ert act in the in-
tlicciiiciit ; and we have |>roduced evidence of
II, mid we would produce likewise collateral
•%iti4*uct\ to induiT a tirmel' belief of that spe-
cial u»vii act, by shcwinp you that he hath
made ii Inn practice, during; 'the war, to aid and
4<«iM9»t ih«» kni^** encmini : but if the jury do
iioi iiiid liiui ^iidty of tl)»> special overt acts
luid III the ludiciiiicnt, they cannot find him
t^uilt) h\ the proof of anv other overt act not
Mill IU ike iiidicluicnt. liut if we prove he has
Iliads ibw hi« practice, in other instances,
iUiiiM^ the w«r. whether thai proof shall not
Ih* i%H'ri%c»l '
Ml r-'rvy^ My loid. I de»ire the act may
\h' iv4%). It c\prrv<l\ cHintradicts what Mr.
l'vw|Hn «tii9 . tor It f.iys, that no evidence
khall W ^%\\'%\ HI the ov«Tl-act, that is not ex-
piv«i«l.% lakl III ih< indictment.
The \i-t was rc;u].
( i* f rhm i«. you may ^ivo evidence of
411 o%«ii net thnt w not in tfie indictment, if it
cMiidiH^e lo pio^e one that Li in it. And if con-
•iiUini* to kill the kin;:f, or raise a rebellion, is
laid 111 the iiidictniinit, you may give in evi-
dence tin acting in ptirsitiince of a considt, that
!•». nil r*ideiice that they ngi^vd to do it :
ihiMi>*li ihiit doinsj^ of the thing is, of itself ano-
ihri i>\i-rt act, hot il tendb to prove the act laid
III llic iiulifliiii'iii.*
Mr. Vhr.p^. The overt-act luid iu this in-
dii'iiiieiit, is, hNCiiiising in the Cleiicarty ; and
lliiN oieii ail ym would prove, is no evidence
of th.it, uoi lel.ucNlo II, hut ills a disliuct overt-
set of iiself
/ t ' 7 \ iMi e;uniot ^ive evidence of a
ihsiiiii'i 4it t (h.ii h.tN iu» nhiiiou to the overt-
■i I III! iiiiiiiinl 111 the iiidieinu'iu, though it
ftii.tll loiiitiu (' to piove the suiiic N|H*cies of
ll« .11 Ml I
:Ui ('.'.. /Il \\ I- would iipply this proof to
ihi- «!« . 1 1 lu I I. lid III till' iiiilii iiuetil.
/ I ' \ii\ ihiiijj ih.ii h.is a direct ten-
%l» III \
\li
iha I.
Il* il ^%<ii iii.i\ pio^e.
{
.11..!
I..
.1
III 11 I
• >l I I
\Sv h.ivi- l;;id the o\ert-act,
iliil inhiiii.iiiU pill hiiiisetl'on iHMnl this
I lilt I u-iii h Ktii^, the LoyalClcncarty,
.Ml III M .1 III her, .iml cruise, with a de-
I ik.- ihr shios el ihe king of iMigUuul,
.Ill-It 1 1^ Now pari i»f the overt -act is,
lui, aiiiiii III ih.- nt ( lit' riui*iiiig ; \vc do not
I.. Ii ii> iMih i.ikint; one ship ; so that his ;
•iK.-.i I. .1 iiu iiihiM III thr ov«ii-act ; and it ;
•ml. Ill iii.ike hi\ eMii%iiig criuiiual,
ik;iiid III i.ike thr ships of the king
I N.i« wi think w a pniper iiiten
l"
v.
Ne,
t .IM\ V
l'.c.«, a
57.
57.
tion, to shew, that doring this wir, beim and
after the time of the treason laiii in the indiGt-
ment, he waa a cruiser upon, and taker of, the
king's ships ; and this fortifies the direct proof
given of the intention.
£. C. J. 1 cannot agree to that, because y ov
go not about to prove what be did in the venel
ealled the Loyal Clencarty ; but that he had
an intention to commit depfedatkm on the kin^s
sabjects: so he might, but in another sbip.
Now, because a man has a design to commit
depredation on the king*8 sulgects in one ship,
does that prove he badan intention lo do it u
another?*
Mr. Phippt. He was cruising in the den*
carty ; that is the overt-act laid in the indict-
ment ; aiid the overt-act tou would prodnee is,
hia being in anothte venei.
L, C. J. Go on, and shew what he did in
the Clencarty. You the prisoner, will you isk
this man any questions?
Mr. Fhippu Crouch, you sud, that the pri-
soner did say he could not deny but he was sn
Irishman ; how came you to talk about it ?
Crouch. He said, I cannot deny but I im
an Irishman.
L. C. J. Did he say he was an IrishmsD ?
What were the words he used ?
Crouch. He told the lieutenant he was an
Irishman.
Mr. Phippt. What discourse waa there?
How came he to say that ?
Crouch. I went by only, and heard the words
spoken to the lieutenant.
L. C. J. Did he speak English ?
C ranch. Yes, my lonl.
L. C. J. If he spoke Knglish, that is some
evidence he is an Englishman, though the con-
trary may he proveilhy him.
I tius^han. That would no more prove mt
an English man, than if an Englishman were
in France, and could speak French, would
prove him a Frenchman, because he could
speak Frrnch.
L. C. J. You shall be heard by and bye to
say w hat you will on your own behalf.
Mr. Philips. Were there any Frenchmen on
board the Clencarty ? — Croucli. No, JSir.
Mr. Phipps. Mr. Vaughan, will you ask
hiin anv questions vourself ?
Mr. iWptr. Call T. Noden.
Vaughan. How did you know that there
wen.' no Frenchmen aboard ? Did I addresa
myself loyoa when 1 came aboard ?
Crouch. No, Sir.
Vuui^han. Did I not address myself to the
cantain when I came aboard ? How came I to
tell you I was an Irishman ?
Crouch. They were all Scotchmen, English-
men, and Irishmen.
Mr. Phipps. Mr. Vaughan, you need not
take up the time of the court about that
matter.
* As to the Evidence applying to the overt-
act laid in the Indictment, and to no other,
see Hawkins's PI. C. b. 2, c. 46, s. 180,
WIJ
Jqt High Trcaton an the
[Hie I
Air. Ccmptr, Yau may go on.
SqI, GfJt. Did ihe jjinsonwoivn that heaclal
i\i ihp Fretjcji km^*8 com mission ? Di4 you
I \ thing 4»i ins b&Ytng a French cvm-
Yea, I heiirfl tie had otie, but 1 did
_|{ but 1 bt^ard so by the company,
. X W^rt tfiere any French men aboard ?
Crouch. No, Boithal 1 know ol\ They were
>ulchriit^ti, und Englishmen, and bcotcbmen
twi Iri^litijcn. .
Ir- Cvti>p€r. CaU T. Nadcn* (Who ap-
ircd, and wai sworn,) Do you give my lord
1 the jury au account of taking tbe vessel »
ailed the two and- 1 wen ty- oar hitrge.
Noden, Lt^st year^ about June or Julyt to
\ best of my rnnembrance, I belonged to liis
niijesly *8 tb»j» the Coventry » aud we look ibe
two-aod-twejity*oar bar»jc.
JL. C. J. How many Dutchmen were
AJMiard? — Noden. I do not knew ofaboveone*
L. C, J. Trebv^ What were the re»t ? Were
saoy Frenchmen ?
^Ofici*. Ye«, there were several Frcticbmen
ard. 1 Monged to the Coventry; and as
p€ were aatlinyi: by ilte Nore, and the Guufleet^
uptain spied a small vessel sailing by the
tt itnd he supposed her to be a Frt^nch pri*
er, ami be tired a c^un to make them bring
plo, aud they did iioi obey ; and at last tired a
run, shot and all, and they would oot come to.
Ttieii tlie captain ordered to man tbe boat, and
oiler them : m the barge, and pinnaee,
fxAnd lon^-boat were manned , and tliey came
ity near them. This barife we took^ waJi
hjigroimd also ; nod they got herufloat^aud E^he
^ruD abound a*;Hin : and a^ they were agrouitd,
BKisI ulHhem out of the boat, our long-boat
itruck aground, and waded after tbem near
Jl»]f a league ; and wlieii we came to the barge,
^Ibflfr via this captaiu Vaughan, and two or
mod twenty more ; and there was two
and, as 1 appreheuded* sonde
There was in her a blunderbuss
•ail VDiU armi, and a considerable quantity of
iMnidk^iiadoeii,
L* C* J. What vessel was you aboard ?
Nodcu. The Gov en try »
SoL Gtn. What couDtryman did csptab
Vaugbao say b« was ?
hodtn. 1 did not hear any thing of it. Our
raptjun eicamined ibe Diaclimeu whut coun-
tiyuiao iIh' f^ooimauder was, and bt> said he
W\^ an lri>liuiua ; but 1 did oot hear it myself.
When ca[#tu]ii Vuutrhiui tvaa brought aboard
the (.u>rriirv^ I was put aboard ibe [iri/e we
bud tiikeo.
Mr Caieper. Had you any discourse with
cmptaii} Van;fban c* — liuden No*
L, C' J. DmI they end^vour to take your
ship f
Nodcn. Kov but endeavoured to getaway
from us.
L. C> J* What guns or atumuuitioo had
HmvF
Noiknr I cannot id\ parlicolarly ; there was
time CttTMi hags, ^ery man hai ft car-
tridge bag, and there were sotne band-gra-
naiioes.
Mr. Whi faker. W^hat tire -arms had they ?
Nodin, \ c»Auot say how many ; but they
had muskets, and pistols, ^nd two blunder*
busses.
Mr. Cawptr. Did you understand whence
this !»liip, the Loyal Clencarty cume?
}sodcn. Tbe Dolchnif o saiil they came from
CaluJH, As near as I can guess, we spied
them about eleven o^cliick, and we weighed
anchor io the afternoon, on Habbatb^day, and
they took us to be a lii^ht colUert and endea-
voured to board us, as the Dutchman said ; bnt
Wben ihey knew what we svere^ they end^ft-
▼oil red to escape from us.
Mr. Cowucr, Call Sam. Oldlmm. (Who ap-
peared, ana was sworn.) IVlr. Oldham^ was yuu
aboard tlie Coventry when she took tbe ship
called the Clencarty ?— Oldham. Yes, I was.
Mr. Coieper. Pray give an account what vou
observed of the prisoner T. Vaucbantben f
Oldham. We weighed our ani^or tirsl at the
Buoy and Nora ; so we saw a prize io th^
moruing; the captain said it was a prise,
and we made sail after bliu, and thej ran on
tbe Gof>dwlu Saudis: and the captain seeing
tbe bar^e run aground, we (ired at ber to
brill If her to ; we tired a tiecond, and fth«
would not come to, hut run aground again.
When she was aground, bv tbe caplam'i order
we manned our ooaUt aoil out we went after
her.
IMr, Ciiwptr. Did you take ber ?
Oldham. We went, and our loitg-bQat ran
aground; 1 waa in the long lioat, and we
waded, 1 believe, a mile and btuf alter ber*
L. C. J. What Frenchmen were aboard ?
Oldhanu I cannot justly say whether ther«
were any.
X. C. J. Were there any ?
Oldhnm. I tbmk oneortwo.
Mr, Couper. Were there any Dunkirkers or
Walloons aboard P
Oltlham. There was a Dutchman, who lb«y
called a Fleunng ; and I discours«?<1 bim. ^
L. C. J. How many outlandish men were
there aboard ? Was there a dozen, or how
many f — Oldham, I cannot say the quantity.
MV. Cow per. Was there iiiore than two or
three I — Oldham, Yes, more than two or thret-
L, C. J. W bat, foreigrners ?
Oldham, Yea. And there were two Eng-
lishmen.
Mr. Cott'jjcr. What did you ob <-- - ■ *" tbe
prisoner at the bar^ at the takiotr < '
Oldham, I did oot come aboaid .. ...^ ..Jth
the prisoner, bat willi bis man ; and his man
tsaid he was an Irisbmun, and that be was
commander of the boat.
Sol. Ocn. What was tlieir dcsisfn itt tliat ship
Clencarty ? — Oldham, I canii ' .
Mr. Cow^cr. Did they i- .r being
taken?
Oldham, I cannot tell that ; I aaw no armf ■
Ikfr. Cowper, You were in the action; waa
there any rodstaooe made /
90SJ 8 WILLIAM m. TrUao/Caftain Tkmttt Vaughak,
[5«4
Oldham. I saw no resistance ; they offered
to run, they were agrounil onoe, and got off
again.
Mr, Phippt. You say there were foreigners;
what countrymen did you bdicTe those fo-
reiff ners to be ?
Uldham. I cannot justly say, I beliefe
Dutchmen.
X. C. J. How many Dutchmen were there ?
Vldham, i cannot say.
Dr. Oldith. But you said there were some
two or three Frenchmen, and that they spoke
French ; do you understand French ?
Oldham. No, Sir.
Dr. Oldish. Then how do you know they
were Frenchmen, and spoke French ?
Oldham. They said they were; they did
not speak English ; several of the ship's com-
pany said they were French.
i. C. J. Ii they wens all Dutchmen, and
appear in a hostile manner against the king of
England's subjects, they are enemies, though
we are in league with Holland, and the rest of
the seven pruvxnces.
Mr. Fhipps. The Indictment runs, That the
French kmg, ' quandam Naviculam vocat,
^ The Loyal Clunc»rty,cam quamplurimisSub-
* ditis Gallicis, Iniraicis Dum. Itegis nunc, ad
* numerum qiiindecim Personarum, replet'
•^preparavit.'
L. C. J. 8up|>osc it doth ?
Mr.Fhippx. It is ^-Subditis Gallicis,' my
lord.
L. C. J. They will l»e subjects in that matter,
if they act under his commission: They are
enemies to the king of England, aud Ihcyhavc
made themselves the French king's subjects
by that act.
Mr. Phipps. It appears not thct they are
Frenchmen, my lord.
L. C. J. If Dutchmen turn rebels to the
state, and take pay of the French king, tliey
are under the French king's command, and so
are his subjects. ^Vill you make them pirates,
when they act under the commission ot a so-
vereign prince? They are then * Subditi' to
bim, and so ' Inimici' to us.
Mr. Phippi, It does not take away their
allegiance to their lawful jirince. They may
go to the Franch king, and servo him; yet
that does not transfer iheir alle«;iaiice from
their lawful prince to the French king, and
make tlicm his subjects. Bnt however, to
make Ihcm subjects within this indictmi'nt,
they must be * Gallici Subditi' ; so they must
be Frenchmen as well as subjects.
X. C. /. Acting by virtue of a commission
from the French king, will excuse tliem from
being pirates, though not from being traitors
to their own state ; but to all other princes and
states against whom they do any acts of hos-
tility, they are enemies: And their serving
imdcr the French king's commission, makes
them his subjects as to all others but their own
prince or state. And though they be not
FreDchmeD, yet they are < Gailici Subditi ;' tor
it is the French sutjection that OMkea then to
be • Gallici Subditi.'*
Mr. Phippt, Pray, my lord, rappote t tob-
ject of Spain ahoafd eo over to the Frencfa,
and fight against England ; I take it, he may
be termed an enemy of the kiD{f of EoglaDd,
though his prince be in league with our's; boi,
with submission, he cannot properly be said to
be a sulgect of the French kinj^ : For soppoie
an indictment of treason agninst a foreigner,
should say, * that he being a subject, did coai-
mit treason' ; if it l»e proved he is not a subfcc^
with submission, he must be acquitted.
Mr. Cowper. There is a local allegiaore
while he is m the country, or fleets, or amia
of the French king.
L. C. /. Dutchmen may be enemies, not-
withstinding thtir state is m amity with w, if
they act as enemies.
Mr. Cowpcr. Call i^ Bub. (He was swon.)
Was you aboard the Coventry when she took
theClenoarty?— JH«c6. Yes, Hir.
Mr. Cou'pcr. Give an account what jn
know of the prisoner,^homas Vaugfaan, at die
taklngof tliat ship.
Bub. We came aboard the Coventry, and
were at the Nore at anchor ; our pennant wn
taken down to be mended. So in the night
captain Vaughan, with his two and twenty oir
barge, rounded us two or three times. In Ibe
morning we weighed anchor, and fell dowa, ia
oi-der to go to the Downs; and we came m
witli them, and tired at Captain Vaughan, Mil
he would not bring to. With that, our captais
ordered to have tlic bar^e, and pinnace, aoii
long boat to be manned, to gc» after him. They
followed him, and at last came up with bisi,
aud came up pretty near ; but could not csnc
so near with tne long boat, but were fm to
wade up to the middle a mile and a half. We
hoisted our colours, in order to figbt thea,
and bore down still upon them, and tney would
not tiM^lit our men : And we took then out;
and tvlien they came aboard, the EugiisbuM
that was a pilot was to have his freedom, la
pilot them up the river. He confessed to the
captain, that captain Vaughan intended to ham
the ships in the liarliour : And the neit day
after the pilot had confessed it, captain Vaugbai
himself confessed it on the deck, that lieeaoK
ovor with that design.
Mr. Couper. Who did he confess it to.'
Bub, To the boatswain and gunner, ai be
was on the deck, on the larboard side; that be
came on purpose to bum tlie shipping io ibe
harbour.
L. C. J, Did he confess that himself?
Bub. Ves, my lord.
L, C. J ' Wherealiont was this, at the Booj
in the Nore ? — Hub. In the Downs, my lofd.
L. C. J. Where did the ships lie that wcie
to be burned ?—Bi<6. AtShecmess.
Sol. Gen. Hcownetl himself tobeanlridh-
mnn, did he not P — Bub, Yes.
31 r. Coufper. And that he came from Ctkkt
• See East's PI. Cr, c 17, t.4.
n
JSub. Ym.
Mr. Ciwpfr. Had you wiy i!i»courac with
him about » commuaioD f
Bub. No. But our lieutefiant and captain
hftd, but It waa not in my hearing ; I wiU not
speak funber tban 1 beard, and what I can
Jualify.
Sol, Grn. Wt\l you ask him aay ijuestions ?
JMr> Phipffs. No.
Soi, Gen. Tbeii call Mr, J. Cntlcnden,
tnaculiat of Do\or Castle, (V^ Uo was aivorti.)
Mf* CVitteodeu, Prny what diit you bear the
^mooer at tbc bar confeis of his detiign in
III : r Inland?
1 did not bear bim say any
Sot. Gen, What did he confess f
Cnt. lie confessed be was an Irisbmao.
Ml*, Whitaker, Upon wbat occasion did be
cotifcss tbi&t P
Crii^ Wl>en I entered bim into noy book, I
tiked bim wbmt countryman be was.
Mr. €Anrftr, IV hat are you ?
Crii, 1 am the marshal of Dover Castle.
Cvwptr, Uy what name did be order
enter bim T
Wl. Thoma« Vaughan, an Irlnhman.
L. C* J* Upon what account did you enter
^m ? — Crit, As a prisoner,
Jttr. Cauptr. Did be speak any thing of a
eommttisiofi ?
CrU, 1 did not hear him aay any thing of
Ibst.
Mr. Phipps, Hare you your book here f
* cm. Yes, sir.
Dr. Oidii/i. \1m>s be DOt m drhik when be
ill so f
Crit* I believe be was not ?ery sober, ia-
Mr. Fkippt, Did you ercr after bear him
By lie was an Irisbnmji ?
Crit* The next day be denieil it.
Mr* Cvwper, IVheu be had cojisidered Ibe
of it.
L>«r. The next day he was examined by
i nf^tbe justices of tbe peace.
StfL Gen. IVm you by when he was exa-
ained by tbc justices.^' — tnf. Yes.
Sol, Gen. What did he then say ?
Cr$t, Then be said he was of Martenico.
Sol, Gen. Set up Mr. Bullock. (Who was
vom.) Mr. Bullock, Do you know the pri-
oner at the bar ? — Buiit^k, Yes.
SfL Gen. Pray what hare you heard bim
ay of bis design that he came into England
' r?
Bullock. He came to Dorer about the Uth
r/tily^ 1695, as I remember : I went with se-
al ethers^ who were hrougfbt by the captain
' tlie Coventry, and the lieutenant and some
and wbeo we came thither^ he there
I bimself an Int^hman; but when he went
'• tiiiit day to be e^faniined, be said he was of
^Maiteuico. He told mo he ha<l that barge from
iihm duke of BuUoign, and came on the coast,
ftMnd was chased into Ibe Flatts, where tbey
look JlilBw
L* C. J. Did you ever hear bim say he h«d
any commission from the French king ?
'BuU<fck, I know nothing of that ; it was
late, and we did not examine bim then ; but
the next day, when he C4une to be examined,
be said he was of Martenico,
SqI, Gen. What did be say bis design
was?
Bullock. He JMiid, that seeing' the boat at
BulloitCQi be bought it of the dukeol' Itulloigw ;
and the duke asked him wiiat he would do
tvith her ? And he said, he would fit her up,
and ;7o and take a ship at sea^ that is upon our
coasts.
Mr. Phipm. W^e arein your lord^iip*sjudj?-
mcnt, whether wc need giwe Any eviJence ; for
we think they have not proved their indict-
ment : for ihe'indictment sets forth^ • Tiitit the
' French king" titled out the Loyal Clencarty , of
* which Thomas Vau^han was commander ;
* and that Fcry many Frenchmen, subjects of
* the French ting, were put on board.' Now
the Brst w itness swears there were no French-
men; ami another swears there was one or
ttvo; another that they were foreigners; but
does not believe they were Frenchmen. 8d
there is no proof of that part of the indictment ;
nor is there any proof that he was captain of
the f^yal Clencarty : So that none can say, it
is tbe-same vessel meRtioned io the indiclmeut.
Nor is any act of hostility proved ; for all the
witnesses say, that Vaughan never pretended
to attack them, but run from them. 8o that
all they depend on, to support the iodictment,
is to prove that be had a design to burn the
sbi]*9 at Sheeroess ; which will not serve their
turn; lor the words of the indictment are, * ad
* prosdandum super altum Mare,' Now Sheer-
ness is not * super altum Mare,* but ^ infra
* Corpus Comitatus*,' and then not within the
indictment.
Mr. Cowpcr. The words ships at Sheemeas,
do not imply I that the ships lay witbio the
towD of Sbeerness, but off of Sheeriie^s, which
is * altum mdte.*
Mr. Fhipps. Then it la not in your indict-
ment ; for that says, at SheerDeas,
Mr. CowpcT. No, off of Hheemess*
Sol. Gen. Jt is DO coniradiction, to aaj the
sea is within part of a county.
Mr. Phippi. The indicinaent says at Sheer-
Sol. Gen. OffofSheemeaa is the hik(b sea,
Mr. Phipps. Sheemens is not the Buoy in
the Nofp. Then you must prove he \% us cap-
tain at this time : for the lodielment saysi, ' Ad
* tunc fuit Capitaueus et Aides.'
L, C. J, One overt* act of adhering to the
king's enemies is, that be put himself us a sol-
dier on board the 5ihip.
Mr. Phifipi. You will make one port agree
with another, That the French king did £>et out
a ship, and gave him a commission li be cap*
lain of her.
L. C. /. The witoesees bare proved be acted
as a captain.
Ml, Phipps, Ue W4S tiken % and sure, il W
i607J
8 WILLIAM IlL
xm taken, he must Uajt bis commission witli
him.
Solf Gen, Examiue the marshal, he took an
account of liini: and by direction of Mr.
.Vangrban himsdf be entered him as captain ;
and he entered sereral men in the snip as
Frenchmen, by tlieir own direction. /Mr.
Crittenden was called.) Mr. Crittenden, have
you got your book in which you nuide the
entry?— Crit
Yes, I have it.
By whose order
did you enter
Soi. Gen.
Iheni ?
Crit. By the direction of captain Vaagban,
the prisoner at the bar.
Mr. Cowper. How did you know he was a
captain?
Crit. Because he told me he was captain,
and 1 entered him as such in my book.
Sol. Gen. Captain of what?
Crit. The Loyal Ciencarty.
Sol, Gen. Pray read your entry in your book.
Crit. Thomas Vaughan, captain, Irishman,
the 14th of July, 1695 ; and so of all the rest
0f the ship's crew.
Just. Turton. Did you write these in the
presenoe of captain Vaug^han ?
Crit, Yes, m the same room where he was.
Mr. Phipps. Did you write it by his direc-
tion?
Crit. For bis own part, by bis direction;
and for the rest, by their direction.
L, C J, Take all the circumstances to&^e-
iher, it is great efidence, considering what
they were lUiout, and what YesaeX they had.
Mr. Crittenden, can you tell how many French-
men were there ?
Crit. I will tell you presenll3^ (He counts
them in his book.) There were Uiirteen.
Sol. Gen. Did captain Vauffhan hear any of
them bid vou enter them as I renchmen ?
Crit. I cannot be positive in that, I suppose
he did ; he was in the same room.
L. C. J. Do you expect tvitncsfies from
France to testify where they were born ami
christened?
Mr. Phippf. One witness sars, there was
not one Fixuchman there.
L. C. J. Not to his luiowled^c.
Sol. Gen. What do you know of his ba%iiig
a French coir mission :'
Bullock, i did not nee \*.
Mr. Whilukrr. J)iil lie rwn liis havir^ any
French commission 1' — Bul'ock. \ cannot tell.
Just. Turton. Lie owned himself a captain.
Mr. Phipps. Hv. mi:;bt be a cuiitain in an-
other ship, but nut in tliis ship ; they uu(rht to
prove be wai^ eaptain at that time, iu that ship,
by the French kinir's commission.
L. C J, All the witnesses say he acted as a
captain at that time.
Mr. Coapir. He owned himself the captain
of the l^)yal Ciencarty.
Baron Pi»uis. What can be plainer, than
that he OMiitd himself captain 1'
Dr. Uldkii. This seems to me a very strange
proof, to he built only upon the sayings of
.these persons, that they were Fcenclimen:
4
Trial qf Captain Thomas Vaugkan, [SOS
and this to a man who bad no .aiithoritj to
examine them, when it might have baai easily
proved in a regular way, in oaae they bad hen
so ; they might have been emmiaed before
a magistrate, and thereby it would have ap-
peared whether they were Freoch or no. Aail
It was absolutely necessary in this case, be-
cause of tlie contrariety of the witocasea; for
the first witness said, there were no Frndi-
men aboard; the next saidy there were two
Frenchmen and a Dutchman ; and Critteadca
said there were thirteen. Now hbir can tbsR
be reconciled, unless there bad been a lejpd or-
amination of the parties ? But the tbug we
would chiefly go on is this ; 1 think tbey hafc
failed in the foundation of the treason ; thstiit
to prove the prisoner a subject of this crowa;
neither is there the least colour of proof there-
of. At night he came to Mr. Crittenden, lad
is in drink ; there lie says he is an Irishnta:
the next morning, when he is examined before
the justices, then he comes in a kind of JBi%-
ment, and then such a confession would be of
moment ; but then he confesses himself to be
a Frenchman of Blartenioo. Now, my bod,
what credit is to be given to these confessioaB;
when before the marshal he shall say, I am aa
Irishman ; and the next day, when he is oa
examination, he declares hiniselfaFrcnchflHo;
in one confession he is in drink, in tbe.elher
sober ? Now, my lord, I say, what proof ii
here? Here then the foundation of the trason
fails : for the indictment is, ' That he beiaga
subject of the kin^ of fincland, let ics war.'
Now, my lord, if this quality be not proved, sU
the rest of the indictment falls to the grouDd :
for it is impossible for him to commit treason,
where he is not a subject ; because there can be
no violation of allegiance. So that if be bei
Frenchman, as he declared befoi:e the justicei,
he cannot be guilty of treason. $:» tlist bere
they have fail^ in the foundation of all ; thit
is, to prove him a subject of £ngland. And
because they affirm him to be so, it lies onthoie
tliat affirm it to prove it. But perhaps, w*
they will say, that these little c(»ufes!Hona of
his will throw the burden of proof uu biiB.
l\y no means ; when here is a stronger pre-
sumption on the other side, a mere extrajodicial
j saying to seamen, that he is an Iriahraau, csa-
I not balance his confession cxamineil before the
justices, wherein he says lie is a Frencbman;
and so can never throw the burden of proof oo
him. Therefore it lies on them that 9iseti tbii
I to prove it. But, my lord, though itidoth w^
tie on him, yet we will prove him to be o
Frenchman, and born at il^Iartenico, by IboM
that were at the christening of bim, and hsfi
known hiia from time to time ever
known hiia from time to time ever since. ^ id
because tliey say he can speak Enelisb, if tM
please to e3ainnne him, you shaU hear bi
speak natural French ; so that that CHMl
prove him to be a natural Irishman.
Mr. Phipps. 8uch a saying of a faNfgll
will be of no great weight; IwGaaae^lf nM
St into a foreign country, ho .mUf flQF P^
at countiy man to get the more mpil ^
J5r High Treason on the High Seas,
r. What, to hanff himself?
ipfis. No, my lora ; a man that comes
A. D. 1696.
[510
inge ooantry, may very well think he
better mage, by pretending to be of
try, than by owning himst'lf to be a
But we will prove Vaughan to be a
in. Call Robert French. (Tbeii
-ench was sworn.) Mr. French, pray
*otirt and jury an account, whether
' Mr. Vaughan the prisoner at the bar,
long you nave known him, and what
lan you take him to be, and the reason
. I have known him this fourteen
lipfs. Where did you see him then ?
. i saw hiiti in Saint Christophers.
iippt. Pray give an account bow you
now him.
. About siiteen years ago I was at
irat, and 1 came to St. Christophers,
e I chanced to come into £nglish
aiiiong the factors ; and so they
30 to the French ground ; and coming
A-as in company with several others
i, and it happened 1 was told there
Ir. Tauj^an there ; and 1 coming
d with him, he she%Ted me this youth
I youth then) : he told me he was his
recommended him to me, because he
me to be a man in trust and business.
lippf. From that time what has he
ImI ? — French, A sea-faring man.
rippt. But what conntr^rman ?
:. To be born in Martenico.
iipps. In whose dominions is that ?
. In the French king's dominion.
urton. What occasion had yon to
of the place of his birth ?
. Because his father was looked upon
renchman.
\irton. His father was a Ft^enchmati ?
. Yes, my lord, and lived at Bfai-te-
'toper. How old might he be at that
French. About fifteen or sixteen.
uper. How came you to be talking of
and with wliom ?
I. One that was talking with me told
ame was Vaughan, and that he was
e.
'4»per. What introduced this dis-
How came he to tell you thb, that he
in that place ?
i. Hia father told me so.
"omper. You were talking of one
of nis same : how many were in corn-
ea there was this talk?
I. There were many of them.
mper. Name them.
i. It is so kmg ago 1 cannot remember
9wper, Name as many as you can of
Biaay u yon do remember
L OfisNr. Bodiken, a factor.
Ibpcr. Who eke f
l.^itinluthfif.
Mr. Ca»per, You named one Vaughan be-
fore.— French. Yes, 1 did.
Mr. Ctnt^per. But you had foigot him now.
French. No; there was one Vaughan.
L. C. J. Were therv any more?
French. Yes, there was; 1 remember the
company that went along with me.
L.C.J. Who were they?
French. There were several passengers that
went over with me.
L. C. J. How came you to talk of this man'i
nativity P
French. Because his father said, he had not
been ont of the island m 20 years. (At which
the people laughed.)
Mr. Cowper. Wh^t dhice was this discount
in?— PrtfncA. At St. Christophers.
Mr. Cowper. How did his father's saymg,
he had not been out of that island in %0 years,
prove his son was horn Uiere ?
French. Because he recommended him to
me as a sea-taring man.
Mr. Cowper. What is that a reason of? What
is that to his being liom at Martenico?
J ustice Ikrton. What countryman ate yon ?
French. I am an Irishman bom.
L. C. J. His fatlier aoknowledged himsolf to
1)0 an Irishman liom, did he not?
French. No, my lord, he did not say whera
he was born : I do not know.
Justice Ikirton. Have you continued any
acquaintance with Mr. Vaughan since ? How
long did you sta^r at St. Christophers ?
French. I staid but 31 hours, to take in
water.
L. C. J. How long was it after this, before
you saw this gentleman, captain Vaughan ?
French. J never saw him since, till I saW
him in London. ^ (Then the people laughed.)
L. C. J. Pray,' gentlemen, have patience.
How do you know now, that this is the same
man that you saw ] 4 years ago ? for there must
be a great alteration in a man in 14 years time,
from what was at that time, being but 15 yeara
of age.
French. I believe in my conscience thb it
the man.
L. C. J. Can you take it upon your oatli he
is the man ?
liar. Powis. In what language had you the
discourse ?
L. C. J. How long were you in company
with him and his father ?
French. I believe five Or six hours.
Bar. Powis. In what language was this dis*
course with his father ?
French. My k>rd, he spoke Englbb, a sort
of liroken English.
L. C. /. wliere do you live younelf ?
French. I live in Ireland.
L. C. J. How long have you lived there ?
French. Nine or ten years.
L. C. J. Whereabout in Ireland?
French. In Connaught.
L. C. J. Nine or ten years?
JVciif*. Yes, my Lord.
Dr. LiitUton, bid not captain Vadghtif,
511]
8 WILLIAM in.
Triat of Captain nomas t'augka
[»1|
l»or his fatbeff speak Irish to you in that mx \
iiours? — Frfnch. No, my loriK
Just* Turt0n^ How loa^ ha%'e you been in
Ei^and P — JYcMck, Nol atioie two tnoolhs.
Just. TurtvH. Did ydb bear of taptaln
^au^ban being to be trieil^
Ft^nch, No, my brd*
Just. JWrlon« lluMT d^d be come to hear of
you, IheQ.' — Frtneh, I heard be wasiti town.
L. C, J. ft is a strange tbin^ ; you have a
most admirable memory, and captaiu Vaa^ban
tiaa as goin\ a jiiemory as yoti ; tliat yoa should
iierer huve any intercoai-ie fur 14 Vfars, and
yet abould remember one anoiht* r atVr so long
a time. It h a wonderful ibin^ too, that when
be could ijot know you were io town, yet he
should caH you a witness on hU behalf; ^ure
he muiit have the spirit of prophecy,
French, He did nol sieod to me at ell.
JL. C X How did you come to be here,
ibenP
French. I wilt tell you. It was my custom
always to go and see prisoners i and f heard
there were prisoners in Newgale ; so I went to
Kewgate, and I met w ith one Dwall ; and I
liskt'd biin of anutber gentleman tliat was
iJiere ; and I went to the other fiide by chance,
iAOd I met with captain Yau(;ban.
X. C. J. What was iJiy design? Why didst
thou visit Newgate ?
FrencA- Because it was my custom, because
it was an act of charity.
L, C. J. IMd you go to Newgate out of
tthartty ?
French. I went to sec my friend, and carried
a letter to liim. I went out of charity,
Mr. Phippt. You were in the VVeiit- Indies,
upon (bu, French ground ; t\o uot they speak
hnglhh on the French ground, and Freucli
on ibe Engtish grfmnd? — French. Yes.
Mr. Cowpcr, So they do here. Did yon
ever ttee capiaiii Vaugbao before Ibat time ?
French. No.
Mr. Whitaker, Did you visit lately any
Other prisoners in Newgate, besides captain
\' a ugb nn ? — French . \' tt* .
Mr, Whttaket\ Give iheir names,
French* I have risited Mr. Noland, and ano-
ther {^ndeman lh:it i^ ^itb him ; and I went
Into the house, and drank with him tlierc.
Mr. Whttakcr. What is that other gentle-
man's uame f
French, I do not remember his name at
uresent ; but be is a companion of Mr. No-
land's.
Mr. Whitakcr, Do vou know hloi if you
fee him ? — French .1,1 won Id .
L. C. J. Treb^, How long hare you been
Id England?
French. But two months.
L, C, J. Trebj^. Have you usually visited
prisoners in former years ?
French, My lord, wherever 1 hare been it
vraa my cu6tOQ> to do so.
h, C. J. T^eby, But how doth it consist that
you* who are an Irishman, should come hither
ti risit j^nsoneri in Ntwgate ?
French, t can pro?e ander my lotd may of*
of Dublin*s horui umi i r:^,^,.. hf.ri- upon*
nt'ss; and I • tj visit thtf
prisoners for ci. id tieitow i|
according as I was sbir
L, L\ X You bad best at^ iliere, m4o«l^
go away ; for we may ha?e occosioo to
you some questions.
Mr. Cotppcr. D*i you not ate, ootofchtrfly^
to be evidence for them ?
French. No, neitr * '' ; *ife,
Mr. Whitaker, W I vsha^«y«<l
visited bt^itles Newoate:
French. I did visit none.
L. C\ J. Trchy. Hud you no charity frif
other prisons?
Bar. Poet'ii. When youaovlsil piiw^nt n»
what account is itf Is ittogivegbosi
French. Upon a charitaUeaccoum,
X. C. J. Ghostly adrict and charity.
Mr, Fhipps. Where is Mr. hrHeur ? fHc
did not a|ipear.) Call Mr. Gold, f ^
CI. uj Arr. That man is ati
doned.
Mr. Fhipfi. Mr, Gold, Iiow long have jou
known captain Vuughan f
Mr. Gold. I ncrer knew Mr. FiOgblife
before I saiv him in tlie Mwshalsca*
Mr. Phippt. Is AioDsieur LeHenr here? Il
>Ir. Deberty here T
{Mr
Mr.
Deberty appeared, and was sworn.)
Phippi. Do you know 'Mr, VRUglaOt
the prisoner at the W?— UcArrly. Y'es^
Mr. Phippit. How luny: h^veyou kno^vo him?
DchcHy, rive\e»r&.
lUr. Phtpfi, ^liot has be been reputed til
along, since you have kno\rn him.
Dchcrty. A French m*m.
Mr. Phippt. Did you know him in Fnuiocr
Dcherty. Yes; and he was reputed
Frenchman there.
Just Turtojw What occasion had you td'
oucmtre into that, tlie place of Ms nadvity f
Deherty. I did not euquire at all ; but
that was bis servant was my commde a
while.
Mr. Phipps. Now we will prove
was christened f by one that wa^ ai In
ingf Mr. Dascine. (Be appe&red aad&i
being sworn, and spoke in French to the
pretending he could uot sfieak English.)
L, C- X If he cannot speak Htiglish,
must be an interpreter*
SoL Gen. They must find an interpreter, be
is their witness.
[Then a person in court stood up, nnd toll
the court be could Hpetik Kn^lish as well us he J
that he had been a Bailiif^s ioUower for ;
years.]
X. C, /. You can speak Bngliib, can yoi|
uot?
Dfiscin^. I will speak as tvell as I can.
King^s Mcjienger, I am a messeuger to tb« |
king, do vou know me? — Dascine^ les,
£. C. 3t Prithee speak English,
Jmr High Trmuom mi tke Higk Seas.
A. D. 1698.
[514
A ifl wcU M i oan, My Iwd, 1 wMl
ic. Vm^ my hri.
kipp». Dq 7«i know ctptain Vaufrhtn ?
le. la ia60 1 WM in^. Cliristophen ?
mm Rmu, and froni tbenoe I went
I mad doth to Crebeck, and had a
•na TliaMaa WiNiama, a factor in
a. And ater I had done, ai I was
ivw, Mr. WilUaina devired me to
chrjalMiiiHr* • mile and a balf from
iraL He toM me there wai one Mr.
I had a fdantation there, and desired
be godfather. And about two days
went from Port-Royal to St. Chrieto-
ain. and I cane to Roan ai^aui in a
ed tik. Joseph. So in 1077, 1 went to
itophers a^in, and from iheuce to
!0, to Mr. Williams; I asked him,
beooBie of that yeunf man we were at
rteoinr? aod so be shewed me bim
ire (pomting to the prisoner).
J. That was in 1677?
«€. In 1677. So I came from Fort-
I went to St. Christophers^ and so
, and came to France again. And 13
9 1 weBtto Sl Christophers again, and
itsent and Haitenieo ; and so when I
llartonico, and asked Mr. Williams of
D^ man, that I was at his cliristening,
lid, be k at aocb an bouse, and I saw
re.
/. Thirteen years ago.
ne. And we went and drank pouch
; and 1 came back for Roau.
/. When did yun see bim since that ?
me, Nerer till 1 saw bim here a
J. How do you know he is the man P
ne. He has a bruise in his side.
Vkippt. What was tlie gentleman's
t tiie christening of whose cbiki you
•Daacine Thomas Vaugban.
^Aippt. What was tlie child's name f
ne. Thomas Vaugban.
*kipp$. When you went the next time
snico, did Mr. vViiyams, you speak of,
I tlie godfather, present this person,
Vaugban, to you, as the man wno was
•isteoed?
se. Yes, the next time.
'fkippi. Now, is captain Vangban that
L the bar, that very genilemsu ?
me. I am sure it is he.
J. You say thb meeting was about
-jDusriae. I^es.
irca. Pray what was the reason you
inquisitive to know what became of
Km that was christened when you was
me. Because I being at the christening,
bim bow the child £d.
/. How came you to tal^e such extra-
r ofascmtion ot that child ? Was he
vmaikable child ?
fflSBlMs. Wber^ were you born?
s. XIII.
Datdng. In France.
Mr. Wkiiaker. What are you >
DBtcine, A barber bv trade.
L. C, J, What employment have yoir ?
Doeciue. An officer in the Marshal's oomt
sometimes.
Justice I^rfoa. What was this man's fathePy
what sort o^ man was be?
Dateine, A tall man.
Baron Pu»ii, Whatwas hisfiitber'snameP
DoMcime. Thomas Vaugban.
Justice Turtan. Was his father living when
you was there the second time ?
Daeeine, The last time I was there I did not
see bis lather, but I saw his father the second
time.
Justice ZVif /oa. But you saw Mr. Williams
his godfather.— -Daictfie. Yes.
Mr. Pkipps. Call Simon Danneaun.
Vaughan. My lord, be is sick, and not aUo
to come out of his lied.
Mr. Fhipps. Call Francis Harvey. (Who
was sworn.)
Mr. Phippi. Do yoo know captain Vaugbaa ?
Harvey. Sir, in the year 1693, I was in
France with one captain Bontee, who was
taken prisoner in August the same year ; and
my captain he had the liberty to go up to Paris
with a guard, for his pleasure, and to learn the
speech. And, as it happened, we came to
lodge in a street, called Dolphin street, at the
sign of the Crown ; and there was some gen-
tlemen that were there to learn the speech,
that were my countrymen ; and there was a
young man there, and he was acquainted over
the way, where this gentleman, captain
Vaughan, lodged ; he lodged at his aunt's that
sokl silks ; her name was madam Wotfon ; I
saw this gentleman there ; I am sure it is he ;
and with that I came acquainted with him, as
well as the rest
Mr. Phipp§, What was he reputed there P
Harvey, A captain of a ship.
Mr. Phippt. What did he go for there ? A
Frenchman, or an Englishman, or an Irish-
man ?
Harvey, He went for a Frenchman, as I
beard ; one time his aunt, she said, that he
was bom in the West Indies, at Martenico,
and that he was her sister'^ son, that lived iu
Martenico.
Sol. G^in, You say be u as a captain of a
ship? what ship?
Harvey. That I cannot tell.
Sol. Gen, When was that?
Harvey. In 1693.
Mr. P'hipps. Is Mr. Letleur here?
CI. of'Ar. He is a prisouer in the Kavoy ; he
was taken in the same ship with Mr. Vaughan.
. Mr. Phipps. It is reasonable he should hnve
been here, to give an account of the prisoncir.
L. C. J. Then they should have token rnre
to have had biiu here. Have you any more
witnetwes ?
Sol, Gen, I think we have given suificiept
evidence tliat he is an Irisdimau : But now we
shall shew you* that all your witoenas hs^e
SL
315]
S WILLIAM in. Trial qfCapimn Thanuu Fai^JfaM, [5U
Siren a ?ary extravagant evidence to prove
lat he is a rrenchroan. All he hoped for was,
that the prosecutors for the king could not be
able to prove him an Irishman ; he believed
there were but three men conld prove him so ;
that was David Creairh, and two more ; and
so be writes to David Creagh, and tells him,
That liis life was in his power, and he hoped
he and the other two wonld not discover it.
This David Creagh was his neighbour in Ire-
land ; we will oallhim to prove that cantain
Vaoghan was born at Galloway in Irdana.
Mr. WMtaker, And here is his letter under
bis hand. Bring David Creagh. (Who was
■worn.)
Mr. Cowptr, 1 desire, before he give his
evidence, he mav look upon those that have
given evidence aoout the prisoner, one by one.
(Then he looked upon Robert French.) Mr.
Creagh, do you know him.
Creagh. No. (Then he looked upon the
rest^
Mr. Cowptr, Have you had any of these
men come to you on a message f
Creagh. No, Sir.
Sol. Gen. Do you know Thomas Vaughan,
the priwner at the bar?— CreagA. Yes, I do.
Sol. Gen. How long have you known him ?
Creagh. About two years.
Sol. Gen. Waa that your first acquaintance
with him ?^Crcagh. Yes.
SjI. Gen. What place was he bom at, as you
have heard ?
Creagh. At Galloway in Ireland.
Sal. Gen. From whom did vouhear it?
Creagh. From all |)ersons that I have heard
speak of him.
Sol. Gen. Did he ever own to you that he
was born there ?
Creagh. Yes, uftentiraes in my company.
Soi. Gen. Did ^oii ever receive a letter Irom
him abuut your i^ivini^ evidence in this matter?
Creagh' Yes, Hir.
Sol. Gen. I>o you know this letter? (Which
was shewn him.) — Creagh. Yes, Sir.
Sol. Gen Do you kn»w his hand ?
Creagh. Yes, 1 partly know it.
Mr. Whiiukcr. Did you ever see him write?
Creagh. This is tlic letter I received from
him.
L. C. J. Read it. Do you think it is bis
hand?
Creatih. I cannot swear it ; but 1 l>elieve it
is his hand.
Mr. Fhippt. Have you seen him write?
Creagh. I have seen him write several
times.
L. C. J. Do you believe it is his hand ?
Creagh. Yes, my lord, but 1 cannot swear it.
[Then the Letter was reail.]
To Mr. David Creasfh, in Newgate, These.
" Mr. Creagh ;
<» I have some assurance that Mr. Whitaker
has no witness to prove me a subject of £ng •
land, but yon, and two more, which 1 am glad
•f with all my heart : I hope I may bare none
against me that wiah mt wmiltn wi id!
captain Etherington. If Mr. WhUmr ha
not sworn you yet, I hope you will dM appeal
r'nst me. 1 'declare, if I had mora thn oi|
, I would ley it in vonr band. 1 am Kks tt
be sent to Newgate this day, anl it k Kht yes
and some more will be sent bere, thai w mij
not talk together. The Dutch diiga toak finmi
me eleven hundred dollaia in monen
certainly troubles me more than the '
of death, which I value not a straw; but I f
in four or five days to he supplied. 1 ftar Ih^
will keep me close. I have all tht VSkKlj
imaginable here to write, and my firieods m*
fered to see me. I can ny nothing tUl ii
comfortable, bnt that I am very well in heitt,
and nothing concerned, if my money oonaia
time. T. TAOOBai."
Friday morning.
Mr. P^ippt. Is that letter praredf Tkth
not to the purpose ; nor of any wrighti 0M«
dering who proves it.
L. C. J. No, that none could prait Im i
subject, hut he and two umnv ?
Sol. Gen. We will produce only one vilHil
more. "Call Mr. J. Rivet.— [The cont knf
informed by some gentlemen then m m
benib, that there waa a gentleman tha k
court, one Mr. Rivet, who being of Galiovift
could probably give some account of the pn-
soner ; he waa immeiliately caUed# and it*
quired to depose what be knew.]
Rivet. My lord, I am aurry 1 am cdled
where life is concerned, when 1 came bilhcr
only egt of curiosity ; but the service I owe 10
this government, obliges me to speak what I
know, now I am calletl to it [Then he wan
sworn.]
Sol. Gen. Do you know the prisoner at Ike
bar? What countryman is he?
Rivei. 1 have known him n great mny
years ; we were children together in the Miaa
town; we livetl in Galloway in Ireland. I
knew his fatlier, and mother, and brothen, aad
sisters ; and I remember him a child, as l«eg
as I can remember any thinf^, 1 cannot deter-
mine to a certain pumoer ot vears; and 1 R-
memlier him not only a school boy, but alfsta
apprentice to one Mr. Coleman. And I wosdtf
very uiucb at what Mr. French say s, for kj
, he must hilt
the name and place of his birth,
sworn what he knows to be otherwise; ftrtht
married a woman, a native of Oalbway, 9m
had several children, one of h hich, iu the IMV
end of kin$|f Charles's reign, turned PapHli tfi
I believe thi' ^rrict' for it hastened iiis ftiMP
dcatb. I own part of the evidence miy ll
true, about his lieing in the West lndim> hjj
his mother, 1 believe, was never out of ItHtd
in her lite.
Dr. Oldish. What was his father's naimr
Rij?ei. John.
I.C.J. You say, you knew tbiifuryf*'
JifHi^ TreoMon tm the High Seas.
A. D. 1^96.
[518
to one Thomas Coleman
1 did so, my kwd.
r. How lonijf is it since you saw him ?
1 cannot be positiFe, 1 think at the
I of' GUtoway m 1601. 1 cannot say
It or after ; liut I saw him .about that
knew him, and hare known him from
I knew him a school boy, and knew
en.
I Ikrtam. What year did yon know
I dare not be positiTe ; I remember
icnlarty well.
f. Are you sore this is the man ?
I know him as well as any face I
1 came accidentally into court out
ity ; and one that knew me, that was
ray, gave an account to the king's
ind so I am called to give evidence.
r. Do you know this Robert French ?
I cannot say I know him, for 1 see
in the dark ; if 1 saw him in a better
nay be I may. (Then Robert French
p ror Mr. Rivet to see him.) I think 1
the face, 1 am not certain.
f. Do you know this gentleman ?
k. No, my lord.
/. Where did you live?
k. In Connaugbt.
/. Did you know Joim Vaughan or
f?
i. I have heard of him, my lord.
Powii. What trade was the prisoner's
He had the market several years ;
rery well, and kept a public house in
iUfpt. iMd you know any other Tho-
^an but this ?
L No, not in Galloway.
This may be a confirmation of what
' it be the same gentleman, his hair is
f. Pull off his peruke. (Which was
in. My hair is not red.
1 How are his eye brows ?
in. A dark brown, my lord, the same
Femii, Let somebody look on it more
•ly. (Then an officer took a candle,
ed on bis head, but it was shaved so
colour could not be discerned.)
Ujpps. We can give an answer to this,
we shall prove that there was one
Bghan at Galloway, and he had a
only that died ten years ago. As for
Et, ho is a mere stranger to us, we
thing of him ; and, by what I can
be comes in as a volunteer, not sub-
j cither side. And for Mr. Creagh,
ibew be is not to be credited in any
ft we shall prove him guilty of fek)ny,
be swore, that if his brother would
y him with money, he would swear
piHC kiiDi aod silop him IB Newgate,
and that he should not come out till he came
upon a sledge ; and if so, there is nobody sure-
ly can believe he will stick at perjury or for-
gery, or any thing else which may be for bis
advantage. Call Mr. Chistopher Creagh.
[Who was sworn.]
Mr. Phipps, Pray do you know David
Creagh ?— C. Creagh, Yes.
Mr. Phipps, Is he any relation to you ?
C. Creagh. Yes, he is my brother.
Mr. Phipps, Give the court and the jury an
account what you know of your brother f
C. Creagh. It is an unnatural thing to come
on this occasion, and 1 am sorry I am called
upon this account.
D, Creagh. Speak what you have to say ?
Mr. Phipps. What do you know of yoor
brother, whether you have not found him
guilty of stealing any thing?
C. Creagh. My lord, I am upon my oath ;
I have known something of it, he has stolen
some gold from me.
L. C. J. You pretend to be so very nice ;
you are to answer to what vuu know of his
reputation in general, and of liis way of living.
C. Creagh. His reputation bas been but very
slender, I am very sorry for it ; several in the
court can g^ve account of it, as well as I. He
seryed a relation of his at Newcastle ; he serv-
ed there some time, and came to town, and
came to me, and depended upon me, and I
subsisted him ; and he took an opportunity one
day, when 1 and my wife were ^one abroad,
and nobody at home but the maid, and went
up stairs, where mjr wife^s room is, and
there bein^ a sash window, he opens it, and
took out ot my wife's closet several pieces of
gold.
L. C. J. How did you know that lie did it ?
C. Creagh. I found it out aUerwards ; he
was my brotlier, and therefore I did not pro-
secute him. I did not know he had it, till
altcrwanis that I found to whom he had dis-
posed of the gold. 1 inquired who was in the
house, and thought the maid had it : and she
said none had b^n there but my brother; and
he at last owned the fact, and 1 had it again.
L. C. J. Have you any more to say of your
brother P
Mr. Phipps. Did he ever threaten to swear
against you? — Vaushan. Or me?
C. Creagh. He lias been confined in New-
gate 18 months, and I subsisted him in chari-
ty ; 1 allowed him all along ; and he has been
sending to me by several messages, that if 1
Bulisisted him not with more money than I did
allow him, he would swear me into a plot.
L.C.J. Did he tell you so?
C. Creagh. No, but he sent me word so.
L. C. J. Is the man here that he sent this
wonl bv ?
C. Creagh. Yes, the man is here.
Mr. Phipps. Let him stand up.
L. C. J. Where do you live ?
C. Creugh. In Wathng-street ; I am a mer-
chant ; I declare it is not in favour or aflcc-
tion, but only in conidciice, that I declare this.
hMllMia
Tul
C. Crtogh, Hi* M H, \mi Inni
«]»e»,ifl1i^it?
«« jMrf it ft«M llitt ifiiii lly wMliksr
C CfA:|rA, No ; but I ti44 » fewcf ainef H,
I^ C- J. Where ^ ttial 1«ner?
C Crt^h. I h«f* it iiqi hert*
. X- C, /. ih^n tfot an ifrldcBeir nf % Vflfr,
itbatit ttie 3riUT iHre leiv; It ouf bt to btre
Mr, M^. rft1ICbriito|tlirrn<!y«l^. [H**
lut Dmt 14 Ctc*|[Ii W »inl to ymi ^m^ta-
Ji^^iiM. wviral dmr*, *f h«i tnjTRiaiiei' Via
^^ A'WTftk, to AitliB^ film.
|>rO/Aa. WlKiirtiyfittiiTfmiillO?
£7- Cr<-a|f A. Ht \» (By MT^anl
0€f4cm. lliiii IHvkl Creft^rH l^ti <)f%eit laM
ml I «iimtia l«a bit br^titT, tlm( if bt»
wt ia]if»ljr iika w^ib rniMW niwiiey fa*
m^Aed i^ ^^ time, I i»iit p?m^ thrmi^h the
lj^|,dt»cki where ibis DaTra Cr^agh called I<t
^^1^ I «Ad 1 4skc>d Ifiiz) what be tlid there f He
-^d he was lo be e^yeiic* flgiinst cflpliin
y^Ugfiiin No certaiirTy, taid f, yen do tnH
him, Ho yott r Say* he, Hctc » thethrngf
^
gfllfj 8 WILtlAJI III. Tnal^i>f4^Thmm Vat^km,
[W
II ^ii bif^a btitter for me th»t f huH bc«D ofi
^jiifKe »^inf»t htto bdWe thi« ; «iid 1 «ifi
fOfW) to m^ Au evidt:t\<'e ugaiost htifi^ to i^i^e
laytt'lf i tod he bid me lt!1 his brother, God
4^n hii lou^ to *il eternity, if be did not wend
ll^ iuppty tbut diy, tre wmiM Have him lu
K*writf, and ihal be ihoffM not comr out
j^^fl till be e^mfj oirt op^n a litt^ ?
X. a/ Didbeany w»r
Mkydtn. Ve», myrerd.
C^Crtifgk, Bmf \nng h it tgORfr,
flt»\dBtif > „ .
A i^rff « I* w»i« ^<? J*j ^^^ p*"*
Wf.
Hm^f lint if be wotiH fin»
lid", be wtitiJtl bring him in for tofni
fri>tiid toCbrm tt|^«iiiM Nut.
Mr. F4>/^ Uii* hfl «7 ii9 «ii«
Brwem. Me did wy lie wmM aflCcvwi i
mVfai^^ Wlwtdidyi* km^Mmwf^
[f ^inMMl Miy mm r
Mfytm* W said be btd r*tbvr
unites were
tri<!d ; more ttmfi dul, ht?iV wnt Mr, Wroib's
tij«ii wat win* itir M tltf name time ; wod b*-
cftinu he ibould itol ht^f what yu» mid, yo«
(cHik me ^ t!*e d*»or.
Mr. Ph*ppt^ 1» Pftiiwl Bfvmi here?
I He apiieiwctf, utid vim iw^m.^
' Brv«<r. I Wtt* wihiifl^nu'd htre li.n' I know
noiw1i«l; ibr I know not Cttjitaiu Vflutjbim,
Mr. PhiPfii^ *»if*« ^^ >*a^*^ *« Ok y<^u a
Aiie«itiui\ 1 l>o yeii know, or b«tc yon hewd ot
JhifidCreBlih?— Brywn- Ye*, Sin
Mr. P%f*- WiTI yon give an arrOiTTrt 61
fifbtl bi^ hum 9(uid ofg^eariag a^^AinAt iiiij body ?
j^yflif. H« bi^ afT«ntefi«d hii bnnlieT le-
Mr inrhtk^r. Thit
fAf tli# «ajnecnintf ,
«lli«r iyi»M»i%f Cain CretghKR^ (Wl«
tttti liiimi,) W htt i?ounrrififnJM» bw? yo« ^
C^iiig^tm. AOfoniifgbt iniiii, I *rt«Mrt
is BMywwt* ; ! Mf^^« Mr. Mfv«l kfi0<i»# m
1- W^/v^j Di4 y<Jii k»»ffw oiM Mi
V ID, (hail lit e<r af feil^wmy ?
fAlc^, t k%\f*^ hfim Tefy **^
pir, Fkifp^. Lhj yofi kt^aw itl# fri<imr»l
lh^b«r ?^t.*f^Af«n. h*.K
Jtr. P^tppf. ll* yoi» t«<iii»itew i*i* ii«
JohnVAiiffiiMt h*d A9d(t HoMMt Mi *M ^J
became of bioft ? *
Cr<if*#ffit. Y««* b« b«il M trtii TbOf»*j» ^ tat
1 uaderttood that h« went i«iiii«vvb«ri? »WP &*^
«?ciuntry » tnd i\wm dwMl » ««d ft wm mptm^ til
about tb« town.
Mr. Wi;fl?i. D« yoa hmm wbai b» iitd i
of?— Cr«ii|«(>ii. i (Mifiuot tell. ^
i., €. /. How lonf «^ did h* <lit F
€rtf%^<>i. Abotiiteoyiiirtaii** Ikw^iJ* j
the brttlbera.
Mr. Phipps,. DtJ yotf knffw that Thwiws
Viug^bflO ?
Crtighion. I knew hini very wc^VI. '
Mr. Phippt. Isrthif ^enctemin, ih« ptifl^ner^
be ? — ^tTei|:A/cn»* No,
Mr. Phipps. D« yow belw^^t! tlwt is it« iW
ifiaii ?— Oe*t'^#'»ii- I Mi We wot,
Bfe, PJIip|Ff. Dfd you ever kii«iw my e*€r
Til ym as V * i ig iiao F — Crti^ ft fo/t , No,
In^tee Turu^> Mini iifet Jobo Vitii^o »
SOD a|ipreotiee at Galloway to one Th«flN#
Coleman f^Crtighfm, No, « I kncnr o#l
JoEtice Tati&n, How oM w«» (iKit iPrti%
Th^mafl Tftu^mr, when t^>» kwew bifti ?
Cf r 4^ A f ri/i. 1 n a s b(f m a H h e □£%! fl<)<ir to Ihif
Tbotii*'i»f Vair^an thoi wtm repuK^ %y lie d€#rf,
Jtr»itee Tuttm. Wai noi ihat TlMiiitf
Vatig'biifi appr<rrficc to Mr. ColelfjaitF
Crtij^ktm. I canticft certafitJy tell*
Juscie^ Tuft<m. How old wtri thai 'IHi^tifnif
VsogbitB when ti« went ft way frooi (iiiit*j*ay f
C»ile/it^. Ic^timottefL
Jiffitice Tiffftrtf, WImt ieyonr own tgfr?
Cr^g AlOrt, Bly fi^e ia ftho^it frr6-ao(l*tweoiy.
£, C X Yon hai^ not seen hna in Mtf
I veew ?-*Crei|r/^<jn. No, my loid,
L C. J, CsE y<rti take it ujjofl yoor iilll
l\m is not the man yovl saw fen yewi tftf,
thtl Thomas Yniaghitn J on ktiew ?
Crnghkm. Yes^ tHy lool.
L.r. J, ilow old wftf be whtft yun wK*
at^gOHjiM with him f
MQ
>l^ H^ THmm «fi tketSgh Seas.
A. D. 1696.
\m
tefliifMlitalM
1..C;. J. HowloBgittkwt
OiteAlMr Tm yen*.
Z^Cli. Wbatitymir
taH MiliilMjf I 1 Mi6iMsi
1^ t;. J. Wbn If ymir
Mr. Uo«/er. Vou Miy ymi knew hinoi' ten
7«f»^gi» ; my wbaf sort ef peraon wn he,
■Dibow M kaitfier frtm ifan mm?
\ Cv«%Afmi. He wan better mC, and not qoiCe
M ty> M tbi» mm, mO foil ef the imali-poor ;
t l» wm tbe ^trrelfOmett boy in tbe whole
ttwn,
• ' 9d. Gem. Ytm my he wn net quite e^ tall
f* aMhii mmr
Cfdgkiom. Nik, he wa» net quite so tall.
** • M. Oem, Do yoa fbink he might not gfrow
* thosf Tbii wae tra yeari agv, when he was
wa sneeB yeaiw ova*
Mr. Cvmper. Yoo knew him at fifteen;
, kow kmc had yon known . him P
GreMfen, From my mfiuey, titl' he de-
fknadttieiown.
' Mr. Compet, Dnrinff aH thattime, what cm-
JilMikMot was he in P Tell some circnmslanoes.
Creigkitm, I think this Vauirhan went to
Otte Mr. JEtiMKl'a school.
Bfr. Cdwper. What to do P
€>eigktem, ' To learn for write and read.
Bir. C&trper, And was he Hot an apprentice
m thai time P^(>etfA<efi. leannotteN.
Mr. Cbwpef . Werf yov aeqnaimed with
'^^^mr-'^ragkiM. Yd.
X.C.J. TooKved nextdbdr tnflriikljmre
y^^am Mast be aeqoainted with IrimP
_ Creigkitm, ut was a fififhting boy ; for I
*">B member be did once (brash my cottsoondfy.
JLC.J. WberedoyonHTeoowp
Cfiighimt. At the Castle and Falcon In At-
^«ntate-sir«et.
L.C. J. What frade are ywP
Creigkten. A sbofimker.
Barott Fawig, How long* bare yon Kved
^f^-CrelghUm. This ten years.
Baron PamH. What did (liat Thomas
r die of, that ^fon say was dead before
le away, aa il was reported irp and
rP — (keighiw: I cannot teA.
Mr. Confer, Jhost now yoo said he went
^>itty from fiafbway, and it was reported there
* he wai deaitf ten yean ago ; now you say
tare been hi En^and ten years.
CreigMtoH, I came into Eogfaind aboot ten
larattro.
Mr. Camper, Dht yov hear it at Galloway
liifbfw yoo came away f
CretgktoH. 1 heard it at Galloway befon> 1
canoie to London ; ao<f there are many can tes-
tify that there was a report that he was dead.
Jfontiee TiiHon. How lon«|f was be gone
finom Galkiway before you came away ?
Cftigkien. I cannot say to an hour ; 1 heard
be was dead.
X. C. J. Wen, well, he went away from
Grikiway.
Juatke 2W<on. Haye you not been here
tweffiryeaiv?
CreigiU&n. Ithmk neV; I oatne a Itftle be-
fore the Revdotion.
Justice 3\irf0R. That it eight years ago :
just now yon said you had been here ten yeart.
Mr. Fhne. Call John Kioe. (WIto waa
swam.) Jonn Kuie, did you know one John
Vanghan in Galloway P
Kine, Yes, I lived with him.
Mr. Phippi. What ebddren bad he P
Kine. Four sons.
Mr. Phippi, Had be any of thoae sons that
Wa9 named Thomas P
Kit,e, Nut of those fonr.
Mr. Phippt, Had he a son TbtMnasP
Kine. Yes, he had ; lie died about ten or
eleten years old of the small- pox.
Mr. rhipps. Yon say yon lived whh this
John Yaogban ; k>ok upon the prtsouer at the
bar, is he any of those sous ?
Kine, Nu, sir, f never saw this man till now.-
Mr. Phippt. How lonyf did you live with
him ?^^Kine, About eight or oine years.
Mr. Phippi. Bat how long hare you been
come away from himP
Kine. About ten years.
Justice Turtm. How welY do these two
witnesses agree together P The other said he
died at fifteen, and was pitted with the small*
pox ; this man says he died ac tea, and of tiM
small-pox.
X. C. J. Where do yon lire now?
Kine, I lire in the city.
L, C, J. How long hare 3-ou lived there P
Kine, Twelve years.
L C. J. How luntr was this Thomae
Vanghan dead before you came hither ?
Kine. Heally I cannot be |M>9itive, I belitfre
about eight or nine years.
L, C. J. Did Tiiomas Vaugbsm die Of th€
small-uox? — Kine, Yes.
L. i. J, That you are sure of ?
Kine. I am sore that was the discMf Iw
died of.
L. C. J. You knew him weill, 1 believe P
Kine. Yt-H, my lord.
L. C. J. How old was he when he died f
Kine About ten years.
L. C. J. Where was he buried P
Kiue. At ChiUoway.
Just. T'irion, Why doe* not tlie oMisar lake
care ? There is one talking with the witness.
Can you now reconcile your evidence P (To
the pHMNier's counsel.)
L. C. J. Have you any more witneaseaP
Mr. Phippt, No, my lord.
Just. Turton, What were the oametf of all
the sons .'
Kine, The eldest was Johu Vaughin, th«
other William Taugbart, anotlier £dwant
?aogban, and another Jamrt VaUghatt ; thtC
was all that he had ifKve.
Mr. Whitaker, There is never t ThoiilMf
Yau«;han among these.
Bir. Camper, Tbdmas died Up and down h^
several places.
Mr. Phippi. Mr. Rivet, de yod Indw thd
' tif that Johft Vkui^ltiiu f
S WILLI AiVI Ilf.
Kiv9(* Be had ail these sons, John, William,
iTkomiUi and Jamca, He spcal^*- "< • ^-'h I M-
ramti ; 1 cannot exactly reiu>
I there was nucb a suii or no; ili „
f ^de idea of it, Uut ^m Wfi certain, J
bottias, I went lit *chatd with hiu), >
lliim in the year 1691ft about the suireuder ol
raailonay.
Juryman, U that roan at the b«r the some
[Thomas Vnaghau ?
1-4 Rnifi* 1 am^pofiiUve of Uiat.
Z. C J* Yon saw liitu at the surrender of
f ©alt»»way ?
Itit^f .' I did J it wai about tliat time.
Vaugkan. 1 am a subject of llic mot* rbi i<.
wiunn kiu^; and I deJ^irr-, though I ^i '
Jj^h, that I may bv examined m Fo
Imatter that touches me so near* And you may
i«ee by n^y comniissioo, my lonlj lliat' I aui u
) Frenchman ; which t (Jc&ire may be read.
X. C. J. We shall nol trouble you HJth thai^
Vattghan, I can shew you loy conriuiftsii>i>»
Mborein the kin^, uiy nvaster, tledarcs me to
^ be a suhject of France.
lir* (Hdtsh. Mr. Vaughaii, 1 tliiuk, you neci)
[aot trouble the court to read the commission ;
p lh« commission is tlie same as for all other sub-
cts^of the Frco.ti LIily utt^i>i!> he iij looked
upon aa a natui lUce ; and
he owns htii; , n;it<0Q be-
ore thejudffe ot the aduuraity.
E*. C. /. Hare you any more to say ? As to
llibe<eaLamtoatiou, who ran pruvL* (.hat 'f
Mr. CawUt^. I can jirove that, my lord,
[ QtU. Cawley was swurn.)
L. C. J. Is thai Thoujaii Vaughaii*!^ ejcaml^
atlon.
Mr. Cawicy, YeSf my lordi it la signed by
[t^m^ and taken before sir Charles Hedges the
iJSthof July, 16Q5.
L, C. J. 'ileaa it. (Then Mr. Cawley read
[llie £j£«iiiiiialion of Thumfti Vau^han.)
The S7th oJ July. 1695.
I Offieif4m Dt>mtni contra TriOM^ VAUOitAy,
Capuefn' I>iuvicuUt Tlie Loyal Clencartv.
[The Examination of Thomas Vaughan, hile
Commander of the tihip the Loyal Clen-
cmrtyt aged 36 years, taken (M'fbr** the Ri^ht
Worship Jul Sir Charles lln\^v%^ kt, Juiltr^
of the High Court of Admiralty of Eng:-
biid.
" Thlceiamiiinte satth* That he was horn
: ihc ddriiiuionii of ihti
^ his subject; hut refuses
lonswet i renU hti w»h born; Ihat
|e came I iincc about four yann ago
baseoT' ta&hipvalM the H^jv, vvhidi
Ij^ii: tajtfo from ibe Kn^lidh, ami
|C»||]« iti ii» ?r to Naotse iii Fiance, and 1
since been in France, or cruisin
EPresich sW^mi That be haili htren a c'ih-
[ inlander ever since he was 16 yctkin of age,
t ind baUi comnii&d€4 iCT«rml Frvoch pnrAteirrs,
and was
»l St. Ma
Blii'
nothing; but
prore im/r
It : but V
but v\)uil» dull
6 xa mill all- si ill
loigne; i^
persons i
aw!i' '
thai
am 1
Fr.
bail
fiu.i
Coveuiry man <rt war,
GonfleFt ; and « hat ttit
VCHi'
Be
Wll'
tlLi^i
lo itK \>Ai\ iiiiiii>y.,
pii\aletr about a ^4
caute out, ' ■'* '
u[nni till
told the >
|triiionei^
chai-ity ,
man, tvlio tdid ihe ^
taken inland »eivif.<
Fort Kcuo<[ue i afr
u|ion a sione at lU
what lo do Mi(h hiui::>tit, ihv. .
him on board for charitv, am!
Ihcs:. '-: ..•,,,■,,, ^ : L
m^
for
het
tool
tht
her,
mn
C JljLUi;^. Tm
L. C /. Mr.Vaii^han, hav
to say P
ruuj^hfin* It iM very hard clreaimtBoaei 1 1
, |„
11% fi iiitiiU** it i
tiihman.
1, C. /* You hu?r hid i Ttry fair Irodf i
ifS]
fit H^h Treason on the High Seas.
A. D. 1696.
[5S«
r99 ihiH have juttioe, be it for yoa, or agoimt
'OU.
Faughmu. I - hope your lordship will do me
ight.
X. C J. Gentlemen of the jary, the prisoner
t tiie ber, Thomas Vauflfhan, stands indicted
w high treaaofl, tor adhcriiuf to the king^s
nemies, vis. That he put himself as a sel-
ler in the aervice ot' the French king, in a
essel called the Loyal Glencarty, with divers
ther persona on board her. that were sub-
Bcta to the French king, and enemies to the
mg of Enffland, with a design to bum the
uog'a, and his aabjects' ships : and for that
lorpoae went in that ship. That tlie prisoner
vas on board the ship, and with such a design,
a^ved, without all contradiction, by several
aUneato that hawe been produced ; that is,
Ihit the two and twenty oar barge, which is
tha same called the Loyal Glencarty, lay ho-
vering about the Buoy in the Nore; those
mm in the Ctiventry imagined they hail some
Ugn of mischief to tlie ships, and they made
•Avbrni with the Coventry. It was appro-
beaded by captain Vanghan and his crew, that
the Coventry would be too hard for them, and
IB they did submit, and were taken. And
hKBg examined on what acconnt he came on
oar eoasts, it is confessed by him. That he
CUDS with a design to bnrn oor ships. You
nay observe what sort of men were aboard.
Yoa have heard It proved to yon^ that Critten-
^, tbe marshal of T)over, entered those per-
nn taken aboard the French vesael, of what
Htioo, and what qnaliU they were ; and there
vereiboot a dozen of these Frenchmen, for
fbey were entered as such. Now, for a sub-
ject of England to join with the king's enemies,
n paisuit of a design to bum or take any of
{ho king's, or his subjects' ships, that is an ad-
MRDoe to the king's enemies. But it appears,
Ml only that captain Voughan was in their
Mpaay, but that he was their commander ;
*hieh commanding the vessel, on board whicli
*^ French auhiects, enemies of the king and
ue kiofplom of England, is high treason, and
^particular faot of treason for which he is in-
*M. And it anpedrs that he had a commis-
*>0B fimn the French king to command this
^emA, tbe Loyal Glencarty.
Now tbe pnaoner having this commission to
*canmanucr of this vessel, though tbev who
H^ved nnder him were not nativeFrenchmen,
hat other foreigners, yet their subjecting them-
H^es to him, acting by virtue or cotour of
^ oommiasion, makes them to be the French
'^'s subjects, during their continuance in that
^[viee ; for otherwise all prizes, which they
"jooM take, wouM make them to be pirates ;
*nKh none will pretend to maintain, wlien
*"7y acted by a commission from a aovereign
prince, that waa an enemy. And if they shall
cnaie upon our coasto with a design to take,
<^ destroy any of the king's, or his subjects
Aips, they are enemies, though they were the
J«8ectsofa ■ • ■
prince or state in amity with the
n^r of England. But at this time there is ho
necessity of entering upon this question, be-
canse it is proved that divers, who were on
board this vessel, were Frenchmen ; the joining
whh whom, in prosecution of such a design, la
that kind of h'gh-treason, of adhering to the
king's enemies. So that if captain Vanghan
was a subject of England, he is proved guilty
of high- treason, if you believe the evidence.
But now it is insisted on by Mr. Vau^han
and his counsel, that though he was exercising
ho6«tlity against the king of England, and de-
signing mischief to his Mubjects ; vet, says he,
I was not a subject of England, I was bora a
subject to the French king. If that be trap,
then he is not guilty of high- treason ; he is an
enemy, but not a traitor : and that is the point
you are now to consider of, whether he be a
subject of England or France ?
Now as to\hat, he being taken under sndi
circumstance;;, and speaking English, it is
reasonable to be prettuined tliat he is a sutiject
of England, unless he proves the contrary.
But then you have heard by several of the wit-
nesses, that when he was at first taken, he ac-
knowledged himself to be an Irishman ; and be
did not only acknowledge it to them that as-
sistefl in apprehending him, but being carried
to Dover, when the marshal entered bim in his
book as a prisoner, he entered him not as a
Frenchman, hut he declared at that time bo
was an Irishman. It ma^' be, be did not con-
sider the consequence of it ; for the next day
he was carried before the mayor of Dover,
and then having considered better of it, that it
was not for his interest to acknowledge him-
self an Irishman, lie said he was born a subject
to the French king, and at Martenico. There
were Scotch nicii and Irtslimen taken at the
same time, and they were entered as of the
nati'>n they belonged to, and so were divers en-
tered Frenchmen. So that unless he hath
given sufficient evidence to the contrary, this
is sufficient to induce you to believe liim aa
Irishman bom.
But he has endeavoured to take off this evi-
dence that hath been given. First, he says, it
was when he was in ifrink, that he did confess
himself to be an Irishman ; but when he. waa
siiber, he said he was a Frenchman. And be*
sides that, he calls a witness, whose name is Ro*
bert French, to give an account of him. And
French says, that about fourteen years ago he
was at St. Christophers, on French ground,
and he did then nee this Thomas Vaughan ;
he did take him then to be about the age of
fifteen. He says he stayed there about four
and-twenty hours, and that he was in the com-
pany of tbis Vaughan and his father about five
or mx hours. He says, his father told bim at
that time, that this young man who was then
about fifteen years of age, was born at Marte-
nico. He says fartlier, that bis father did re-
commend this ioii to him to be a sea-faring
man, being the employment he intended him
for ; and he is sure this is the man. Thia
Robert French was asked, whether he ever
saw this Vaughan from the time ha first aavf
8WZLLUM nt.
lii»iili€MitB^h»«olilllriilim: ktmfM
hm iMTtr Mir liun litiee that time, till •Uiit
tip* ttOflib* ig9i He fives you ihw ic^eoutil
k>« W eame Iq meet with htm ; be tap he
itpie to Iowa f oad bein^ ft obiriUble man, he
Igatd U* ¥mi the prttoas ^ awi li«s c«iii« to New>
file to one ^folilfld ; «mI ibere he mw ca)}t»Mi
MUgliati ; iiud tboMgb be bail not i«au biiu fur
iMiiiiaefi yemrs b«*rori>, ^et be kneiv biro agtin>
•■4 if ipoaitif e tlmt hr i« ihe sAnie penon.
. 4aNJicr awears b« knew the prisoner about
Hmfamm^M^ be waa re^iuLed a Frenctiman.
Imv baa batn another witness prodtioeil,
wMcH la tbat Daacine, who esme up at a
F^a^difnan, anH laJketl Frf och, preteoJiog be
tfould not ^peaJc English ; but oo examiDatioit
ii waa ^fieovf re4 ibftt he bad ao employment
lit En^and, and waa a bmli^s follower ; and il
ftlipi^m be can soeak English tevy weil ; and
Jtotwitbatmnliti^ hie pretence, has ipven bU
#aai«BC« Ml English, And be iells you, That
)ift« abiMil tbe year 1669, did go to ik. Cbristo-
<|rilim« ttrf tiiirwakf^ to Uarteoieo ; and there
he went to ooe Williams^ who had a fmiid
whose tiajMe waa Vuutirhiiti, at whost; hoiite
4bem traa a cbriateniuff to be of bia aoo^ to
aahoB WlUiina waa to be godtaAber ; and tbia
«iliiaaa waa carried tbtther, and the ebild waa
.<bmveiied Thomas. He lells yoa he went
4»ver iL^hm to 8t. Cbristopbcrs, and to Marie- I
'^ttlea* in tbe year 1677, and that then he en- '
^lired for tbm child, «nd did see him. T\wn |
be isy»« ofler that he went ofer ai^uio 4o St. |
Cbhstophenf, aud to Martenieo about tbiiteen '
year9 a^, ai»d iben saw kkm ^mh ; and, I |
ibink^ nrrer saw him ainoe ootil vtfry lately ; |
#Dd this prisoner, be ujidrrtakcs to tell you, is
4ht very pt^rstao.
But ibeo one Harvey tells you be aaw bim i
in Fraaoet m die yenr 169^^ and tbere be was
• laJien to be m Preiu:bmati, and be lived with 4i
sNTficsso tbat %(Ad t»ilk, tliat Mi<1 be waa bar ue*
idiew, her sister's iiod ; and that be was hero at
Marteojco, This is the evidence b • ^ivea you
40 induce you to beheve he is a Fi<^cichaian*
Now, io tlie Hi-at place, before I open tbe
•viderM^ in aoawer lu ii, I iWsire you to ob-
arrve the wei^fbt snd iicipert ot' fibis evidence 1
tbst hath breti produced by ibefirtaotier. First, |
tor lliis Freiicb, tb^t aays bf aaw eapUio
Vaagbao fourteen years afo, wbeo be waa I
ib#4al ftlteen yesr« of ago ; be liad no fortntr t
.S4M|iiau»t«Dea witli bimj stayed in hia eom* j
pioy but BtK boors ; mod oaoa away within
fbitr-and twenty buurs aAer bia arriral ; aod I
never saw hiin eg^ain io loarteao years : it is a '
*alm0ie Ibing that he sliould know bim again
«0«eUas to be positive Ibut he i^ tbe same
I ; Ibr tn fourteen years there i« <& great I
lian ilia inaji ; for a man that has known '
^KMtailbei^ of fttWor and not aero him in ,
I yam «fW^ ibougb before be wa« very |
^iufalled iritb biJDi« ranoot so easily
m tcain. But liiiwev«r be bi pot itttt% '
PsofMHi bk iiatb« tbat be k ibe aame peraon tbat
[ 4HLMriilUrltnte. »
I m for Daarin^fim najrcaoaite hioii |
0
Trkt ^CapUin Ti<ma$i
tbat be abould take noiioa of a Gittp f
be saw christetiefl several yen
tbat be slun/ neoMr tu«i «&
bod not sscii I J years ; sure be ]
great Uking to tbi» obUd, ibat wben f ""
Marten ice, manv years after, be ah
iuquiftiurs after him : 1 mustleavf
to vou te coosHlerof: ibat be n
very poissihiA* t<MV
HA' tliia evuleiica
ho lufts kiKiwo tbe |
Hiit now -
b«^eiidea««<<«UM
oeaaea base bee ti
wbi^ tbty U»^^
Cres^h, wh'
aooer for two
reputeil U» be an k
way ' Ur [m^ M\r
h
h.
tions \^
poaaSbK
ne and i^^u ntiM^.
hand ; tbst he liath sreu btm write, and b« (j
bevesi it is bb< hand.
Then there is a gent'
oamebere by obanci\ <
be aaitb be knev ki
sras reputed to er^i
the rem*))ioii in Ird^uL, lu 1<jaI. ajid
Gafloway ; ami tl>at thl^ in isourfi
Taughan^ was \ns son, and he knew J
chil^ ; waa well ai3<|uunifed witb
bani h\
Oalbw
m aufe 4uis «
tbe priaoner
dtioiioQ el' < :
tbe prisoner
Galloway;
ciiuntuthMi-
tation and m <
what other Uroil^
no i4if«^etion n^nu
to baiieve, sir
ataotial.tbai
But the ^>iuou<
d<uivoured to aiin
first they hiive en
that he is an ill <
tliis town wb"* i
biiri sod t<>^
day. VI hi il
teuiber« bim mt up
I k yoi) to w bom ^ aril
--•V- t--":t* —rf r'-
U»bo Vf
-Ud
sitdidi
?m]
Jir High Treason on the fl/'gh Seas.
A. D. 1696.
But tlieD, gmnlmieii, as to the place of tliu
prifooer'tf birth ; two otber wittiessts arc pro-
duced to give you ntitfkctioii ttiat iliis capiain
VannfiiaD was not the son of thni Mr. Vaii<rhnii
of Oilloway, whose eviifencc I ' wUI oprii to
voo, and then will see how coherent they arc
n Ibeir testimony, llie tint is Crcighion, a
ihomiaker; he sdyii he knew Thomas Vaiighaii,
ilw MMi of Juhn Vaii<;(ian of Galloway,
ileiitten yenn since ; he was a Galloway i]):'ii
hfd, and lived the next ooor to John Vaii^ftiaii
that bad a fton lljoBiaa. lie says he has been
kivibont ten years in Englamf. lie sayf: lie
lUnks that Thomas Vauglwn, the son of John
TiDgfbsD, was about the age of 15 yeai-s ; but
ibt this prisoner is not he ; for that Tliomas
Tugban was disfigured with the small- pox ;
kmiembcred him well ; he had reason (or it,
ftrbe once basted him soundly ; and that he
vat away from Galloway when he was about
15 veara of age, and was reported to be dead ;
HI if it were so, this prisoner cimnot be the
ycituu.
The other witness is as positive as Creiz^h-
te; for he saith, he knew this John Vauffhan
sf Galloway, and his son Thomas ; ana that
Thottss Vanghan, son of John Vaoghan, died
■loot 10 years since of the small- pox. Bo that
Shavetbund two Thomas Vaughans: one
you of one that was 15 years old, and was
dbfignred with tibe small-pox ; and the other
tdb yott of Tliomas Vaugban, who died of the
■Nfl-poz when he was 10 years of age.
Tm are therefore to consider the evidence
ta both aides. The qnestion principally is,
Wbttber the prisoner be a subject of tne king
if Em^land. If you are satisfied that he is
sot to English subject, but a Frenchman, then
beis HOC guilty of this hri^h-treason^ but if you
■re satisfied, bj the series of the whole evi-
desee, that be is an Irisbnaian, and that he had
aesmmission from the French king, and that
beciiiizcd upon oar English coasts, in com-
pny with the king's enemies, with a design to
ftke, bam, or destroy any of the kinsf's or
Misabieeta abipay yon are to find him guilty of
Ac hi^b*treason whereof be stands indicted ;
[5Sfr
of the treason
ilbeniiw you arc to acquit him.
CL ofAr. Swear an offieer to keep the jury.
[Whicb WIS done.])
T [Afler a short stay, the Jury returned into
Gmm, and gave in their verdict.]
€1 cf Ar, Gentlemen, answer to your
IMM. E. Leeds.
Mr. Ijeedt. Here.
Crjftr. VatiM AreM^ and so of the TPst.
CLof'Ar. Gentlemen, are you all agreed of
yiur verdict? — Juru. Yes.
CI, ^,fAr. Wlio shall say for you ?
Jur^, Onr foreman.
CL tfAr. Tliomas Vaughan, hold up thy
hUMl. * (Which he did.) Look upon tliopiU
Mir. Mow sav you, is be giiilty of the biuh-
tciion whereof ne stands indicted, or not
fsibv ?— .Fureman. Goilly.
CLftfAr. What goods or cbatteto, 1and$ or
MIL. Xlll.
tenements had he at the time
committed?
Fi>renian, None to our knowlcdnrc.
CL ofAf. llien hearken to your verdict as
the coiirt bath recordeil it : You* say that Tho-
mas Vaughan is U"il'y o^ ^^^ high> treason
whereof he stands indicted ; but that he had
uo gooris or chattels, lands or tenements at tlie
time of the high -treason ccmiinittiMi, or at any
time since, to your knowledge ; and so you
say all. — Jury. Yes.
Vaughan. My lor«l, let me beg one favour,
tliat 1 may be used like a gentleman ; that I
may be sent to a chamber, and not to a dun-
geon ; and that'my friends may come to me.
L. C J. Capt. Vanj'han, they say you once
made an escape, and therefore the keeper must
keep with humanity, but with all security.
Vaughan, 1 desire 1 may be kept like a
Christian.
L. C. J. The keeper mnst do his duty.
CL ofAr. Thomas Vaughan, bold up thy
hand. (Which he did.) Thou standest convict-
ed of high -treason against our sovereign lord
the king; What hast thou to say for thyself
why judgment shall not pass against thee to
die according to the law f
Vfiughan, I am altogether a stranger to tha
law, mv lord : I refer myself to my counsel.
X. C. J. Well, then, you refer yourself to
vour counsel. You have had a fair trial, and
have no reason to compUun of it: If your
counsel have any thing to say iu arrest of judg-
ment} they shall be heard.
Mr. Phipps, My lord, the indictment has
two sorts of treason laid in it the one for ad-
hering to the king's enemies, the other levying
of war ; and with submisKion, I take it, that
the first is not well laid ; for it says that the pri-
soner did adhere to the king's enemies, but
says not against the king. Now e^ery body
knows that the French king is in war, not only
with England, but Holland and Spain, and the
emperor: But if a man join with the French
against any of them, he adheres to the king's
enemies; and yet it cannot be said to be
against the king ; therefore they ought to
have laid it, that he did adhere to the king's
enemies • contra Dnminuin l(c;;ein ;' it must
beaidin'r and comforting them against the Ling
that makes the treason.
L. C. J, It does say so.
Mr. J'/iipys. No, my lord : it only says that
captain Vaughan did udhcre to the kintf's cne-
inif's, an;l docns not say it was asainst the king ;
ami if that be trrason, is >%hat ^>e desire to
know.
L, C. J. If he adhere to the kind's enemies,
it nuict he ay:ainst the kins;, tlinu«fh he assist
them only agaiiifst the king's allies ;* for tliere-
' East's l*.r. c. 'i, s. 21. F.ist. 2^0. But as
to this niackstoiie says : " By the statute 2
Hen. .'>, Ci 6, any sul»i»^ct committing acts of
hostility upon any nation in league with tlic
king was declared to he guilty of high treason,
and, though that act was repealed by the stH«
.3M
8 WILLIAM III.
531]
by tbe king's enemies msy be more encou-
raged and enabled to do mischief or damage
to the king. 8u»|i06C vou assist tlie French
king against the king of Spain, that is now in
alliance and league with the king of England,
and the French in actual enmity ; that is to
adhere to the kind's enemies against the kiitsf.
Mr. Phipps. Wouhl that be treason, my
lord?
L. C. J. Yes, certainly ; though that is not
a point in this case, and so not necessary to be
determined now ; for theactof narlianient of
35 of £. 8. defines treason in aifheiing to the
kiog[*s enemies, and expresses the overt- act
ID giving them aid or comfort ; it is sufficient
to alledge the treason in tbe words of the sta-
tute, adhering to the king's enemies. An
overt-act alledgcd, shews it to be against the
king; and in pursuance of that adherence, he
did so and so: He was a captain and soldidr
iu the ship ; did join with the king*s enemies,
to. with a design to destroy tlie king's and his
sulgects ships : surely tliat is most manireslly
an adherence to the king's enemies against the
king.t
jQr. Phipps, The overt-act, if it were al •
ledged sufficiently, would not help it ; for if
there can be an adhering to the king's enemies,
that is not treason ; they ouqhtto alledge such
adhering as is treason ; and if the treason itself
is not well alledged, the overt act will not
kelp it.
x^ C. J. There is an overt act to shew it to
be against the king. Tt is said all along, lie
being in tliis vessd Cleucarty, '< cum diversis
sobditis."
Mr. Phipps, But then that overt- act is not
well allcdged ; for it is said only he went
a-cruisiog; whereas they ought to ha>c al-
ledged that he did commit some acts of hos-
tility, and attempted to take some oftho king's
ships ; i\tr cruisiiiGf alone cnniiut be an overt-
act ; for lie ini<rht ho. cruising to secure the
French nierchant-ships from bcinsr taken, or
for many other pur|K)^cs, which will not be an
overt-act of treason.
L, C. J. 1 bcjj your panlttii. Suppose the
French kinj*-, with forces, should come to Dun-
kirk with a dosij^n to invade iilngland ; if any
one should send him victuals, or give him in-
telligence, or by any other way conti'ibutc to
their assistance, it wouUI be high-treason in
adhering to the king*s eneniies.f
Mr. Phipps, if the French king had de-
8i^ne<l an invasion upon England, and cap-
tain Vaughan had assisted in his vessel in for-
warding the invasion, it would have been trea-
tute 20 Hen. 6, c. 11, so far as relates to the
making tlii^i offence hij^h treason, yet still it
remains a very great oflence against the law of
nations, and punishable by our laws either ca-
pitally or otherwise according to the circum-
alances of the case." 1 Bkickst. Comm.
♦ Kast'sP. C. c.S, 8.S1.
t Eam'sP.C. c.S.s,si.
Trial rfCafdain Thomas Vavghan^ [5S3
ion ; but here is nothing mentioned but
cruising.
L. C. J. Cruising about the coasts of Eng-
land with a design to destroy the king's ships.
Mr. Phipps, That design ou^t to be made
appear by some act of nostility ; for in ths
case of Burton and Bradshaw, and othen,
which my lord Coke cites, the agreeing to rise
and pull down inclosures, and meeting and pro-
viding arms for that purpose, is agreed not li
be levying of war ; and they were indicted he
conspiring to levy war, upon the statute of queen
Elizabetli. And in this case, here being ooty
a conspiring, and nothing attempted, it can bo
no more treason than it was in that case.'
L, C. J. When men form themselves iota ft
body, and march rank and file with weapooi
oflensive and defensive,* this is levyiuff orwti
with o|N?n force, if tbejieaign be public. Dt
you think when a ship is armed with goui
ice. doth appear on the coast, watching m
opportunity to 1>uru the king's ships in tka
harbour; and their design be known, and oii
goes to them, and aids and assists them, tbii
this is not an adhering to the king's enemies I
Here are two indictments, one for levying wir,
and the other for adhering to the king? mn^
mies ; but the adhering to tbe king's rnfiiiw
is ])rincipally insisted on ; and there mut bo
an actual war proved upon the person indided io
the one, yet nee<l not be proved in the other CMb
Mr. Phipps. The same certainly is necesnrj
in one as well as the other ; for barely adherim
to the king's enemies is not treason ; bnt then
must be an actual aiding and comforting themi
and a mere intention to assist the king's eoe*
lilies, is not an adherence within the statute of
25 Ed. 3.
L. C. J. If there be not high -treason in the
act alleil^c-d ; that is, if it do not make out la
adherence to the king's enemies, then your ob-
jection would hold good.
Mr. Phipps. The going to cruise, my kiri,
docs not make out an adherence to the kiog's
cminics; for his cruising might be forotner
purposes as well as to take the king's sbipi;
and vour lordship will intend the liestin favoor
of lile.
Mr. WhitaJicr, To burn the king's ships.
L. C. J. Tribj/. The indictment is laid (or
adhering to, and comforting and aiding the
king's enemies. You would take that to be
capable to l>c construed adhering to the Idng^
eiieiines in other resjvccts ; but 1 take it to oe
a reasonable construction of the indictment, tot
be adhering to the king's enemies in thebr
enmity. What is the duty of every subject f
It is to fight with, subdue, and weaken tho
king's enemies: and contniry to this, if heooi-
federate with, and strengthen the king's eo^
mies, he expressly coiitrailicts tliis duty of hil
allej^nce, and is cruilty of tliis treason of ai-
hering to them. But then you say here ii lO
aiding unless there wen* something done, flOMO
act of hostility. Now here is going aboifi
• East's P. G.c 2, 8. 19,59.
^r High Treoiom on the H^h Seas.
A. D. 1695.
[$st
intention to ilo such acts ; and is not
fortingf and aiding ? Certainly it is. Is
Fremdi king comforted and aided,
! hns got to many English subjects to
niainff vnon our ships ? Suppose they
whole fleet, or a consideraole part of
it thai aiding? If they go and eater
"ei into a regiment, list themseWes
"ch, though tney do not come to a
liii is helpmg'and encouraging ; such
ivethe enemy heart and courage to go
:be war ; or else it may be, the French
aid come to good terms of peace. It
ily aiding and comfortiDg of them to
accept a commission, and enter into
ps or war, and list themselves, and go
derlo destroy tlieir fellow subjects, and
king's ships ; these are actings of au
ature. And if this be not luiheriiig,
ny as well be said, that if the same
had made an attack upon our ships,
carried in it, that had not been so nei-
Bcanse that in an unfirosperous attempt
nothing done that gives aid or comfort
uemy. And alVerthiskindofreason-
' will not be guilty, till they have suc-
ad if they have success enough, it will
kteto question them.
^hippt. Intending to levy war is not
unless a war be actually levied.
J. Treby, Is it not actually levying of
they actually provide arms, and levy
id in ft warlike manner set out and
and come with a design to destroy
*/uppt. It would not be an actual levying
ralm they commit some act of hostility.
J, Yes, mdeed, the going on board,
3g in a posture to attack the kind's
As to the fault you find with the m-
t, there is a fault, but not in point of
ley might have laid it more generally,
have ^ven more evidence.
I Powis, However it is well enough,
f ou to say because they did not actually
is not levying a war ; it is not plain
ey did intend. That they came with
sntion, that they came in that posture,
f came armed, and had guns and blun-
9S, and surrounded the ship twice ;
me with an armed force; that is a
ivideoce of the design.
J. You would make no act to be aid-
assisting but fighting.
^hipp$. Then next 1 am in your lord-
idgroent, wlietber the statute of 28 of
by whidi captain Vaughan is tried, is
S and be not repealed by the 1st and
Philip and Mary, whieh saith, that all
I canes of treason, shall be at the cotn-
r. Now by the common law, before
mtrfU Hen. 8, treason done upon the
I tried before the admiral, or his lieute-
ind ny lord Coke, in the 12 Rep. in the
tke Mlniralty, aaith, the junsdiction
idmirahjis by the common law. By
me 33 Hco. 8, trtMon ooufinsed be-
fore three of the privy-council might lie tried
in a foreign county, but that statute is repealed
by the statute 1 and 2 of Philip and Mary ; for
by the statute 33 Hen. 8, c. 4, treason com-
mitted in Wales, might be tried in what county
the king would assij^ ; but since tlie statute
of Philip and Mary, it must be in the iiroper
county ; so that we are in your lordship's
jud^ent, whether the statute of 28 Hen. 8
be m force ; and whether, since the statute
of 1 and 2 Philip and Mary, treasons done upon
the sea, ougbt not to be tried before the ad-
mirals or anciently at the common law ?*
L, C, J, This is treason by the common law,
and the trial is by the method of the common
law.
Mr. Phippi. It is true that my lord Coke,
and other authorities say, that the statute 35
Hen. 8, for trying treasons committed beyond
sea, is not reiiealed by the statute of 1 and S
Philip and Mary ; but they do not say that
this statute is not repealed by the statute of
Philijp and Mary ; and the books beiofj^ silent
in this, is the reason why I propose this ques- >
tion for your lordships' judgment.
X. C. J. It is no mord a question than th«
trials of foreign treason, and then the determi-
nation of the trials upon the 35th determines
the question upon this.
Dr. OldUh, We must have two witnesses by
the rules of the civil law ; an extnyudicial
saying of a partj may be retracted by them at
any time, that is the civil law, and lo there
can be but one witness.
L. C. J. That is not the law of England.
Dr. Oldish, I do humbly conceive that the
civil law is not taken a^ay in this case ; for
though the statute prescribes the form of pro-
ceedings according to tlie rules of the com-
mon law, yet as to the crimes and proots, the
civil law is still in force ; and then the party
may retract his confession in judgment, mucu
more any extrajudicial saying.
Mr. Whiiaker, You are arraigning the ver-
dict.
L, C. /. That you should have taken notiea
of before the verdict was given. But we think
there is no danger in hearing this objection,
because it is so easily answered. How many
witnesses were to the confession ?
Sir Ch. Hedges. We are not in a court that
proceeds aecording to the strict rules of the
civil law ; but if we were, that law is not so
absurd as to allow that a party may retract his
confession at any time, so as to make it have
noefiect.
Dr. OldUh. There must be two witnesses at
any time.
Sir Ch. Hedges. So there are here to the
coniession ; but yon mistake, if you think that
every particular is to be provnl strictly as the
civil law requires; for the end of the statute
whkh directs the proceedings of this court, was
to faciliute the meUAd of making prools, that
being found difficult by the course of the civil
• £nrt'sF.C.c.9,s.iO.
5S5]
8 WIIXIAM III.
Triii! of Captain Thomas faughan.
[sa.
law ; and therefore wa* that statute made, as
plaiuly apjiears bv the preamble thereof.
Dr. Oldish. There is a new statute that re-
vives that statute agaiu, and that requires two
witnesses ; whereby it is reduced to the rules
of the civil law a^aiu.
L. C\ J. Two witnesses there must be ; but
then consider it is not necessary to have two to
every individual overt- act: for suppose there
be two overt- acts laid in the indictments, for
one species of treason, compassing and inui-
gining' the death of the king; if Uiere be one
witness that he bought a da<^gcr, and said he
would kill the king, and he is seen, it may be,
cuing to the king's bed-chamber wtlh the
i!aif;rer, another witness says, he said he would
kill t!ie king with a pistol, and bought a pistol,
and 4ie stood waiting to kill the king as he
came by ; tliat is an ovi>rt-act of tlie same
tveusou. If one witness prove one, and ano-
ther wit.ioss prove the other, that is suificient
proof \r,iU us
Dr. Otdish. It is another qu^tion, whether
lie be a subject ?
L. C J. 'Hiat is not an overt- act ; if there
be one witness to that, Jt is enough, there nee<1s
not two wiuicsses to prove him a subject ;* but
iipou the trial there were above two witnesses
to prove it, that was Criitendcu the marshal
;Of Dover, Creagh, and Rivet. 1 must tell you
as the doctrine of the civil law, it is not univer-
sally received in all countries; it is received in
several countries as they find it convenient, and
not as obligatory in itself.
Dr. Oldish. Yes, in all places, n.^ to proof;
for it is tUc law of God and nations, < ex ore
*■ duorum, vcl ti'ium/ &c. and one wiuicss is no
vitness.
Sir Ch. Hedges. Two witnesses may be ne-
cessary to convict a man of any capital criuic,
hut then it doth not follow that there must be
two witncss'isto prove every i>articular fact and
circuinst:ince. Jti this point, touching the
place of nativity of Thomas Vaughan, was
there not sufficient in his own confession, to-
gether with ihe otlier proofs on the king's be-
lialf, to throw tlie burden of proof upon the
prisoner? You youi selves seem to have been
of that opinion, you undertook to prove it, and
it is you tiiat have failed in that particular.
L. C. J. Our trials by juries arc of such
consideration in our law, that we allow their
dctermtnatiou to be best, and most advanta-
geous to the siiliject ; and therefore less evi-
tlence is required than by the civil law. So
said Fortescuc in his commendation of the laws
of Englantl.
Or. Oldish. Becanse the jury are witnesses
in reality, according to the laws of £nglan<l,
being presumed to 1m! 'ex vicineto ;' but when
it is on the high and open seas, they are not
then presur^unl to Im* * ex vicineto,' and so must
1»e instructed according to the rules of the civil
Jaw by witnesses. - -
BaroD Powit. This is not a trial by the
f JEwt's PI. Cr. c, 2, 8. 65.
civil law ; for that statute was made to W9d
the niceties of your law.
Just Ejfre. fie is tried with like evidoDct
as in other cases of high treason.
Dr. Oldith. Mo, the late act reqaim two
witnesses.
CI. of Ar. Blake proclamation of silenee.
Cruer. All manner of persons are com-
manded to keep silence, while jodgueol it
givinu^, upon pain of imprisouroeot.
And then Judgineut was given, aooordinf
as the law directs in cases of High Treaioii.
The COMMISSION of Captain Thoxai
Vaughan, which he had by Order of tbe
French King.
" Ijowis Alexander of Bourbon, earl ofToi*
louse, duke of Amville, commander of Iht
kind's orders, governor aud lieulcuant-geoenl
for nis majesty in the Province of Britany, ptcr
diid admiral of France : to all those wlioifaill
see these present letters, grectjng. Thekiif
having declared war against his Catbolie M-
je^ity, the favourers of the ofthi
crowns of England and Scotland, and iht
estates of the United Provuiccs, for the m-
sons contained in the declarations published by
his majesty throughouttheextent of his kiof*
doni, countries, lands, and lordships under liii
ol>ctlience: and his majesty having comoiaiMM
us to take care that the said dcclaiation he ob-
served, in what doth depend upon the power
and authority which his majesty hath bees
pleased to cuumiit to our sai«l charge of ad-
miral ; we have, accordiu*^ to lUe exjireM
orders of his said majesty, jriven leave, jiower
and permission to Thomas \uughaii, Ii\in«rat
Bulloigne, to arm and set forth in wariiU
n'anner a baiU, called the Loyal Clencarly, of
the burtlicn of ten tons, or therealiouts, which
is at present in the port of Bulloigne, wiA
such number of men, caunons, bullets, p(W-
dcr, slK>t, aud other ammunitions of vtr,
and pnivisions which are necessary to setbcr
out to sea, in a condition to sail aud cniiu
upon the pirates, and others without conimi^'
sion, as also upon the subjects of his Catholic
majesty, the estates of the United ProviDTCS,
the favourers of the of the cfn**
of England and Scotland, and other eontmd
this estate, in what places soever he can ineti
them, whether it be upon the coasts of tbrii
country, in their ports, or rivers ; also apM
their shores, or places where tlie said captain
Thomas Vau<;ban shall think tit to biM »
annoy the said enemies ; and there to laib
use oY all the means anid arts permitted u'
used by the laws of war, to take then u'
bring them prisoners, with their ships, v*^
and other things in their possession. .
*' Provided tlie said Vaughan shall kM^
and cause those of his crew to keep the Wi-
time orders, and that shall he carry, duru|hii
voyage, the flag and ensign of the Kii|^
Arms, and of ours, and eanse the preMBtM
mission to be rpgiatered in tbe rPfut'/ '^
nearest admiraUy where he tliall be eqiii|i|)eJ»
ADil leave ihfrc a roll signed and certilied by
btm, coDtainm*; ilie namei; am) siraames^ the
iiirUis and residence of his crew ; ami mnke his
return to llic suid place* or some other port oi"
I'^mijce, ftiid m<tkc hi>i rt purr hc<hre the officers
of Uie Admiralty, and uu oihei*,, of whuishnU
happened during his toyaj^e^ ami ^fire ut
le ttu^reiif, ami seiid his Kan) rep*iTt (o the
Seen irral of the marine, with the
|iA) iiig Ihe same, th;it ive may give
i4ich unjtrh iii*.'reupOQ as may he necessary
** And we pray amJ re<^iiireftHkiDj^,priijces,
poleDtutes^soveret^ns^e^italeii, rejmhii(!s, iiiemlii
fend allie?* «f thi^^ croun, anrl all others In
whom it »han appertain^ to give to the tiaiiJ
^augbiti all favour, aid, assii^larice and stic-
<eour iti ihfir porl«, %vilh h'ts saiil vessel » com-
and prizes, which he shall take during:
f oyasfe, witliout duing-, or suiferiiig' in he
lie to hito any trouble or hindrance ; oHer*
ttif if* do the like when we shall he by them
tbirreunto required.
** And we do com maud and require all marine
dficers, and others to whom it shall appertain,
H let him safety and freely pass with \m said
ffssel, arnis and tompany, and itie prizes
ifhich he shall take, withotit doing, or suffer-
ings to be done to Uini any trouble or biiidrance ;
] but on the contrary, to give him all succour
! and assistance that &liatl l^ necessary. Thcbe
' presents to be ol^ no force after one year, from
the day of the date hereof.
I *' fa witness whereof we have KijL^ned the0f>
; preNenti, ami caused iheni lt> he sealed with
the seal of onr armSf and coniiier-sig-ued by
the secretary -general of the marine, at Ver-
saitl^, the lOtb day of the month of July,
161»6, L» A. DE Bourdon.*'
♦^ By my IoihI de Valleticour/* (L. 8.)
"The present Commission was regislered in
the aduuralty of BiilWigne, after havioj^ been
. g-bCJi by lis .lames Abbot de la Cocherinc, the
kin^^s counsellor, deputed to the iutendency of
. Bulluig'ne, exereisiug" the charge of tieutenant'
' general of the aduiirallv, in the presence of
' the kin fir's proctor, at the request of the said
captam VaughaUt beiug;^ present, whom we
haie permitted to sail and cruL^e upon the ene*
mies of the estate. Dons at Bulloigne tb«
14th of July, 1696. Maoinon.
" Versionem banc Auglicanam in omnibus,
com sun origlnali Gallio eon vent re testor,
♦* WlLHELMUS H0CR£, Not. Pub."
He was afterwards executed according tu
Um Sentence^
594^ Proceedings in Parliament against Sir John Fknwick, bait»
upon a Bill of Attainder for High Treason ; 8 William III,
A. D. 1696."*
Proceedings in the House of Commons.
November 6f A, IQ96.
LD^IRAL RUSSELL acquainted the
Ifuuse of (Jommouft, that hi^ majesty hail
^ifen leave to lay before ihe House, several
^^pem in the nature of iQlbrmations of sir John
^^L • 4( There was iiidetd reason to apprehend
^H^mnult^ I for now, after the quten's death, the
^■-Jacobites be^aii to thiak, (but the ^^overmnent
^■^had lo«t tbe half of its streiit^th, and that things
^B oiHild not be kept quiet at home, when tbekiug-
^P •hould be beyond aea. Some pretended, they
^ were for pu1iini«- the princess in her sister's
|»hice ; hut that was only a pretence^ to which
the gave no sort of encouran^ement: king;
itraes lay at bottom. They fiiucied, an in?a-
(tiaa in the kind's alisence would lie an easy
attempt, which would meet with little resist -
«OCir: so they sent some over to Frauee, in
particular one Charnock, a fellow of Magdalen
4<»)lege, who in kin^ Jameses time had turne<l
Pa)Hai, and waa a hot and active agent amon^
tbetn : ihey undertook to bring a btidy of 2,000
'bane, to meet such an army as shouhl be sent
^Vifr; but Charnock came back with a cold
•jM)cauult that nothing could be done at that
im^i Mpon which It w^ thought necessary
Fen wick, in which be and several other persont
of quahty were named ; ami desired that they
mig;ht he brought up to the tabic and rtad ; and
that he might ha^e au opportunity lo jusiify
himself, or if he did not that he mit^ht fall
under the censure of the House. And Mr«
Secretary Trumbull hein{v present, did say,
to send over a man of quality, iv ho should press
the matter with some moie autliority : so the
I earl uf Ailcj^bury wasa pref aittsd on to go : hi:
was adniiitcd to a secret cotiversatian witli llm
^ French king : and this ^aie rise to a design,
which was very near being executed the loU
j lowine;^ winter.
I *' But if sir Johu Fen wick did not slander
king Jauies, they ut this time propl»!>(^d a
j shorli'r and more infallible way, by assassinot-
, ing the kintf ; for he said, thai ^ome camo
j over friHu Fmuce about this time, who assured
I their party, and himself in particular, that a
commis^jion was comiu*; over, (iiix^ied by kin«;^
James, which they attirmed they had seen,
warranting them to attiick the king's persou,
Thia, it is true, was not yet arrived ; but aome
aUirmed, they had seen it, aud that it
iruBted to one^ who was on hla way hither ;
therefore, since the king wu^ so near goings
over to Holland^ that 6e would probablv be
a
539]
8 WILLIAM III. l^roceedings against Sir John Fetttsickt [540
that he had his majesty's leave to lay those
papers before the House ; and if the House
pleased, he would bring them up to the table.
And accordingly (the House shewing a ge-
neral inclination lor it) they were brought up
to the table and read (being the account he gave
of the last plot under his own hand, and his
eminination taken by Mr. Vernon, afterwards
upon his trial produced) ; and after the same
was read, the House ordered, that sir John
Fenwick should be brought immediately before
them ; and that no person should in the mean
time speak with him, or give or receive auy
paper from liim. And the House further or-
dered that the, lord Cutts, sir Henry Hobart,
and Mr. Norris, three of tlieir members, should
see their order executed, and in the mean tune
adjourned to the afternoon.
Abont five o'clock in the afternoon, sir John
Fenwick was brought with a strong guard
grhich the lord Cutts had taken care fur) to the
ouse ; and being brought to tlie bar, Mr.
Speaker spake to him thus:
Mr. Speaker, Sir John Fenwick, the House
understands that you have shewed some incli-
nations to make a discovery of tlie designs and
practices of the enemies of the government ;
you have now an opportunity to do it ; and
the House require it from you, that you make
a full and ample discovery of all you know of
tbat matter.
Sir John Femcick. Mr. Speaker, I suppose
tbe House is not ignorant of my circuni^tauces.
I am indicted of high- treason, and iiave licen
arraigned : what i have done to serve thr kiirr
and nation his tiiajosty knows ; it iiath been
communicated to him by his privy council. 1
do not know but what I say may hurt n^.y^ch ;
and therefore I desire that 1 may have sonic
security for myself, and 1 am willing to tell
the full of all 1 know.
Mr. Speaker. Sir, if you please to wiihdraw
gone before the commission Ciuild be in
England; it was debated among the Jaco-
bites, whether they ou'^ht nut to take the first
opportunity to execute this commission, even
though they had it not in their iiands: It was
resolved to do it ; and » day was set for it ; but
as Fenwick said, he broke the (]e>ii;'n ; and
sent them word, that he noul<l discover it, if
they would not promise to ifive over the
thoughts of it: and upon this reason, he bc-
lieve<l, he was not let into the^<ecrot the follow-
ing winter. This his lady tol-.l mc from him,
as an article of merit-to obtain his pardon : but
he had trusted their word very easily, it seeins,
since he gave the king no wanting to be on his
guard ; and the two witnesses, whom be said
e could produce to vouch this, were then
under prosecution, and outlawed : so that the
proof was not at hand, and the warning had
not been given, as it ought to have been. lUit
of all this the government knew nothing, and
■us|)ectcd nothing at this time," Burnet.
for the present, the House will aend yonthdr
pleasure.
[Sir John Fenwick withdrew, and was called
in again.]
Mr. Speaker (Mr. Paul Foley). Sir Jobs
Fenwick, since you withdrew, the House btve
considered of what yoo said at the bar. They
do not think what you said is an answer to wbt
they require ; they do ez|iect a full and candid
confession from you of what you know ; tod
they think that the best way tor you to oblaio
the favour of the House is to deal ingenoously
with them-
Sir John Fenwick. Sir, 1 am in the hands of
the law, and 1 would not do any thing tbatUi
majesty mij^ht be an^y with; for I do est
know It is Avith his majest^''s consent : I bare
acquainted him fidty with all I know of tbe
matter ; this is all the account I can give yea
at this time. It is a dangerous point tbtf I
am under ; I know not but I may come to my
trial in a few days : and what 1 may say, nay
rise up against me in a court of judicature: 1
humbly propose it to the house, if they doMt
think it a hard case tor me to make any <
sion here, when his majesty hath alt I kooir,
1 shall be very ready to do what this honoaraUe
House pleases to command me ; but 1 dcm
this House \i ill consider my circumstances. I
would not offend the king, nor offend thisHooM;
Thereupon, Mr. Sj)eaker again spoke to him
to withdraw : and beuig withdrawn, the Hoiae
debated, whether they should acquaint him
with their having those Papers of Informatioo.
iiut they did not think fit to do it for this rea-
son, becixusp they thought these Papers were
a contrivancrc, and made by others for bim;
and that the best way to get the truth oat of
him, would be for him to tell his own story,
besides, if the House should let him know they
had those Papers, he would only refer to thote
Papers, as he had lately done, when be WU
examined by the king ani^ council.
It was also debated, whether there shoohl
bo any thre-ilening words used towards himi
but they thoun^ht that uot proper ; for hif
confession ou"fut to be tree and natural.
It was also debated, whether they should take
notice of his majesty's consent; but thatwM
not tliought fit, being thought derogatory to
the privileges of the House. So the House
ordercfl hitn to be called in again ; and Mr.
Speaker dclivei-ed the sense of the House to
him in these words :
[Sir John Fenwick at the Bar.]
Mr. Spcfiktr. iSir John Fenwick, the HooR
has considered of what you have Siiid, to eX*
cusc your luakiug a discovery of your know-
Icdgi' of the designs and practices of the ene-
mies of the government ; and they think whit
you stand upon is only an excuse ; they t' ' *
you have no reas<m*to apprehend the !
shuuUI b(* angry with you tor making any- J
covery to this House, this being the proper fl'
to enquire of all things that do relate to the!
II] upon a Bill ff AUainderi
Jfrarernment, especially his majesty's safety;
III von ousfht to discover to tbiem what you
WW. As to what you stand upon, that you
ould not be prejudiced by what you discover
fe, 1 am commanded to tell you, they do
ke notice by what you hare said liere, that
>ubaTe already, notwithstandiDg what you
y, discovered it to the king and council : and
e)- command me to tell you, that you have
I reason at all to apprehend, that vou shall
ITfr any tbin^ if you make a full ana free dis-
very here ; no man that ever did so, and dealt
nditlly with this House, ever did : it is in
<ur power to deserve the favour of the House ;
is required by the House, that you make a
Kovery ; and this is the last time that you
e like to be asked to do it.
Sir J. Fcnvick. Mr. Speaker, I know not
»t answer to make to this House ; I would
t willingly ofiend it ; what I have informed
eking of n a great deal ; and a man would
re some little time to recollect himself; and
lare been kept a very close prisoner, and had
oonvcnlency of pen, ink, and paper; it is
rd to remember just of a sudden ; and I would
Din^y be secure bis majesty will not be an-
)r witn mp. I was in hopes that his majesty
Hdd have informed the House himself ; he
tb all that I know ; my circumstances arc
rd, 1 am in danger every day to be tried, and
lesire to be secuiied, that what 1 say shall not
e up in judgment against me; it is hard to
die me accuse myself under these circum-
iDces, and very hard to put me on it now.
Mr. Sptuker, As to what you say relating
the fear of his majesty's displeasure, and the
XT excuse, you liave bad your answer al-
idy. As to what you say relating to time, if
« will now declare what you know and re-
Mnber, the House will take it into considera-
o, whether tbey will give you farther time
make up the rest.
tJir /. Fenwick. Sir, his majesty hath all
inly ; it in impossible for roe to inform you
it wiUiuut accusing myself: I do not really
mr what to ask but a little time, if tbey
•sM Tilnse to give it me.
Mr. S/tettker. Sir, you know already what
? llnusL' requires of yon.
^T J, Fenuick. 1 do : but it is no excuse
itlhaie made: what I have told is truth,
Ihebcttof my knowledge: i am not very
•d at speaking ; and if 1 might have a littie
M, 1 shall do what they please to command
i.
Mr. Speaker, if that be all you have to say,
jw please to withdraw, you shall know the
s of the House.
ir John Fenwick withdraws. Is called in
again.)
Vr. i!|pcalEer. Sir John Fenwick, this House
ncaasidcred what you stood upon when you
ft here last, that your memory was bad, and
Hyei desired time ; but the House think it
■■tier of great flDoment to the king and the
nfe BrtioD, Ibat those that are their enemies
A. D. 1696. [548
should be discovered as soon as possible; and
this being a matter within your knowledge, the
House do not think fit to give you time ; but
if they find, by your discovery, that you dad
c&ndidly and ingenuously with them, and have
told them as much as vou know upon your
memory, they will consfder of your request of
giving Vou time for the rest.
Sir J. Fenwick. When first 1 spake to the
piivy -counsellor, I proposed it to him, whether
1 nMght have a pardon without bt'iof^ an evi-
dence against anv man ; and in that case I
would ser>'e the £ing so as to tell him all that
1 knew. It was ujion honour that 1 did it to
him, and he took the words iu writing from
mc, and sent them to the king in Flanders.
The king's answer was. That he made no ob-
jection as to my being an evidence, nor his giv-
ing mc a pardon ; but that 1 could expect no
pardon, till he knew what I could say : upon
that I was encouraged to do what I did for his
majesty's service ; and have found in all my
business since, whatever 1 do or say, tlie an-
swer is, it is not satisfactory ; and 1 am where
1 was. When this was done, there was a mes-
sage sent to me from the lords justices. That
this was not satisfactory, and I must tell all 1
know: now, when a man hath told all he
knows, and this must still be the answer, it iflf
very hard. The king's answer was. That I
should more fully msS^e fi^ood what 1 had said.
Sir, I did af^r wards explain what I had in-
Ibrmed that honourable person, and still it was
not satisfactory. 1 hope I shall not find tht«
from this honourable House: I am upon my
life, and I hope this House will consider of it :
I know this House is good security if I had it;
but till I have it, I am under these circum*
stances, and I may at last be told all is not sa-
tisfactory : I desire the House will please to.
considtTuf it.
Mr. Speaker. Sir, you know the pleasure of
the House ; you know what they require of
you.
Sir J. Fentiick. 1 am very nnwilling to offend
the House ; but these arc very hard circum-
stances, to 1)0 told, when 1 have done all I can»
it is nt)i satisfactory.
Mr. Speaker. Sir, you know what the House
does cx^iect ; you must either give them satis-
faction IU it, or withdraw. (Accordingly he
withdrew.) And a motion was made for leave
to bring in a Bill io attaint sir John Fenwick of
high-treason; and af^ a debate thereupon,
the House divided. Yeas, 179. Noes, 61.
So it passed iu the ailirmativc.
November 9. The Bill was presented to the
House ; and afVer a long debate, the question
was put for the seoond reading of it ; where-
upon the House divided. ^ cas, 19(i. Noes,
104. So it passeil iu the affirmative, and Fri-
day morning was appointed for it. The same
day the House onlercd. That sir John Fenwick
should have a copy of the Order for reading
the Bill the second time, and a copy of the
Bill ; and that he should he allowed pen^ ink,
5431
8 WILlIAM III.
and paper. And further ordeml, That Mr.
Attorney General and Mr. Solicitor General
thould prepare and produce the evtdeDce
against him on Friday muming.
And Mr. Sfieaker this day acquainted the
Honae, that he had rcceive«l a letter from Mr.
Fuller, whicli he thought fit to acquaint the
House with; hut upon a qneation for reading
of it, it passeil by a very great majority in the
negatife; so that there was no division u|ion
that matter, but the letter was writ in the words
following :
"Sir;
" 1 presume that no person whatever, in the
interestof the present government, hath been
more actually en^ged with sir John Frnwick
than myself^ it bemg nry fortune several times
to bring letters to him from the late king and
queen at St. Germains, and to carry his an-
swers: 1 have also been with him at private
consults of the late king's adherents, as my In-
formations assert ; so tliat if I may be service-
able to the detecting his treasons, I shall be
very ready to serve the government, and to de-
monstrate my integrity. I am, Sir, &c.
" W, FOLLKR."
November 10. Sir John Fen wick sent the
Speaker a Letter in these words :
" Sir ; NezcgatCy Nov, 10.
<• I would have addressed myself in the
humblest manner I could to the honourable
House of Commons, from whom I received a
copy of a Bill against me with their order ; but
my keeper will not carry any paper from me
but to yourself, to whom I durst not presume to
send a petition to deliver for me. Therefore I
beg tlic favour von will please to ac(|iiaint the
House, that it Is my humble petition to them.
That thov would give leave for my counsel, sir
Francis f'emberton, sir Thomas I'owis, and sir
Hnrtholomew Shower, to come to me with my
•iolicitor, Christopher JDighton, to advise with
alone. The keener will not so much os let me
send the copy ot the bill and order to my soli-
citor, so it is of no u^e to me : 1 humbly beg
they will please to give order, that I may have
all assistance that is necessary for me, and that
yon will pardon this trouble Irom,
" Sir, your*s, ^fec.
•* John Fen wick."
Upon this Letter they did readily order that
lie should be allowed two counsel to make his
deti?nee, and that they might be alone with
liim ; and atrer some debate, did give leave that
he might have the solicitor he desire<l, though
it was said, his solicitor was a very great Ja-
cobite ; ancl it was insinuated, that he was
suspected to be coiicrrned in the I'scapc of
Go<Mlinan ; but it was also said, that he had
been made use oi'as his solicitor to prepare for
his Trial, and liefore that, in other matters ;
and so that it might not be thought thiit there
was any hardship upon him, in that respect,
the House thonglit fit to allow Mr. Dighton to
be hit solicitor.
Proceedings agahist Sir John Fenivick^ [5i4
Noveml»e^ J '2 . A I^etition was presented fnor
sir John Fenwick, as follows :
To the Hon. the Knights, Citizens, and Bw'
Gtessi^s ill Parliament assembled : The hon-
blc Petition of Sir John Fenwick, bart.
" Sheweth,
" That there lieing a Bill of AtUinder branghl
into this (louse for the attainting of yborpeli-
tionci' of High -Treason, and ^uur iietitiooer ii
advised, that there are many weiguty reaiOBi
to be oflTered against the said bill : Vour pdi-
tioner thert'foi e most humbly prays, tbst yosr
honours will be pleaseil to hear him bj \»
counsel a^uinst the passing of the said bill il
the bar ot this honourable If ouse ; and to ap-
point such time for the same, as to your bo-
noQrs shall .seem meet. And your petilkns
shaH ever pray, &c. " J. FE-^wfat.**
Which pra3-er of bis Petition was gnuiled.
Nov. 13. Sir John Fenwick was broagfet
to the House, by order, from the prino if
Newgate ; and tliere being a Tcry great osa-
pany of strangers,' both in the Lobby Mi
Speaker's Chamber; and the House being ftlf'
of members, to prevent the inconvenience Ihit
such a number of people crowdinif in n^
occasion, the Lobby was ordered to be dmd
of all persons that were not concerned, andibi
the Speaker's Chamber, and that the hack-door
of the same should be locked, and the key btf
upon the table : but it having been said, that
the Lords did admit the members of this Hoiiie
to hear their dcbati^s, there was private inti-
mation given the serjeant to let theui remaiain
the S^ioaker's Chamber, when others were le-
moved.
Then sir John Fenwick was ordered to be
brought to the bar : but it being a proceeding
of that nature, that none of the aiicientest mem-
bers could give a precedent, it was necesaanr
to settle some preliminaries ; and the first quea-
tion that was moved, was, Whether the Maes
ought to lie upon the table wbc:i sir J. F. ww
iu the House, or whether the Serjeant ought
not to stand by him with it at the barf
Mr. Smith. Sir John Fenwick being a pri-
soner, the mace ought to be at the wir, lad
then no member can speak.
Mr. Boi/le. This hearing, of any thing i
can thinlc of, is most like the hearing of tf
election ; and then the mace is upon tuetsbtei
and every one has liberty to speak and ask
queKtions.
Chancellor of the Exchequer. (Mr. Chariot
Moiituuuer) The Mace ought not to be upW
the table, becuuste I>e is a prisoner : tlie sberift
of Lrindon can't have him in custody here, aid
so tlicy tlelivei- him into cin»tody of tne serjeiBt
M I .' ./. ilouc. That argument would be ^li^
if he coultl not Ix; in custody of the aegoait
unless he h:ul the mace in his'hand.
Mr. Brother ton. The mace ought to beifV
the table, because the bill is to be md.
Mr. Chr, Miisgrave, The mace otigbtts^
545]
tgoott a Bill ofAitainder*
A. D. 1G9G.
[546
njMB the table. Ne?eraoy bill was read but
tbe mace was upon the table.
Col. Granville. If tbe mace be upon tbe
tible it would be a jyrreat hardship to the mem-
kn that they cannot speak, and a great hard-
ship upon tiie prisoner that he cannot ask any
questions. My lord Torrtn^^n was brought
prisoner from the Tower, and upon account of
bi!i quality the house did not let iiirn go to the
bir: but while he was in the house, the mace
VIS upon the table, and he gave an account of
tbe whole campaign ; and every body was at
Eboly to ask what questions they pleased.
Attorney General (Sir Thomas Trevor.)
The matter is very new : and I think it is ne-
ONnry you resonre upon the method before
yoa call m the counsel, that yon may acquaint
the counsel with it ; I think it not proper that
the mace should be upon the table, because be
b a prisoner; though it may not be necessary
ihit tbe Serjeant should have it upon his shouf-
dcn aU the time, but he may ease himself. I
believe you will ask sir J. F. what he has to
ny, hot no questions to make him accuse him-
kU': and I humbly propow it to you, that after
the counsel is called in, they may open the na-
tsre of the evidence against sir J. F. ; and
then, whether you will permit them to go on,
or they shall %vithdraw, and the house will con-
rider what questions shall be asked.
Col. Mordtiunt. 1 hope the questions will
U taken down upon a paper by the Speaker,
■id then read to us, that we may see if they be
light, and so asked by the Speaker.
Kir ir. Williami. If the mace is not upon the
iibte, our mouths are muzsded : we are in the
Mturc erf judges ; and shall we |iass a vote that
the judfres shall not ask any Questions P
Sir iVid. Djfke. 1 cannot be informed witb-
wt asking of questions : [ know not whether
ystt are a House witliout it, without having
the mace upon the table. And will you act in
rmr hisfhest cafiacity without being a House?
do not know how it was when the lord Tor-
risgton was here; but when the duke of Leeds
«ai here, the mace was unon tlie table.
Mr. Boyle, I wish you iiad appointed a com-
Uttixife to have seuled the preliminaries, and
ihit tlie bill had not been brought in at all ;
what they labour, as a matter to avoid delay,
mny occakioti more. For though, wlien you
carry the mace U the table, no member should
hive the lilierty to s^ieak, yet any member hath
liberty to desire that the counsel may with-
diaw,' and tht-y must withdraw, and the mace
Bost be brouffht upon the table.
CkuMC. of Ejcheq. That gentleman is cer-
tainly in the right : but I think the mace must
•St he ii;Kin the table till when the prisoner is
berr ; Oiid I think the questions must be asked
by tho L-hair. The longest examinations that f
lemember was of the ailmiralty, and then the
HBcstions were asked by the chair. For the
iettsbcu of my lunl Torriiigtnn, it is true, he
bid not the mace with him, nut he came at liis
twn request, be came to give voit an account
•f hif proceediogs ; and in that case not a
Vf)L. Xfll.
question was asked by an\ member; any
member hath liberty to pro|M>se any questiouy
but it must be asked by the chair.
Afterwards the question was put, and it pass*
ed, That sir John Fenwick should stand with
the mace at the bar.
Then a question arose about reading of the
Bill : some gentlemen said, it could not be read
when the counsel was present, for the mace
wouU be off the table; (and tliey seemed to be
under a difficulty by having passed tbe last
question;) others said, it was not net^esbary to
read it whilst sir J. F. was present, he having
had a copy of it; but at last it was thought rea-
sonable, it being in the nature of a charge upon
him, that it should he read to him when pre-
sent with his counsel ; and it was said, it was
done so in the case of indkstments, though co-
pies were delivered to them: but it slioukl be
read only as a matter of form, as a charge to
which he was to answer ; but it could not be
reckoned a second reading, according lo the
rules of the House, the mace being off tbo
table ; and therefore it should be rrad again
when the counsel and he was withdrawn. And
it was said, that the Journals did tidce notice,
that in some cases, as in the case of an ad-
journed debate, some bills bad been read four
times ; and so it was agreed, and that difficulty
was solved.
And the serjeant took the mace, and brought
sir John Fenwick to the bar ; and Counsel was
admhted for him, and for the bill, viz. Mr.
Serjeant Gould, king's serjeant, and Mr. Re-
coitler Level, likewise king's serjeant And
sir Thomas Powis, and sir Bartholomew
Shower, for sir John Fenwick.
And Mr. Speaker opened the matter thus :
Mr. Speaker. Sir John Fenwick, the house
have received Information that you [\Awe been
in a horrid conspiracy against the life of his
majesty, and for bringing in a French force to
invade this kingdom, tmit you have been in-
dicted thereof; and they have considered the
nature of the crime with which you stand
charged, and how destructive it r/ould have
been (if it had succeeded) to the very being of
this kingdom ; and therefore, that you maynot
go unpunished, if you are guilty, have ordered
a bill to he brought into this house to attaint
you for high- treason, which haih been once
rcad» and will be now read to you at the bar ;
and then you will hear the evidence against
yon, and nave lilierty to make your defence :
and though you cannot claim any right there-
to, this house (to shew how reatfy they are to
favour you, in giving you any reasonaliie Im'Iii to
make your defence) do allow you counsel to
assist you therein ; and having granted you this
their favour, they doe\'pei*t that you will make
a good use of it. 1 am likewi^se to acquaint
those that arc your counsel, that this house do
ivckon their own priiilf^mv will so i^uide tliem,
as not to give any just offviice to this house ;
an<l that they will not be allowed to qusatMa
as
*iuiuuus mds.]
-«» ^ - -«* £-«•««• i»art. was, upon
1^ and Cordel
I or* Oyer aod
'am ^ -4 Umd. on the
nt Hiffli
and ad-
ILLUM III. J^icasd^gf i^aim^ Sir John Fenmck, [518
^» --^rnaHiHNa m mm snk « tt- * «cicd perMti (whom God long preserve) to
^ift m^9 wu^ * icfnMM; 't »aick , ■ the late kin^ Juines in Francet to invite and
• -. m imtiiit Ml lodiEe tnan any , " encoorage the French kinj^ to invade this
T*- *. ^u ii«i*fei«fe iiie> will :iui al- i ' kingduin with an armed force, by proniisng
puini. Let the Biil be : ' to join with and assist bim with men and arms
* opon such inviksion. And whereas the sanl
*sir John F«nwirk did obtain his majestvj
' farour to have liis liial delayed truni time' to
' lime, upon his rc|M>Hted promises of making
t!i^ and Cofdel ' ' an iogfenutiUs and fnil confession of bis
' * knowledg[e of any design or conspiracy
* against his majesty's person or goremmeBt,
* and of the persons therein concerned. And
* whereas be has so tar abused his majest^'i
' ^reat clemencv an<l indulgence therein, that,
* instead of making such confession he bath
* contrived and formed false and scandalous
* |iapers as bis informations, reflecting on the
' fidelity of several noble peers, divers mt-n^.lieni
^ of the House of Commons, and othenc, only
* by bearaay ; and contriving therein to en-
' dermine the goverumeut, and create jea-
; ' lousies between tlie king and bis subjects,
• lb . ■ -li. The .' and to stifle the real couspirac}'. And where-
J,^^ o^ «^ * %n Act to ! ' as Cordel Goodman, one of the wituessn
..MM <«AniM to the ;' against the said sir John Fenwick, to prort
^.^ I ijM^-n'^ Dts ma- [ ' the said Uvason, lately and since the sevenl
^ ^ «» jmm nvas justice, ' times apfiointed for the trial of the said lir
^,aw».M» > -«Q)ce. and , * John Feu wick, at one of \s hich times the said
4B». «. SK saiu coo- j * sir John Fen wick had been accordingly trieil,
..«. k . ««s i^nacl- j * had it not been for the expectation of tiie said
..^. ^NiA«* issit. — ^- I * discoveries so ofh n promised, is withdraw r^ ;
^--.^ JiwanU alias ' *• so that tlie said Conlel Goodman cannot be
. ^ i^pik %/>»•'•««« Uoimes, * had to ffive evidence upon any trial. Be it
— ..^ a:i.-*sd Rich- * cnacteirby the kinu's iiio-l ixcVllent ronjesty,
«r*f!%. ; * by and wiih the aJvicr ui.il i-onsfnt of the
.^ ... a »r before * LokIs SpiiitJia! ai:il Tonijiii:;'.], and Common*
-ituci* them- , * in this parliament assotiihled, and by tlic au-
w V »s»> Bench, ' * tbority oltlie samr. That tbe Mi.l'sir John
v^iv u 'jnierto • Fen wick is liereln convictiMl and attaiuicd ot
^ . » Uiem as . * High Treawm, and slrill s:i/fer the pains of
^. ^ -t^^atbre- { 'death, and incur alt forf* iturcs as a person
■itainted, f * attainted of High Treason/
;•. .*c'higb I
I Jeatn, I Mr. 6/>c«/rfr. Mr. Seripppt Gould, the house
r»d di*- I expects from you, and r»ir. Serjeant Lovel, that
t. .umted you open the cvidoiice y«>u have to prove the
. .f«*jctttl, < suggestions vf the Hill. '
. v'4d«els, iferj. Gmild. 31 r. Speaker, we are here, in
^ » *t Ro- obedience to 3 our nmnnauds, to give an ac-
.«i -.••td, count of the crhjnp;^, and likewise vf the e\i-
- • sinl ' dencc of the fart, that is aafainst this gen-
k- o ;v: - tieman, sir John Frnw iek. Th»« chari^o ni;ain>t
.^*vr«^ or sir J. F. is for hiijli treason, ai'd hlirh treason
.•««v of the hiirhtsl <le«rr<'e ; i! ••> i; » !'^n li.-ari fi de-
,v t- *>y:» of dejiosi!)^ ili«' !; :•■, a-j;' Mihvortin:r the
.vr- ijovornmeiit, ami v .n; ... *-■ [. i,, ^ IVeneh,
B».-v' nrh' V y. vir': y::'\ i !: ;sc .• •■•. Itriinljor c]nr;:jes.
.•■\'% ihjt !.• I :»..>.« "i.rj .'ir .!.»< t\ir>;.:r\iev. he h:iili
t» . i" ns'i. t.'i^iiJi.r \vi;ii ;■ •..!»! r«'l'< r>. v-ho have
^•.»ivii'.'. -I. .«ti-'J»!.'i 1. •:..!.( :j;«r«.\i tr«riiher to
!»5ii':4:in :i r.cji'* .1 i:j\ *. i-'jii i:s : r,!^«l in order
! 1 \\\:'i. ui a i« lit;. •:'. r <.. it :.••:. •! is char;jed,
\;!.-j me; contM^t..! t.. ^rln[ oi-.r tr> the late kiiijj
^ ".nes to hvr.ti-; i,i a t\\ :.'!i jiiv ?r njjon us.
li :s eli.r.-vil lihiuie, I'lat he rcnspircd to
<»y \M\i' ii;-. n iis, ail 1 i'o/tl;at r.-jrpuse diJ iiw-
tJU .
N»M
llN 1
r:
ifpoii a Bill of Attainder.
A. D. 1696.
[550
J ud other wiriike a*-* is. This I
; b« the sabsUnce of the cliarge, as laid
JodictiiieDt.— Now, may it please you,
pedcer, as ior the eTideoce of the fact
d and allcdged in this iDtiictinent : It is
rel oertainly to any at this time of day
n muiy trials, so many convictioDS, so
Utunden), that for some years last |iast
lath been a wicked ooospiracy to bring
ench power apon us, to suDTerl this g^ood
mcnt, and to depose the kiug ; hut God
ity, by ipecial proridence, hath always
tod and iniappomted them. We know,
Bce the business of La Hogne (in which,
ly a miracle, God disappointed them)
ive been still restless, and ha? e been in-
us to set op again this design ; and for
ive plottecl to bring in a French power,
re not bad any reganl to the king's meccy
I to them, and that in passing several
parliament, but hsTo still persisted in
M designs. — Am to the charge upon this
nan at the bar, we shall shew you that
: in the year 1694, for several months
vas a conspiracy carried on, but did not
Sects afterwards, in time, I thuik the
iog of June, or tetter end of May, there
leveral consults, or meetings, at the
Head tavern at the upper end of Leaden-
reet, where this gentleman that now
charged at the bar was present; there
everai gntlemen, and among the rest
ith and will appear open evidenceUhere
r J. F. my kmi Montgomery, and seve-
lers, whereof captain Porter and Good-
ne there likewise present: It was then
d, that one Chamock (since exeonled,
«cd upon by all to be present) should go
to France to the late king James, to
aicato to him their resolution and sm-
n being serviceable to him in levying
re to depose the king, and subvert the
nent ; who was to intercede with the
king, BO that there might be forces sent
ranoe. But after this, Chamock (pre-
II this ^tleman) comes and proposes
ig agau, and tried whether thev were
and real in their former resolutions,
eh they all replied, and dkl agree and
that it sbouki be done, and ihty were
alous in the matter, ami the forces were
lime pro|NMe«l. And what was that f
mly, no less than 8,000 foot, and 9,000
IS of French, with an assurance of
orse from this country. Chamock di'l
France, and did communicate this mat-
1 after he had communicated this mat-
eaoie back, and brought answer, that
imes bad endeavoured to answer their
lions, hot at that time the French king
ot siiare his throes ; but however, re-
lia thanks to them.
^lassvd «Ni till towards Christmas last ;
oica over sir George Barcley up<in this
BO, and there was a coroinmsion pre-
ir that purpose : and as to one part, he
■feag irith hioi a detMbncut of
of king James's guards, who was to x
tlieking. The next iHut was for raising a re-
bellion ; now that fell to sir John Fenwick'a
Kart. As to the assassinating part, you have
ad several examples made already. This we
have evuience to prove ; and if we prove this
matter as we have opened it, then I think there
is no person whatsoever, but will agree that this
is high -treason in the highest degree. Now,
Sir, here stands our matter : Here was an in-
dictment found according to the law you made
htst sessions of parliament, by two witnesses to
one species of tresson against sir J. F. ; wo
have one of tliese witnesses here viva voce :
But sir J. F. hath protracted liis trial by fre-
quent assurances of making a discovery, which
hath terminated in what you have already
mentioneil in your bill ; by means of which*
sir J. F. hath not been tried ; whereas he had
been tried in course, without these applications,
and found guilty : but now he hathhad all thia
time, that Goodfman is withdrawn is plain, and
we think (iiut that we must leave to Uie judg-
ment of this honourable House) may he reasona-
bly supposed, by contrivauce, to take off this
prosecution of sir John Fenwick. For why P
The inference is from a fact that we shall prova
to this honourable house : there hath been thO
like attempt upon captain Porter, but captain
Porter halli been more stedftut; he has been
so resolved, that he stood his ground; and, to
speak the truth, notwithsUnding he hath been
highly attempted : for we shall prove to yoo.
that one Clancy comes to captain Porter, and
tempts him to withdraw into France with assu-
rance of a pardon, and he hath 300/. paid him
in hand, and 300/. more he was to be |iaid
when he shonld come into France, to be re-
mitted by bills of exchange : besides, ho was to
have 300/. a year ; 100/. from my ton! Ay lea*
bury, 100/. from my lord Montgomery, and
the other 100/. a year from sir John Fenwick.
and thia to be an annuity during bis life : and
thus ftir we suspect sir John Fenwick may bo
concerned ; for his laily came (he did not coma
personally, but his lady did) and gave fm
honour and assurance, that it should be all per^
formed, and much more if he wouki withdraw
himself. CapUin Porter presently made a dis-
covery of tliis, and takes the 300/. which waa
paid down ; u|ion this it hath been so far pro-
ceeded, that Clancy hath been indicted for it,
and convicted, and hath received judgment,
and I suppose there hath been executiou : we
have the record of all tliese proceedings.
We have this circtimstancc farther in the
case, (which it is my duty to open to thia
House) to shew what lalniur there liath been
to stifle the tmth of the fact, u|ion taking of sir
John Fenwick : there was one Webber taken
with him, and he slid a letier into one FuwI'a
bawl, and this was to be sent to my larly Fen-
wick : and what is the import of this leUer ?
the import of it is (they could not prevail with
Porter as 1 opeued just now, therefore), you
must influence the iary, get two or three stout
jurymen to starve toe rest» for wo have nothing
551] S WILLIAM m. Proeeedi^s agaitui Sir John Fentnek^ [558
nmy say, bei rf present at the triel, iiodiia|r was
luaile raore piain ; and sir J. F. appcsnd tn be
equally conoumed.
To shew Kir John Fen wick is guOty* 1 cme
leaTe in add this, he did withdraw himself, anl
fled, and was enquired after with diligenoe',
and at last he was found. We shall make good
all we have bcg^un with, bv eridenoe (we Mpt)
to the satisfaction of this Uonse.
Seij. Gould. If yeu please, Hr. Baker, tbit
is solicitor for the king in this case, does attsorf
at the d(Nir wiih all his (mpers ; we desire thit
he may be let in.
Mr. Speaker, Serjeant, call in Mr. BalEir.
[Which was done.]
Mr. Speaker. What do you call Mr. Bskff
for?
Serj. Could, To give an acconnt of this is-
dictuieut, for we have a true copy from the n-
oord.
Sir Thtmias Powit. Mr. Speaker, since I sb
here assijpietl counsel for the prisoner, by the
allowance of this honourable tiouse, upon bii
application, without my privity, 1 crave lam
hnmbly to acquaint vou, in behalf of my dieal:
1 take it for grranted, that he is, I am suiewe
that are counsel for him are, a little snrprind
in what the king's counsel are going about ; fw
in truth, we were not aware, nor do we find thit
any notice was given to the gentleman at Ibt
bar, that there would be any proceeding sgaioit
him by examining of witnesses, or giving «f
evidence ; he bad (it seems) the vote of the
house sent to him, and likewise a copy of the
bill ; but I could not understand that the hooie
had given notice thai he should be prepared bj
witnesses, if he had any, or be at liberty ta
produce them. Nor was there the least aoiioe
to him, that there would he a proceediii|f
against him by way of givincf evidence. He
did, as I find, humbly apply himself^ by peti-
tion, that he mi^iit be heard bv counsel agaiul
the passing of the bill ; and I sliall very care-
fully observe those directions you f^Ve uf,
which I hope we should not have stood in need
of, but have behaved ourselves as becomes ost
and not have drawn in question the power iii
parliaments : I ne^'er had a thought to do suck
a thing ; but this I humbly lay before you fin
your consideration, whether, witliout any aorl
of nulitre, that 1 perceive, he had troin this
house, to make his defence to any evidence
and consequently there could be no need a
witnesses on his behalf: whether ^^ou will si
proceed, unless he had had forewarning to |ira
vide tiirnselt otherwise tlian by the prinM
votes, which (I suppose) he had no o|»ponuBiti
of seeing ; and whether, within the words ysi
are pleased to acquaint us with, we mayb
heaitl as to the nabonableness of this praem
ing, that by and b^e we must crave knvet
speak unto.
Mr. Speaker, Sir John Fenwick did peliciai
it is true, that he might be heard bv eosiBsal i
tlie bar against passing the bill ; bat Im lifcl
wise petitioned for oouniel and a aolicitor ij^
vise to depend upon : these things we shall
hnmbly oner to prove, according^ lo our dut}',
and according to the order of this House, and
then leave sir J. F. to make his deteuce.
Mr. Recorder, Sir, in what I say, J shall
endeavour, as I ought to do, to pursue the
method of this bill : and first I will take notice,
that it is the pleasure and direction of this
House, that we shoukl attend this House this
day, to produce the evidence against sir John
Fenwick.
The crime for which he stands indicted is
bigh-treason : I presume the learned gentle-
men on the other side will not deny, but that
the compassing and conspiring the death and
destruction of tlie king is high -treason ; and
that to endeavour it, or shew it by an overt-act,
to cause a foreign power to invade the realm,
or to hold correspondence, or adhere to the
lung's enemiea, is likewise high-treason $ and
therefore 1 shall not trouble the House to say
any thing to it one way or another, because I
befieve they will not deny it
In the next place, the bill does take notice
that sir J. F. hath been indicted at the Old-
Bailey, in May 1696. Sir, by the law of this
lionse of Parliament made last sessions, no
man ought to be indicted of high treason with-
OQt two witnessesi ; pursiuint to that law, sir
J. F. hath been indicted upon the oaths of two
witnesses, captain Porter (whom we have
her^ and Goodman (whom we then luid, and
ha did swear), and upon the evidence of these
two witnesses the jury found the bill.
We have this farther matter: for before the
time the bill was presented to the Grand-jury;
there was an examination taken both of Porter
and Goodman in writing, and I think it was
before a worthy member of thb House, to whom
I appeal in this case, and in those informations
fif I mistake not,) the same informations they
gave against sir John Fenwick as they gave
against Mr. Cook ; and upon the trial of Cook
they were sworn, and did justify aad verify tlie
inibnnations they gave before : and then, if
you please, we sliall call witnesses to prove,
that upon the trial of Cook, Porter and Good-
man gave that evidence that did equally affect
sir John Fenwick (for he was then withdrawn,
and could not be taken) ; and the evidence was.
That Cook, sir John Fenwick, with my lord
Aylesbury, my lord Montgomery, sir William
Parkyns, sir John Friend, Chumork, Goodman
and Porter, were all together at a consult espe-
cially ap|»ointed for the carrj'ing on these trai-
torous purposes; they gave the court a great
deal of trouble, whether Goodman was there
at that time, and they did call some servanta of
the house that ditl prevaricate, but the court
was thoroughly satisfied ; and it hath appeared
more plainly since, that they did abuse the jus-
tice of the court, for that 'Goodman was un-
doubtedly there. Sir, Cook u}>on the trial was
convicted, and had judgment of death. And,
Sir, he is attainted ; but it does not become me
to say, why he is uot executed : his Majesty,
'99 iloubt, bath great reason for it. But this I
t^poii a BiU qfAitmnder.
rer from the house was, that he should
red counsd to make his defence.
Iftofnof Pcmu, Yes, Sir, I have seen the
'the house ; and truly there did not any
ccur from it to roe, that it should be ex*
hal he should produce witnesses ; for
ioff that he might be heard aninst pass-
iel>i1l, and the order of the house being
might have counsel for making bis de-
1 did not apprehend that it impowered
be prepared as to bring witnesses, es-
there oeing no notice given to him to
iinesses, nor no way for him to compel
come here.
\art. Shower, BIr. Speaker, we do ac-
lige that we are so far reaily as to offer
osiderations against the reasonableness
ill, not against such bill in general, but
sir John Fenwick in particular, and
ose suggestions in the bill ; but in re-
' his making his defence against matter
and to answer the charge of the bar, we
ready. The first time we had notice
' John Fenwick shonki attend, or be
t to the bar, was last night at nine or ten
at night; [Note, This order wSs made
before at the rising of the House.] it is
e order said the king's counsel should
i evidenee for the bill upon this day ; but
tot ordered that there snould be evidence
h1 for sir John Fenwick, or at that time
should be personally present : we are
with submission, to offer what we have
i|^nst the passing of this bill, upon the
lions made in the bill, as sir John Fen-
case is there represented ; but to answer
I respect of truth or falsehood, that we
prepared to do : whether you will hear
I that, before you have heard us, in the
irticiilar, that we submit to you.
Speaker. Sir, you had notice on Wed*
last, that sir John Fenwick should have
to make his defence by counsel ; and if
il doubted whether be should be admit-
o it bv witnesses, you might have ap-
have known the pleasure of the House :
mt be what vou stand upon, if yon will
.w, yoQ shall know the pleasure of the
Gomld. I must confess wc depended on
expected no other thing than the bar
e. This was our order, and I appre-
tbat the petition meant the same thing :
I remember, it was an onler likewive
e king's counsel should produce the
evidence : what reason was there for
ideocp, nnlcM sir John was to apply
' lo answer it ?
Recorder. 1 beg your leave to observe
bat reason the counsel on the other side
Ills obfcctkm ) when it is the im|Mirt of
1, that sir John Fenwick is guilty of
eaaon : and your ordel* says, they are to
rd against the bill, that is to say, they
A. D. 1696.
[55*
K hnrd against the high-treason chaig-
I Una by this bill. Therefore the House
m M 10 produce the evidenoo against
sir John Feowidc, to verify the suggestions of
this bill : and so I oannot apprehend what can
be more proper at this time, but to prove t^e
fact against sir John Fen#k:k ; and it is their
business to defend it as well as they can.
Sir Thomas Powit. What was said by the
learned gentleman on the other side, 1 hope,
will be some reason why we might be of opi-
nkm, that we should not have occasion to pro-
duce witnesses : and the truth is, this bill does
no where so much as say, sir John Fenwick is
guilty of high treason ; and therefore Mr. Re-
corder was undir some mistake, when he said
the bill charged that he was guilty. The bill
does not any wliera make sncn an allegation ;
there is nothing but a recital that he was indict-
ed for such a treason: and then it recites, that
whereas he had protracted his trial by such
means, and Goodman had withdrawn himself;
(hot it does not say with his privity ;) and then
follows the enacting part; Be it enacted, &c.
So that there is no such thing as any allepition
that he is guilty, whereby we could imagine
that that was the fact or question between ns.
We now offer these things humbly to you, and
shall readily submit to what you think fit to do
in it.
Mr. Recorder. Sir Thomas Powis says, that
sir John Fenwick is not charged witli his doing
any act, or being guilty of nigh-treason ; but
the bill takes notice that he stands indicted for
it : then it will be enough for us to prove that
he stands indicted, unless the House think fit to
let us go into the evidence of his being guilty.
Sir S. Shower, We do not oppose the pro-
ducing evidence to prove the suggestions of the
bill, and tlie recitals of the bill specifieil: but if
they attempt to prove him actually guilty, by
living witnesses, as they have opened it here,
that we humbly beg leave to oppose. Bnt if
they think fit to prove the suggest ions of the
bill, that there was an indictment, that there
were witnesses sworn, and one is withdrawn,
and the promises of making confession, and
his prevaricating in that matter, we are ready
to make our defence tt» that.
Mr. Speaker. Gentlemen, you must with-
draw before you have the directions of the
House.
Accordingly sir John Fenwick, and the
Counsel of both sides, withdraw. And being
withdrawn,
Mr. Speaker. Gentlemen, you have heard
what is stood u[ion by the Counsel fur sir John
Fenwick: they say if you cull only Evidence to
prove the siig<^fs»tiuns uf the Itill, ttipy aro i-rndy
to answer them ; but if you call any evidence
to prove sir John Fenwick guilty of ii Conspi-
racy, by living witnesKi'S, thcv piTtcnd they arc
not ready, and say, They (fid not know tlicy
should be allowed* liberty to produce any Wit*
Sir T. Unleton. Tbe Counsel could not
think that the Bill should set forth that sir J.
F. was indicted, but that tho house would know
by what means ; and that Goodman was gone
555]
8 WILLIAM in. Proceedings against Sir John Fenwick, [556
away, and we should not ennuire by wliat
meaus. What are the uhjectionsby xho counsel
mii^inst tbe Uill ? Say they, we arc ready to
Stve reasoii'i a<;ainst tiic bill ; they i\o not .say
own-riy^ht u;^iust your jun^Jiction: but, say
they, we are ready tu shew it w not reasonable
in this case, as stand circumstances, to |»ass
this Bill ; Sir Jolur.s IVtiiion was tu be heard
down-ri<{ht against the Uill. If that was your
intention to hear him to that and tu that only,
I conceive you would not have wordt?d your
Answer as you did : you ordered him Counsel
to mako hU DeUnice : and at the same time
ordered the king's counsel to produce the Evi-
dence : llow could the\ understand it, but to
make Delence to t he Ev Idcuce ? It may be tliey
have a minil to h:i?e another fee: Whether
you will thiuk fit, in the circumstances you
stand, to ^vc them further time, 1 do not know ;
But the circumstances of the kinj^dom, and the
king's life, must be considered as well as sir J.
F. What is the meaniiitf that they are not
prepared ? I su|>pi«i> it is to hare further time ;
out I think your urdtT is so plainly worded, that
they could not ignorantly mistake it.
Lord Norrj^es. I risi* up t4> the matter of
fact: that gentleman tells vou your order is
idaiidy worded ; it is so, it ih^y had timely
notice of it : but the counsel at the bar tell you,
they had no notice of this order till ten o'clock
last night.
Mr. Speaker, That noble lonl does mistake ;
for that which they say they had no notice of
till last night, was, that sir J. F. should 1m*
brought hither; hut the notice thni he sh(»uld
be heard by his counsel for liis Defciuv was
sent him the day h* furc.
Lord Norri/cs. This vc:y oid«fr, for his ma-
jesty's counsel to proilucJ the Evidence, was
made but upon Thursday.
Mr. Speaker, Then'l mistake. But the
order that was mad*! upon his I'etitioii, 1 s^nt
away immetliatcU : hm the ordtT they uit-an,
I suppose, is that for ;iie hria;;in{; hiui hither.
Mr. Cou'per. Say the counsel for sir J. F.
We come prepared to make Defence to every
thing charged in the preamhie of the Bill, but
what is notcharged, we do not come prepared to
make defenee to. Ntiw, ihey conceive the fact
of High-Treason is not (•har«;Ld lipon him by
the Bill ; and if true, k is <>r;jrc:il weiirht ; hut
as it is, it is nnne: for fu^t, it is plain the
preaiuble recites, that he was inui.lf d for hi^h-
treasoii l)y the grand jury ; thiil is a tliar«4i; <»f
high- treason within the bill ; for it s.ivs, he
was charged by the oatl.s oi' his country upon
the oaths of two wiine.>ses ; and there i.-> the
very overt act recileil in tlic preiuhble of the
bill. Now, aUowing this its due uei;:iit, can
any one think, that sits hiTe as u privatt* ji]d<ri*,
that the hiifh ireasiiii thus rented, as f >uutl hy
the jjfrand jury, was uo part of his rhargc ? The
very nature of ihe bill speuks ; lor eonhl any
one think, tliat y(ui would ground a Hill of
At!;tin.'.'r upon :i su:^;^L'sfion, thai he ht.ini; in-
dicted of high-trrason, had spirited away om4:
ol the king's evidence, or for giving false ui-
formation? So that this itf trifling with the
house, with submission.
Sir li. Temple, Can any body say any thing
of the intention of tbe house, u heo it is redactS
into a Bill ? Is it not the bili that he is to make
his defence to? and the gentleman that spake,
says that nobody could think otherwise : Why,
sir, nobody is to think otherwise than tbe Bill
states it. 'Now the thing before you is, Whe-
ther upon the suggestions of this Bill it is fit for
you to pass itf The case of Mortimer was,
That be made his escape, beinff under an In-
dictment of High -Treason ; and it came before
the house. Whether, upon the statute of 25£.
3rfl, it was Migh-Treason ? But they did notde-
bate the fact. Now you have brought a bill
here, and all the grouud is, that he was indict-
ed for high -treason, had thus and thus prevari-
cated, and delayed his Trial upon promises of
confessiou ; and in conclusion, one of the wit-
nesses is withdrawn: 8ir, no man is to mike
his Defence but to w liat \% in the bill ; nor cto
you examine to any thing but what is suggested
in the bill. If you had put tlie issue upon tbe
guilt of sir J. F., he must have a fair trial ki
some place, and that he cannot have here upon
oath ; for upon all Bills of Attainders ihey ha?e
had a fair trial above.
Mr. Smith, 1 always thought wlien a Bill
of Attainder was to pass through this house,
that every man was concerned to hear what
Evidence he could, to make it ap|iear whetlier
the person was guilty of the facts that were
allcdged against him to condemn him for;
and I take it, the principal thing to be cod-
sidi-red is, vdielhcr i.e he guilty of such a crime
as df.^erves sueh a )ianishnieiit ; so that, I take
it, the question now is, Whether sir J. F. haih
iiad that notice tf> produce his evidence, as is
convenient ? For 1 think we should lose time
to let coii'.iscl ramble upon tbe reasonableness
<d' t»ur proceedings ; the (question is, \\ he-
ther he is {;uilty of the factl* Sir, 1 can ne^er
think the counsel could uuilerstand your order,
when it s:i\8, to uiakc his Defence, but it
must be to the fact upon which he is to be
eoiuleuuied. You have already determined
that pi:int, as to his prevaricating, but that is
not the matter that shall make uie tind him
guilty : hut the J^vidence that will weigh with
mt fS the evidence of high- treason, and how
far they can answer it.
■VIr."Hoo/)er. The question is, Whether or
uo there b(^ a sufficient guiit laid to this man*s
chaige ? For in all couris of judicature this is a
rertuui rule, You must proceed * secundum al-
' h^ata el prul>ata ;' and vou shall not go about
to prove a thing unless it be ailtdged. IS'ow the
question is, ^\ hether this thing be alledged in the
whole Bill, that sir J. F. is guilty t»f high-trea-
s(»n ? And if not, you will go about to prove
what is iiot alledged. Ii is true it hath been
ailedged that a Bdl hath l>een found; but
several have becMi indicted who have been ac-
ipiiited. It is possible the pris«)ner may be
guilty ; but I tliink vve umsi ol>serve that
method here, that is observed every where else.
5TJ
upon a Bill of Attainder,
A. D. IdM.
[558
Dd that is, not to go about to prove any thing
bat 18 not alledg^.
Mr. Cierk. The learned gentleman hath
nade an objection that perha|.a would hold
ery well in Westminster Hall : but I suppose?
le may remember this Bill must Ita^ e a second
eadinsT before you, as a house ; and tlion per-
laps the allegations may be different from what
hey are now. But the principal matter before
rou is, Whether this premleman be guilty of
ligh' treason, or no? And if they did uo: pre-
)are to that part, I think they were negligent
o their client; for it appears to lie that part
that is most sensibly like to affect him.
Mr. Hove. The more I hear tbe matter de-
bated, the more it seems strange to lue. I
bave heard the Bill read, and took notice of tbe
h«ads of it : I always understood the preamble
of the Bill to lie the inducement to the end of
it: 1 was mightily surprised to hear the king*s
eeunsel attempt to m;ike good 1 tbink tliiey
did not spcsik materially to one point of the
tOe^tions in the Bill, so that the allegations do
lieaify nothing: or else, if they intended these
tlicgations should signify any thing, we must
kiTe these allegations proved before we pass
ourjudgment upon the Bill ; whereas the conn -
id, instead of endeavouring to prove that he
vu indicted for high-treason, (though hinted
al) would prove him guilty of high- treason ;
iMtead of proving that he had prevaricated,
thej iay not one wonl about it ; instead of
praring that he has forg^ papers, in onler to
ificMte the minds of the king's subjects, they
■y DOtliing to it, though in the Bill it is alledge'd
» hii^h-treason. — We must not go here upon
Cie fancies and opinions ; no man that
my lord Delamere's trial but bclievetl
km to be guilty of the iact ; yet he was ac-
quitted, because there was no evidence suffi-
cient against him. I think you must stick to
ooe of these points ; if you stick to Ibis, to
pTOfc him guilty of high- treason, you must
titer the Bill ; and then that must be proved
oot of the mouths of two witnesses. If you
please to stick to the bill, then I hope the
nog's counsel will go on to prove the allcga-
tioM of it, or let us know why they do not : I
ihtll no more give my vote to hang him, be-
ctoae he is indicteil of hi^h- treason, than 1
■lull because he hath been m Newgate.
, Mr. Sloane, I think a great deal of your
line in debating this matter may be saved ;
llHiogh I will allow the Bill might have teen
i)r«WD better, and that a bar- indictment is not
* efficient ground of itself for a final decision
<rf'this matter : but when at the time of finding
Ifae Indictment there were two witnesses, and
|>ue of them is withdrawn, and as is supposeil,
^y his means ; if the Bill seems imperfect for
SQy thing before you now, yon will not stay all
theproceedings upon it ; but if yon see it im-
l^erfect, and it may be amended, you will amend
u at the committee. 1 think the favour you
hate given is abused, and that it is perfect
trifling from the bar. In one breath they say,
they could not get ready, for they had no no-
tice till last night ; and in the next place they
say, they will go on to every thing but hit being
guilty; and 1 believe they never will be pre-
pared for that.
Mr. Attorney General. I am very unwilling
to speak any thing in this matter ; because, sir,
by the place 1 have the honour to serve his
majesty in, us one of his counsel, if it was in
the course hdow, I must prosecuite on behalf of
the king : but I am very sensible while 1 am in
this house, I am in niuMhcr capacit}' ; I am to
vote here us a judge, and not as a party. That
which I do now tionble yrju about, is in rela*
tion to the matter thnt hath been objected;
That the Bill does not expressly affirm, that sir
J. F. was guilty of high-treusun, but only that
he WHS iudictcfi for it. Truly 1 thought, and
do still, with humble fiubmission to the house,
that that matter of afTirining him to be guilty of
high -treason was not to be inserted in the bill ;
for that will be the consequence of your judg-
ment and opinion, uptni hearing of the evi-
dence. That worthy member that spake last,
said, the Bill initfht lie better drawn ; I am
sorry we had not his assistance in it : But with
submission to his undcrstaniiing, I think that
had been too niuch presumption, till you are
satisfied whether he was guilt\' or uo. We
could only go so far as to set forth the faults
that we knew ; as, that he was indicted, that
we can verily, and cannot take this to be liko
the case of an indictment ; for there you must
affirm such and such things that cannot be
altered afterwards. But a mil in parliament
hath maujr' steps; you read it several tiroes,
and commit it ; so that you alter the sugges-
tions of the hill, as the rase ajip^i-s to you to
be verified ; and if you be of^ opinion that be
is uot guilty, you will not condemn him be-
cause he is indicted : however, that is not un-
matcrial, but proper to beset forth for a ground
of your proceedings, that there was a proba-
bility of his beinn^ gnilty from that accusation.
Therefore, sir, I confess, I cannot think that
thos(t gentlemen that are counsel for sir J. F.
coul.'l think, that vou did intend to proceed
otherwise than to fiear counsel as to the fact :
(bey could not think that upon proof of his
bein;r indictefl, that that would l»c ground
enun<:h for you to proceed to pass the Bill '.
for how could any hotly think, but you would
come to examine the fact ? i cannot see bow
they should come to mistake, unless it was wil-
fullV.
iWr. Price, The matter now delmted, is
What method shall he followed, or what evi-
dence shall lie given upon this Bill? or whe-
ther evidence ^^lall lie gi^on of any other mat-
ter than is suggested in the Bill ? I must con-
fess, making a false.' step at first sotiing out,
hath put us out of the way hitherto ; for in the
case of ray lonl StrafTuiif, \utnesscs were exa-
mined, anil adjudicatitm Mr.it he was gnilty be-
fore any onler fiir a 15 ill of Attainder. ' But
since you are in thiti wny, ctMisider w hetlier the
counsel against the Bill have gone ac cording to
their order: the order was, that counsel shuuM
SS9J
8 WILU AM III. Proceedings against Sir JtJm Fenwi^ [560
be heard to pro? e the saggestions of the Bill :
and the counsel for sir J. F. do not oppose
tliat : but the counsel for the Bill open more
things than are comprehended in the sugges-
tioDS of the Bill : for the su^^gestion is only a
ivcital, and hath nn {lositive averment. And
though the Bill and an indictment is not the
same, yet they must he the same in this, to put
a charge upon the person. If the preamble is
DOt to any purpose, what need they have made
any, hut'havo said only, Let him be attainted ?
To what purpose does sir J. F. come to the
bar r If it is to any purpose, it is to answer the
charge of the Bill. That learned person says,
to suggest that he is guilty till the matter is
profed, then theii; must be an amendment in
that iinint, and that will make it a new Bill,
and tnen he must have another day to answer
the new charge : but thev might as well have
said he was guilty of high-treason, as to say in
the enacting part, that he should lie attaintctl.
Thcreliire, it' the gentlemen for the Bill will
proceed and prove the preamble of the Bill, let
tliem ; otherwise let there be another dav for
sir Joim Fenwick to attend, and let ihem ilo all
t(»getlicr.
Sir ChriU, Musgnive. I think, as to that
learned person, nothing is to be laid to his
charge, for I think they have drawn the Bill
pu^-s'innt to the directions ; and I ain sure if
Uiey had drawn it otiierwise, before they had
kof>wu the sense of the house, I think they had
been guilty of a crime. That \\ Inch seems to
he before you, is what wus opened by the
king^s counsel, and that was to pro^-e the
treason. Now, sir, I would be glad to know of
any person, wlictiic^r «iny thing is to be ad-
uiitted to bo pruTul ut your bar but wliat is in
5*our bill. Fur let us have a little regard to
tlie prococdiniT in Westminster-hall : can any
perAou, upon an Indictment of high -treason,
offer evidence of any tn>ason but what is ex-
pressed ill the Indirttneut ? And i think this is
the saino in efli^irt ; r«»r hf^re ytui draw a bill of
uttaiudcr against sir J. F. aiid in ju«<ttce you
sL'ud him a copy of it, and, uitii ^reat favour
too, you allow liini connM-l to<li'KMitl himself to
that, ;is to the sntrgestions that are in tiio Bill ;
ollicruiso. to what end <lid you send him the
c<»py of the liiil ;' Now. if you will admit of any
thiui;' to bu im-ommI Imi uhut is in your Bill, I
know not of what i!anp;cr(>ns<MUisc(pienrc it may
be, for it is impossihlr to he propaicd for it.
Mr. S In-iioj- (h-w.al. If tlic rounsel
against the Hill conhl bo any way ntistnkcn, or
think the l»ill dcfertivif, I am for giving them
kniger time to make their best defence; but
think n-ither o:m' nor thr other o!' ihent true ;
Preamble, the debate, when it
went no fiirther than that he was aociued oj
high-treason, and was like to have bees brouglit
to nit trial : and to delay it, he pretended tn
make an ingenuous confession ; and instead ol
that, there was produced a paper which yon
ha%'e censured, as you thought (it, and iipoi
that you votecl a Bill to be brought in to it-
taint him of high-treason : what then coald h
expected more for the inducement, but the de
bate upon which it was oixlered ?-'If llw
house had thought fit to examine witnesKs \t
fore, as now^, no doubt but the Bill wook
have suggested that he was guilty of bigb-
treason ; but it is time enough for you to suf-
gest that, after you have heard what witaeoei
there are. If the counsel did not know thii
notwithstanding all that 1 have said, I am In
giving them time ; but, whh submission, it wa
impossible for them to mistake it : If the Kl
hadwent no farther tlian, < Be it enacted, tha
*' he should be attainted of high-treason,' the
they had some colour to say there were dife
ent species of high-treason, and they could M
tell to what particular facts the^ must a|»pl|
themselves : But when the Indictment is re
cited, which charges him with particular faru
and tells him by what witnesses the Bill wa
found, it was impossible not to know tbattU
was tiie high-treason you did intend to eaac
that he should be attainted for; but when the
say they are not ready, truly there may b
some reason for it ; for I beheve they aen
will lie ready : sometimes men will be witfall
mistaken, and sometimes it is their raisfortua
to be so. They say they are mistaken ; whic
of these are true, I know not, but we have see
already the time wlion he hath tritled nitb tij
courts of justice *, he hath delayed iiis tritl ti
one witness is withdrawn -, if you gite bii
longer time, he may have the good forluael
have the other gone too. i see no reasoa t<
you to forbear hearing of the evidence.
i\Ir. John i\hntag»e, I am not surorized i
hear sir J. F. desire time : for giviu;^ him tin
is giving him life ; nor for his coiiiisel to U
yon his witnesses are not ready ; it is a con
nioa excuse; I hardlv ever knew a |»^ra»
brought upon his trial, fmt that wus hise%cus(
and yet 1 have seldom known it allowed as
gmul excube : But it is objected you must i
» secundum allegat' et probat' ;' and uoUiii
being in this bill like what the counsel tor tl
bi'.l did open, it is not tit to hear them call wi
nesses to what is not alledgetl in the bill,
grant that; and yet I think tliey ought toj
allowed to call witnesses to prove every tkii
it is agreed tb
they have 0|>cned to you :
but yiMir order was to draw n bill tor attainting ' ought not to have brought in a Inlt, to
sir J. r. of high-iivastm ; and I think if tlie I jwjnt blank terms, he is guilty of high-tr
}MI had :^'onu no farther, hut enacted that he • hut they say, Vou should have cbai^l J
hhonbl h«' ailaintod of high-lrcavon, we had
strictly |n«i-sni»d your order ; for the preamble
is DO neeosnry part of the Bill. .<\ liill and
an Indi'tmont* are ot* quite different natures ;
there is a tovtn for :in indictment, but no pre-
cedent for an act of parliament. As to the
• Fill. tllViJ J,«J,J^.« (II.VH.^. ..».^ '^mm^m^^. —
what ti*eason he is accusefl of, and then tb
should hav^e been admitted to prove it. Wi
submission, the bill does that thmjj^ | fqr thel
does recite, that he is indicted ot bigfa-ticai
in compassing, fkc. This is the treaMNi ihil
charged upon him by this very UU: stWfi
561]
upon a Bill of Attainder.
> uu %vjll pcnmit tliein to prove what is allLHlorrdl I
III the liill. \Vhat*fli<l thif coiinselfur the hit |
ofien ? That at scvt^ral meetings they met tt* i
C(*ik»ult of the matter that this hill tsikFS notice '
ot*. J>itl nut he tell yuu when Charnock came:
lirst there lor that |Mir|)o«<r, and when Charnock
met them utrain for (heir a-isurance ? Now this
kein^ so plainly strX forth in the hill here, whicli
recites, that tins matter was proved b^ two wit-
ue»ses, upon the credit of whotie testimony this
matter was found, and that one of them is i;oue i
Away ; and, say they now, we are reaiiy to j
proCe the matter then sworn : Is not that pro- {
per to satisfy ;;enth.nnLMi*s consciences that j
will not ron% ict this man without evidence ?
Sir Fr. WiiiiiiHgton, I humbly conceive !
tW c|nei«liou >s not now, Whether sir J. V. is ]
«4niliy, or no ? But, whether the ohjcciiitns the •
ciiutrMC'l for liini have made, l)c so stntng us you >
viU ^rant what they inoic to you? They tell
ytHi, if ciiiuLscI M ill proceed upon nothing but
wliulis su((^esteil in tiie bill, according; to your i
Miler, we are ready to make our di'(c.nci\ It !
wa&said the kin<^ s counsel was ordered to ^i\e
their evidence ; that can have no interpretation
Itut as to the matters in the bill.— Suys the
kiDg\ counsel. We will prove him piilty : Siys
tbe(H)iius(d on the other side, I hope the house
vill (;ive us time to encounter them in that^ for
you have no such thin^ in the bill ; thescndin;^
thein the copy of the hill was as much as to
Mv, You iieeii not prove an\ thing but what is
tiieaiu asserted. It was said by the learned "«
gent, tlierc, that there mii^ht have been an act
u|'|itrlianu nt w hich might have said tiply, * Be j
*it fiiuctLiI, that such a man bo attainted,' |
wiihuut giving any reason. 1 cannot deny but j
It mi^ht be so without any n*asiin, but I don't I
belieie it will be so. Anil another burned !
{MrrMa was tur mending of the bill. !Sa\s he. |
^Mufii you ha\e the matter of fact prov'eil Iw.- i
lure y1)u, it may lead you to the umeiiuing of {
tlif l)ill, and insertiiig what >ou plca-^c, nin\ I
etidcliui; of it ; but does not anstvtr wIkU the |
^iUitiUii said on the other side: WouM \ou j
luikf lis a* swer what wc did not ki^iw that ;
vou wuu Id stand upon .'* The qucstiun is not,
^^heilwr he l»e guilty or no ? But, \\ uviher
the uiijections that are made be goud to give
tli«m tune .'
Col. Granville. Sir, the counsel, l»y what I
'^bscrfcil from them, have started two diliicul-
*i«s. and really, t«» me, IsUh seem very uiaic-
^i; the fir»t is, Whether the kin<4*s counsel
<liall be at liberty to prove any thing that is
Mt suggested in the hill? The'othcr is, Whu-
thersirJ. F. had due notice to make his di -
Ictice? — The first is a matter i>f \cry :;riiit
Anient : You are prtN!eeding upon a bill
**bere not only the life of sir J. F. but the life
^every man iii England is in some mciisurc
^oocemed : When a prccedt nt is tn:i<h* in this
caiie, nobody knows w ho iim\ be uifcct!*'! t>r
hurt by it; and therefore I desire \oii niii
lettle that matter, and h:i%e tin; judunietit oi' |
Ibe housef whether they ^^til adntit the counsel '
to pnive any thing that is not suggested iu tLe |
VOL. XIII.
A. D. 1696. [5fi«
bill 7 If you will, I do not see how any man
that stands at the bar of your hous4% can he
prepartd to make his difViice. For there,
.shall \ie one crime ulledircd in the b'dl, and
\s hen lit' comes to thi.- bar. the counsel that aru
to proM-cMf e. shall go cpiiti* off from that w hich
is Itiiil ill the bill, and produce you c\idencc Xa
a new crime ; and he stares and looks round
him, and you had as good allow him no coun-
sel, or copy of the bill. This you thought so
necessary for every man that was to come
upon his trial for his life for treason, that yoii
altered that trial, and declared no man E:houltl
have any treason proved against him that is
Dot alledged against him in the Indictment —
Wc have had great complaints of Westminster
hall ; and if the parliament shouKl proceed in
this manner, may have the same again. If
they are too rasli in their procee4liug8, they
will be countenanced mightily in tliem, if you
should proceed against a man, and condcmo
hiui for one thing," when ho is accused of ano-
ther. I de^re to know, how we can ]irocee4l
in a bill u|)on which sir .). F. is to be provetl
guilty, and lie hath no opportunity to answer
itl' *1 take it, as this hill is drawn, sir J. F.'s
guilt is no way conccrneil in it : For whereas
the worthy gentlemen tell you the treason i»
s|i^fied, there is no treason specified, other-
wise than be is indicted for it.
Mr. Gt'or^e liodnei/ hru1»c%. Sir, I think
the proper c|uestion before you is, Whether you
will allow sir J. Fenwick time to produce such
witnesses as he shall desire for hisjiistificationf
It is a little strange to me, that the gentlemen
that ai-e of s*ir J. F.*s counsel should insist upon
those things, to desire farther time for his pre-
paration, when (I think) it is very plain, th€*y
w ere told what they wei*e to pre|Min? for by tlie
bill ; which was, they were to justif\ sir J. F.
against those things he. stands indicted for ;
and the matter of the indiermcnt is the thing
to be proved l>efore vou, .and the witnesses to
make it g(Nid are like%%i<e mentioned; one of
tlicin is gone, but his irstimnny remains unoii
oath, not only to the grand jury, but in another
place, that Tarn told of: I do not think yoit
uiil think it rtasouaUlc, alter the king's counsel
have made out tiicir evidence, to give hiin tiroft
to make their observations upon the charge ; so
you will consider before you hear the king\
counsel, whether you v.ii! allow him farther
time, or no.
Sir Jtut. W i/liumMin. The gentleman that
.spoke last state* the case to b<'. Whether you
nil! ti.itik il uvkonable to allow sir J. F. farther
time ti) protiucc his witnesses? Vou may, sir,
make ihut the fiuc^titm ; hut that will depend
upnn aiioiiiei% whikh i^, \\ hcther you think
that sir J. F. had not notice enough to prepare
to defend himself ii^j^ainst the charge contained
in the preamble of tip hit!!' .Aiid I sidJ thisfur^
tlier, Whetljcr the i;iaiii;cr aiid way of express-
ing that paiticul<ii' cii ii,;c lii t!ic bill, is not so
v*<iiihd, so charged, :rs i.rre exprcsbly to be-
ri.mc a rh.'irj^^e thit \a k to uiisml-: for, and not
ouly -..s a ((laller of lac^ hlj»l.iri«:«»ily relat«d;»
8 WILLLAM m.
I
now ta come in ^roof herv : For if it proves to
be w«ll chan^ ilk the preamble, it is a pmti-
etilar fact of tffiL<io(i he ii to wifivter for in Lhb
kotMe; and then he hath bad time enoug-h ; so
thftt now you are to judge of your own way of
eiprcsning^ yotiraebea. 1 beUcvf? every gen-
tteman knows it was the sense and meanrng of
the hoiiae, that tho^ ai^e th€ {wKicular treasooft
meuticmtd in the indictment with which he
ibonld he tharefed at the bur, and have time
ftnd liberty to iGsfend httuself ; and not only to
the auctions, that he had been indicte<], ^c.
Now, sir, if you eihall allow these gentlemen to
except against your way of expresnug ynur-
•dvesi that I submit to you : But it is clear to
tDe^ that this was a very good and proper way
of expressinyr yourselves, to charge lum witb
the facta, and to give him liberty to disprove it.
If he and brs counsel understood it otherwise,
the question is, Whether their diA'ering with
jrou tn the way of expreasing it, shall he ulowetl
to tbem^ without taking a reaMOnahle exception
to it ? You arc tied hera to the strict rul» of
justice ; but as to the forms of proceeding
below, I do not think you are. Our tneanmg
was, txiost certain (though he was indicted, that
itwas nothing to us), that thejr should bring
their proof to our bar to prove him guilty ; ajiu
if you shoulii give him two or three days time»
you must mend your bill to tlieir way of ex-
pression, and to their sense.
Mr. Brvlherton. 1 take the ques^tion to be*
now. Whether the king*s counsel should give
evidence of any other matter than what is al-
ledged in the bAlF \3 to that, 1 must observe
to you, thnt this bill does not set forth any par-
ticular charge ngainst him ; it does not say,
thai be such a day did such a feet, whereby he
can make his deteoce } it is only the recital of
an indictment ; and it does not say the pnrri-
eular time and place where the fact was done.
Now as to what that gentleman savs, if it had
been said generally, tUnt he should be attainted,
it bad been sufficient. S2 H. 8, the statute for
attainting one for putting (mison into a pot, ^c.
there is the day and yeur when the fact was
cnmivttted ; and so he might make his defence.
Then the king's counsel offer to proTe, that this
€Joo<linan was conveyed away by sir J, F.and
there t^ no such charge in the hill ; for the bill
only ^ys, that he is withdrawn ; and I am of
opinion they ought to give evidence of nothing
but whttt \h in the hilt
Mr, Whi taker. As to the exceptions made
by llie coimsej to the insutficiency of the bill,
by wliich ihey pretend sir J. F» was led into
an error, so that he had no due notice, I must
fieeils »ay, if they wci^e in Westminster Hall
they would be in the right ; hut this house is
not' bound to those forms: for 1 believe the
eirnciirig* cUti»e would do the btisineas of air J.
F. well enough, if all the i-tsi were laid aside ;
and [ will con^itler it wJtJi as mueh tend?rnea»
and conscience lor the prisoner at the bar, as
any that brings arguments trom VVeMtminster
HalL ] wotdd consider, whether such a de-
teoee aa they have made^ihat from the bill (as
#
Procitdingi agiemjft Sir Jokm Femdekf [8
to what ia laid in it) he had not i
to prepare to make hta aMW«r: Tliif »y^l,
reeital is no direct afSmniioo in civil mwlMmi
It is an affirmation ; fir lo say, • Whoreaas
* a one is bound,* is good in a det^arsiliofi op
a bond. Now 1 would know, whether this I
not eoongb, to say, That be is indietcd« i
out any amvttiontltat Ite is guilty f
bill no redtai at all, it had been an i
but it may be, it had been auch ftn
that they ought to liavedotie aOflM^iO|f'i
parti, as to hftve deetred the opic'
house to what they ahoold heve ante
suppose there ba'd been tto feeitnl at all (t
you may make what recital you think fit) i '
should fir J. F. have donef There are i
ini^tances at common law ; A maji is in
for being a common barrater, aod there are I
instances given in the indictment ; why l'
he conies and prays the court, f^
declare what instances they wil i i
they may givo no other wortU lu rtitkoeer"
therefore* I queation tioi but that ehooM
come on his part ; he is to be heard ee t
enacting part of the bill; and umler
you could do no otherwise. Now if "
offer to give evidence of any treason thati
sperifieii in the recital of the bill, and the i'
sel make an objection 10 it, I ehatl i
them.
Sir Ed, Seymtmr. My lords »♦ and yon Wr^]
Speaker, what hath l»«?n said to \on by i
worthy [H^rson that npake la«t, n«
that if there had been no mori>
ing claute, it would have done k<: j , k- .
ness with a witnesa, or rather without a witnettj
But that is not the question we are di4
here ; but the question is, \Vheth»*r i
give sir J. F. longer time to mnke hla"
to that part tie insists on, that ii not containe
in the bill ? You are well satinlieil thsit yo
cannot go through with the suggeatioes
night, [past 3 i>*clock,] and the debates,
what relates to it ; and 1 find no itenon i
putting it off, but becaote it would \*e a delayj
and if it be no delay, that reason is nut of door
— ^They tell you, the counsel could not htt mki
notice of the matters suiKgeeted in tl
ment r I cannot tYiink that it revsoneb]
because t bey do know the practir^ -•
is such, that they can take n
but what is specified and cootuii,,-, .^ ll^ ^ .1-
And therefhre, there being no f^H diirgeil
upon sir J. F in the bill, i& it reflsoiwble ihejr^
Bboidd come aod accuse themselves here, ^
mnke a defence to what is not charged T Ne|
but, say they, it is implied : This is an imti
den (lath, and you ought to walk as tecnrely i
it as yon can. It is extraordinary that '
bring sir J. P» here to answer tor treasoti, wli
it IS allowed in the suggestions of the bill
you have but one witness to that treatoti ;
when you take these extraordinary steps, yo
khr^ulil c«jmply with him as much as yoti
in the forms, Forif treanoii be noltresuioti
Because many lords were in tlie |
upon a Bill of Attainder*
A. D. 1696*
\m
le prored by two witnesses, antl yon will
m liberty to make his defence, I think it
of time; for you cannot (^ throug^h the
(lijfht, to see whether sir J. F. "
. be guilty
t It cfiDtained in the indictment. And i
ire yoa one reason why he could not be
pd to make his defence in so shoit a time ;
could not produce his evidence if he had
ind if you ^re him Ioniser time, I siip-
ni will think fit that sir J. F. should give
oont of what witnesses lie shall make use
his defence ; and you will g^ive an unler
se witnesses.*
Harcourt. If sir J. F.'s business must
le, I hope we shall do it like rational
lod what we enact, be able to ^ire a rea-
?. account of it in the preamble of the
As to the question proposed, your de-
are run sereral ways : The first is, Wbe-
r J. F. shall be allowed further time?
this case, whoever 1 differ with, it is of
iture that 1 must desire the liberty of
ng my mind. I must confess, I see no
or enlarging' the time ; and I shall ham-
brait my opinion to othor irentlemett,
■ ■ ildh ' •
I ? And for that, pray consTder the
of the matter before you. — Sir, there is
X certain that is alledmi in the Bill ; and
you a]k>w him ftirtber time to answer
hicfa is not alledged, I cannot imagine
ffect you Would bare of it. It is said
, he stands indicted ; but it is no where
led, that he is guilty of that indictment,
eneral charge seems a great hardship:
is DO one thing that so many have been
y taken off by, as the uncertainty of ai*
; general facts in indictments of high-
I ; DOT has any thing been complained of
I trials for a greater grievance. What
foa done in the bill for regulating of
I cases of high-treason? In that Inl I you
efbrroed that abuse, and taken care,
batever treason a roan might be guilty
be shall never, upon his indictment, an-
any fact, unless the particular overt-
spreaaly laid and affirmed in his Indict-
-That which seems most reasonable in
ic to be done, is, not to enlarge the
Rit when you think fitting to proceed,
I apon what is before you. Here are
latten expressly alledged ; let them go
e radtal, see whether tbev can prove
Mt I canaot imagine to what pnrpoae
MiU give the prisoner further lime to
answer not|itng; for that which is not charged
is so.
Mr. Finch, Sir, this is a question, in my
opinion, of very great consequence : You are
very well told from below, that this is an un-
trodden |>ath ; and I am the more coofimied
it is so from this debate. We are told, that sir
J. F. or his counsel, oouM not be ignorant of
what they were to prepare themttelves lor.
For this was our meanin^fi says one gentleman,
though I finil the path is «o untrod, Me are vfry
unfiirtnnate in expression; of it, for we havt* not
said it at all in this bill ; we have said. Sir J. F.
was indicted, Ike. sir J. F. hath had a copy of
this bill sent him, counsel allowed him, and
upon a second readinff be comes to make his
defence. We are told, the proceeitiiig upon
this bill is nut to be renenibled to the proceed-
ing in Westmiiister-liall ; and this is sufficient
in a bill, though in an indictment it would not,
without alled^ing that sir J . F. is guilty. But
one would think, that if sir J. F. w ^lulty^
every allegation in the bill, that is, the induce-
ment to the bill, whkb is for attainting biin,
should be a good and just ground for the at-
er he shoulifhave further time'to prepare i uinder; and then, this gentleman, that hath
B A_ J ^ _ .i_^^ j__ .. bad a copy of the bill to preparefor bisdefence,
and shew you reasons why the bill sliould not
pass, though our proceedings are not to be re-
sembled to the ordinary proceedings, yet we
are to expect fhmi him such a defence as the
oniinary proceeding in Westminster-ball would
require: But I thmk this is hardly to be ex-
pectei! ; one might have thought, and reason-
ably enough, that it might have come into bia
imagination, that if there had been ground to
attaint him, by the ordinary proceedings and
methods of justice, the parliament would not
have taken an extraiordinary course to come at
it : For I can never think it a good reason to
proceed this way, that is, for the saving of
tiDie ; and if there be extraordinary ground
they miist guess at that out of the bill: Now
that b groiuided upon those suffgeations that f
have dtad ; and then I sboold nave imagined,
that whereas he had been indicted upon the
09fhn of two witnesses, as the law requires,
and one of them was withdrawn ; tliat you had
rather intended Co have charged bim witli
some contrivance to elude justice, whereby
you had reason to exert your extraordinary au-
thority to proceed against him by way of the
legislative; and I do not find we have any
precedent to warrant this proceeding, though
in oar debates we have endeavoured to find
one : yet I cannot but observe the consequence
•f thb hereafter : For whether we can find a
precedent to warrant this proceeding iu former
agesy or not, we are making a precedent for
our posterity. And consider the consequence
of this precedent you are making ; I think all
the bills in parliament are grounded by the
moat serious ways of deliberation, before you
oome to iudgment: And bills of attainder
ought much more, sure, to require the serious-
nesB of your debates ; but 1 cannot but ob-
aarvn the atepa now made ; I am ai'reid thart
J to gome aocoants, sir Edward
if ineeieh thos: «* I am of the same opi-
th tbe Roman, who, m the case of Ca-
aehrad, hn liad rather ten guilty persona
tneape, than one innocent should
To which lientenaBt general Mor-
■id to have replied as folkiws : *« The
■MBber. who apofce last seems to have
htt the Roman who made that decla-
of being a conspirator
8 WILLIAM III.
567]
was a wrongs step ai first ; I was not here the
first day : ^t I recollect some thinjii^ From the
bill itsdf ; the tenderness of those things upon
which this enaistini«p clause does stand. Here
was no evidence ^veii Ui induce the house to
bring in this bill of attaindi^r ; when this hill is
brought in the bouse, and the preamble that
iiuggests that which is the ground of the enact-
ing |>art considered in the house; and the
house did not think it reasonahle to proceed to
the reading of it a second time : I renienil)er
Proceedings against Sir John Fenxmckj
and less to forms ; I mean, to fi>rmi
dered niprely ns forms ; for it onght to
reason that is convincinj; to you: o
ought not to tie younelves to any fun
til is occasion, hut such as are ground
reuson ; and really i have not heard ar
thiit fell from any gentleman, that sh
doul)t of the nature and aggravating
stances of the crime of the prisoner
hath consisted with the great candour ;
tire of this house, to shew this favoiu
we were told, Won't you read it a second time, | prisoner before you. The counsel ss
are unpre|iared ; if they mean the%
prepartf themselves for more grounds o
eueo and chicanery, 1 woul«l not giv
farther time ; J caimot perceive there
reality of ari^uineiit in it ; and there i
soning, as in religion, sometimes a foi
out a power.
8ir rho. Difkc, Sir, you have now
tiiree questions before yuu ; 1 desire ;
confine our debates to one point: .
whatever opinion gentlemen may be
ceruing the proof, I thinlt-the point unt
considei-ation, if you will make a rigl
ment, is the preamble of your hill,
take to be the foundation of it, and tl
for which you attaint this gentleman :
preamble does not recite, and say, he i
but only indicted ; nor set forth an
nay, it does not say, he was arraigi
that these things are very uncertain,
you nuist attaint him fur tlie things n
your bill. And you know tliese acts <
(ler are extraordinary methods in cases
son ; and if you put it upon this |H
the act attaints hiui for one thing,
counsel stiull prove another, it niake»
uncertain ihaii it is, and no man can
when you may have an opportunity of having
those suggestions proved to you ? 'f^his was Uie
ground wTiy this bill was reiul a second time.
For consider, otherwise a gentleman may, in
any other case as well as this, desire leave to
bring in a bill for attainting such a one ; and
tell you, you shall have a good reason given to
you foi' it atlerwards; and though the reasons
suggested in the bill are not sufficient, you may
have reasons out of the bill that are sufficient.
What a precedent will this be! Why, sir,
length of time gives a sanction to those prece-
dents which the age that makes them think not
of; and they become good examples to poste-
rity, that were even very heinous precedents to
the present times. Now if this shall stand, as
now in the bill, I would ask, W'hat man in
England is secure, when a parliament shall
arise that hath a mind to attaint him ? Why
then, sir, if you do amend the bill, consider the
method of your proceedings ; you do your-
selves, in efiect, tied are, that for bringing in of
the bill, for twice reading of the bill, you had
no ground at all; forotluirwisc you had good
grounds recited in the bill, and that must be a
sufficient ground to attaint him ; and if you de-
clare it no sufiicibnt ground to attaint him, you
declare you have bnnight in a hill, and rcud it j and therefore 1 hope you will confine
twice, without any ground. Whether you will : sel to proofs of the matter contained in
allow liberty to offer at your bar any sugges- ' 31r. /. Hone, Sir, 1 think, if you
tions otherwise than in the bill, that I luwA
submit to you; and for giving time, sincr that
is a question of a very extr.'ionlinary ualiire:
but have humbly ofiered my thoughts, whether
any thing shall be uHcred otherwise than is
suggested in the preamble ot the bill ? 1 hope
you will not, fur the precedf*nt sake you aie
jiow making ; which if you do, I am afraid
bills of attainder may become now as fre<|uent
as Bills of Attainder were in Rd. 2*s time ;
which I hope never shall Ik*.
Lord A'orm/*. Mr. Speaker, 1 will not
pretend to telT you, that you are bound by
other rales than rules of justice; but what is
justice in Wcsimlnster-Iiall is so hero, and
every where. Ami last year you thought it
justice, that no man slioiild lie broutfht to a
trial, but he should know what were the par-
ticular facts that were alU-dgetl against him.
l^rd CutU. I think it, in stuue n\easure, a
misfortune, tliat a matter of this nature, as is
your present debate, halh held you so long ;
and conceive it a thing to l»c wished, that every
Kentleman that speaks upon this occasion,
»ould apply himself more closely to reality,
go on upon the matter suggested iu
they are allegations which must b
hi*fore the hill is committed ; and liia
hinder sir J. F. from lu-ing examim
treason likewise. Therefore all that is
in this bill, I suppose, being thought i
to he proved, 1 desire he may be t
and the counsel may go on to provi
allf.>dged in the hijl,* aiid at\erwards
may answer them.
Lord Co'iitifixhj/, If the qui'stion v
' tUer you shouM grant this gentlemai
I no to make his Defence, I shimld
'■ iion!)!( d you. But the question now
he, W hether the Bill does depend
'< hnrt* suifgcslions of the bill, or upon
of sir J. F. ? And therefore if gent
I iusiht upon it, ihat he should have k»i
I to defend himself, as to his l>eing ini
. guilty, 1 shall not oppose it ; but if ;
fit to |)ut it off, as if the fate of tb
depend u|Min the suggestions of it,^
agi ee t(» that matter ; therefore 1 desi
tunc may be given hini to auswer tl
uf his guilt.
upon a Bill ()f Attainder.
irley. I 6q4] ail g^oUemen that speak |
lijcct, to say this matter is of a ?ery
aary nature, aod you have entered ,
r Tery eXtranrdiDary inethoJs : but I >
f observe, that tbia oeiiig (he first bill |
od that hath been bn)U||^ht into the
efore any proof', gentlemen must be j
f tliey are cautious what steps they do
d when the wisdom of the House* has
fit to take (}uite different methods, as
fliminaries, it is not to he wmi<!ered if |
t with difficulties iq their proceedings. |
sntlenien press for more tinie to be !
sir John Fenwick to be prepared;
rs uria^, that yon sliouUI declare, whe-
counael should be heard to any thing
is suggested in the bill. And I think
t give a determination to the la^it ques-
ugh the whole House a^eed to give
jrer time : for if you give him longer
will after come t<> the same debate,
they shall be heard to any thing but
luggested in the bill? If you should
to add any thing, then it will be rca-
hat he alsi» should be heard to that ;
e case of the deatli of a man, let him |
lever so much, yet he does not deserve 1
injustly by your hands. — It st.*ems a \
lin propositjun, that when a man is '
he should not answer to u hat he is ■
ged with ; and to charge it with in- ,
and implications is so uncertain, '
[ always have seen it denied in this |
0 I hoi»e I shall not see so great an as- ;
five any countenance to it. They did !
, tliey were prepareil to speak to the !
leoess of the bill ; but tliis matter not
ggesteil ic the bill, they are notpre-
speak to it.
10. Liitlctoa. 1 see now where your
bave led you : I thought the regular
»f our debates had been the point npon
le counsel withdrew ; and that was for
Por what ? Why to prepare themselves
>r any evidence that might l»e given
hem ; because they perceived you did
he counsel for the bill should ptoduce
dence. But they made au objection :
y, we did not understand your order
it we should cume prepared to op|)Osc '
iinooy viva voce to be given atsainst us,
iirepared to speak to the reasonable-
tue bill. Now, gentlemen, after five or
a debate*!, have been willing to accom-
tbe matter (that nolwdy might think
one jiresse«l a matter unreasonable),
y miglit have time : but some gcntle-
1 not be satisiied with granting what
isel desired, but they desire more. And
that ? \S hy, that is to know the opi-
tbe house, whether you will admit any
g to be proved thiit is not suggested in
r Aod I do uke this to be within the
ioDS of the bill, as fully as ean be ex-
For what does the bill say ? The bill
r be was indicted of high treason, and
: of the witnesses Is gone : and gentle-
A. D. 1696. [570
men come to the conclusion, and skip over the
immediate part of the bill ; for the bill does
say, that he did incite and consult, fcc. And
the objection of the counsel was not against
tlie evidence ; but they said, they wt re not
prepared at that time to answer it, and there
they leave it ; and thereupon the House go on
upon the debates. What ^an wc expect that
they intended ? They might think, either we
shall gain our point, and the bouse will give
lis time ; or otherwise, if they go on and heur
this evidence, then we say we wanted time.
And that will be only evidence ei parte, and
not carry so much weight with it, though we
have nothing to say to it ; or they might think
it may have this effect, that the house will not
go on, and hear any evidence at all : in either
of these cases, ^^e have the fairest advantage
that we can have, on tlie second reading of
the bill, in defence of our client ; all tbay
desiretl was, that they might have time ; and
I ho|)e that which satisfied them that are most
concemcil, may saii^^fy any gentleman of the
house.
Mr. J. Hone. The question is not, what
they asked, but what is reasonable for us to
grant ? 1 was in the beginning against any
delay, and I think there is no occasion of
delay : all 1 desire is, sir, that the king's coun-
sel may be desired to prove the suggestions of
tUe bin € J tola.
Mr. SoiicUor General, Most that have spoke
of this matter have said, that the matter is
very generally laid in this hill, and the coun-
sel could not very well kno\% to what to apply
them^hes: that it speaks of high treason in
general, an*' ofaidingthe king's eueniiev, which
IS very general : it recites that indeed ; hut the
indictment is legal, according to the late act of
parliament. It is not only snid, tliat he de-
signed the death of the king, but for that pur-
pose he and others met together, and agrceil to
send Charnock to France, to ^o to king James,
to induce the French king witTi an aimed |«ower
to invade England. Now bow can any thing
be more particularly charged ? And the in-
dictment is so charged in your bill. I think
theretbi-e the counsel could not be ignoi:int to
what they ou>^ht to apply themselves ; but by
what i perceive, gentlemen are very well con-
tented to give- him further time. 1 remember,
when the bill was first brought in, there was a
long debate for a second reading ; and S'>ino
gentlemen thought it hard to be trie<l by so
great an assembly, and said, they had rather
be tried by a fewer number : but I shall ob-
serve, that you have sent the copy of the bill
to air J. F. beforehand, and you sent him notice
that he should provide himself. But 1 remem-
ber a much better man than sir J. F. who had
the misfortune to be under an accusation of
high treason, had his indictment one hour, and
was trietl the next : and though he pleaded to
have his trial put off till the aflernoon, he
could not privail with the court of justice to do
it : tir John Fenwick hath had a copy of his
Col. Wharton. You bare thnse or Ibnr qaeh
tiona upoD your paper : and now, after to kng
a debate as we ba?e had, I hope geotleiDei
will not think fit to start new ones ; and f
hope you will lake care that gifutlemen ibil
not rise up three or four times to speak to tbii
matter. Yon have another rule of the botue^
that when a question is moved, and seooodal
thoufifh another question is mored aftenrairdi,
yet that must be the first question that is lobe
put ; and I hope you will keep us to thw
rules. — I wonder at some objections : it is loM
you, that this is such a proceeding tbst nerer
any thing of this kind was before ; ami thai joh
are here going to read a bill of attaiiMlpr,
before yon have hail any manner of evirfesce
upon which yon shonhl ground thebrioq^ingia
or tliis bill*. Gentlemen must rememl^, or
should ha%c informed tbemselve:* ; for it is
very certain that you had very good gmundslf
vote this hill to be brought in* : t see rhe g«n*
tleman that brought in his own aocusatiuo;
you had his own discovery reai^, and Mr. At-
torney did inform you what was against bin,
and how he stood indicted. And another \j;»-
tleman by me, told you, he was with him, isd
there was a treaty for his pardtm ; ibis «m
evidence lor reasonable men to go upon. And
to tell yon that tliese preceilents will endsngit
your liberty ! Under favour, this is the ground
of oil your liberty. It is by this power of pw-
ceedinfv, when vuu have not that evidence that
Westminster- Ff all requires, by which you will
keep great men in awe. — Now, give me lesw
think there is nothing before you, but that you ] to speak to the question that 1 think yon ought
on.
opened the proceedings, after he had opened
what had been before the grand jury, seemed
to make it a charge, as if sir J. F. had been
condoBoending to the withdrawing of Goodman.
Now that seemed as if they designed to
make that apart of the evidence.
Sir Rd. Temple. The counsel did not insist
vpon it, only to answer the suggestions of the
Bdl : every body knows, they objected to the
others going on with the evidence they opened,
because it was not in the bill ; snd the king's
counsel could not so much as ulledge, that it
was in the bill : and they would have gone on
to have proved the indictment. There is ano-
ther thing ; it is told you, as if the preamble
bad suggested something of this kind, tliat there
was a meeting. Now the gentleman that spake
last but one, has cleared it, that it only recites,
he was indicted for these things ; and this
brings nothing in issue, whctlier he be guilty or
no. Now I think the present question, and
only question before you, is upon the sugges-
tions of the bill ; for you can bring nothing in
issnehere, but what is in the bill ; and nobody
can insist, by the rules of reason or justice,
that any man should be heanl to any matter of
fact hut what is in the bill. And therefore J
thisqupstioo may be put, whether tbe borne
will bear, at the bar of the bouae, tbe evidenee
there is to prove sur J. F. jguilty of tbe bigh-
treason whereof he was indicted r
571] S WILLIAM III. Proeeedingt against Sir JtAnFemoidt, [57S
bill for two or three days, but he ntver had
BUT copy tin be bad pleaded.
Mr. Waller, I stand up only for my infor-
mation ; that which 1 would know is, whether
the counsel did not ask you the question, whe-
ther tbey should be bound to answer any thing
that is not in the hilt? If they asked that, then
tbe gentleman that spoke nere is answered ;
end tbe gentlemen of the bouse do not in-
upon what sir J. F.*8 counsel did not insist
And I do think the king's seijeant, who
should give direction to hear them to what is
BUgz;este<l in the bill.
Mr. Mcthu'cn. Sir, I speak to the method
of your debates : your debates arise upon an
objection that was made by sir J. F.'s counsel, j
against the counsel for the bill going on v\ith
their evidence to prove sir J. F. guilty of high
treason. I must beg leave td dif^r, as to what
the counsel did say, from some of the geutle-
men that spake last : the force of their objec-
tion was, that they should not now go on, for
they were not prepared to answer them ; and
the reason they gave was, that they had not
formal notice ; and the other afterwards spake
to put: it i.s told you by the counsel for tbe
prisoner, tiiat they are not apprised what the
sense of the house was, and upon that accooot
they desired further time : I confess, wlieo yoo
alloTved counsel, 1 was of opinion it wis i
favour ; and now since they have made tbif
objection, though I do not believe you sre
obliged to allow them further time, yet 1 had
rather err on that than the other side; ifld
therefore I think the fairest thing is to allov
them some further time.
Mr. Secretary Trumhal. Mr. Speaker, I
have attended all this da}r to your debstef,
which are now in my opinion of a very extra-
to the shortness of the time : your debates for '. ordinary nature ; for a great deal of your tiiae
a long time went pursuant to this, whether you
should allow them further time or not ? But
the length of your debates hath raised a new
matter : though 1 think that doubt, though it
was not made by the counsel, may be very
{Toperly made hy any worthy member that
atn that doubt, whether, as the bill is broii;rht
in, tbe king's counsel might at any time s|M'..k
to that point, though sir J. F. be acquainte i
with it ? And 1 must always agree, that doubt
OMgbt to be resolved, before you come to re-
solve, whether farther tune shall be allowed
Um or not $ and therefore I propose it, that
hath been spent upon motion of the counsel for
the prisoner at the bar, whether you sboald
allow them further time or no; and now, kj
what 1 recollect from the sense of several po-
tiemen, the house seems willing to allow taflB
further time ; even that is opp<»ed at this tiiiM
of day. — Sir, the king's counsel have openej
the matter of fact, u|Min which they did uii0i||
to produce their evidence ; and when they bw
ofiened the several heads, the whole objediM
that I heard made by tlie other side, wa8,Tbiy
did not think the king's oouaaelconld bavepra-
ceeded to examine witneases apon those Mii
l^n a BiU of Aitaindtr^
Ihti tli«7 were not prepared to brtni^ wit-
hes on the side of the prisoner, nnd there-
iV^ prayed fur f\irther lime : truly, wlieiher
IIMlI ue rvtJiooahle or no^ or whether iipun one
Dur, the house thinh fix to grant atiother ; I
»)4it tell what mi^hi api^eAft if it bud come
stioo ; sioce the life of a man is ron-
d, w«ou§rht U) be lender of it» and I shall
as ieii<ler as anolher; therefore I am of
vpinioo^ fhttt o n?a^c»imb!e time should tic
allowed. To do what? VVhy, upon ibeevi-
llraee the kinfif*f< roniiiiiel nhoubl prodoce, they
jkp\\ hri«|f their MfttnesHea on the other side to
Hbwer thtin. Whether the kmi;\ rouns^el wi(!
^^ittK'e eviilence thai is torei^^ to th<- hill^ that
w{\\ he ill jiidtrmenl of the house ; but it was a
IfDfici tnotimi made Mow, which I dose i^itha)^
that u short time muy he alloneil ttieui to
niAtte their defenee* and bring their vi itJie&ses.
'prakfr. Cfenth-tnen, you h»ve bad a
ite: 1 do not remenilHfr any tortnnl
I that WHS proposed at first, tiM siirh
' at I read to ymi whiit I tbmig^ht wii«i the
ition upon Ihe detnite ; when I read you the
liion for Inrlher tifoe, there were several
Hihers stiMid ni^ and said, that vius not the
•lion ; nod took exceptions to it, ami pro-
>*i thai the counsel ghoidd l>e coo fined to
lltire evidence only to the matters sugg'efited
lie hdl ; so that now f have tvio ipiestiuns
t tny paper, which I will read to you, and
^ wh.'nh you will. One question ii^ ** Tnat
be contined to make their proof to what
iijfjjrpsK-d jn the bill" The second cjuestion
' That 9;\rL l*\ lie allowed further time,"&c.
|r C Mutgravr. A i^cotleman said, the
^ml q net t ion u|>oi) your paper was btit lately
hut I remember, a little after the
I w^H u'iiliilrawD, it was moved, VVhether
i would '(five them further lime? And I pre-
\\y ut'ii^, in the debate, did take the free-
to ask, Uhetlier it was intended they
bM answer to any things but w hat was con-
1 in the Bill ? And> I remember, there
( a ^enth'man of the long robe said, That
' wa» nothinjr offered by thv king's connsel,
I u hat wnti within the sngigpestiona of tl»e bill.
^Vman Kaid, When they may buve
II',.; 'Iiry did nut seem so food trf it i
,^;ii 10 m^j provideil he lie prepared
Inswer. But I eann^it but observe, that
i.Ciin<^hision i>f that hooourable jierson was,
ftftl at iaat you must come to iletermine the
^WfHtion. ^ ou are likewise told by un honour-
able pei'&im nearer the bar, why ilo ynu dispute
ihis iM>w yoH hflvt ordered the king*ii crmnsel
10 pfo«l«ir Mdence; and so yon have
conelutu ^en? But for tny aelt, 1 must
rnnHvt^, I ii;<i never think the evidence waa to
be llfftrd ^3tlrervii»e than as to the ■ug'j^efltiona
*^ ' hill And if tliut point he to be deter-
, why will not you dcfermlDe it now,
rlhinto have another debate upon it f
^'||p«C«V€ii* That %vhicli U presNeil by
h ffCoticBi^n, ii bejr|iiM|^ of the qiiestion^
Rt have we Irere brought »jr J. F» fur ? Was
jfy otirsielvrKj wbetlicr sif J . F. waa
A. D. 1696.
[574
f^fuilty of high-treasou? Now that is supposed,
by some ^eutletoen, not to he within the bill :
if it be not within the bill, 1 desire you would
throw^ out the bill. But the thiag' is« we naust
not examine to tJiO(se thing!! tl^t will make
sir J . F. gnihy . 8ir, this Is a very nice things
atul f ery curiously woven. The great thing,
say some gentlemen, we must take care of, is
the blood of a man: does any one say he is
i n nocent ? N o : but we m ust have some way or
another that bt' mttat not be brought to bit
trial. I desire, ns Englishraen, you wilt not
only lake care of the iife of one man, hut of
the life of the king ; of the lives of our wives
and children, and mil our families. What will
they say without doors f You are afraid to
medditi with sir J* F. ; and therefore you will
shiie it awuy upon another point y that his
bfling ipiiky of high treason is not within the
bill. I am not for taking the advantage of
time ; 1 desire, as it was moved before, that
yon will give him tifiH', and try whether he be
guilty of this treason or no ; or otberwiae ds
nothing in it at all.
[Then the Order was made for Candles to
be brought in.]
Sir T. Littletm, Now you htre candles
hruught in, it will be fit for you to return to ths
{|ue6tion : for my part, I am willing to put both :
but 1 think the la. (»t question that yuii have upon
the paper, properly speaking, is to be put first ;
and that is, TEiat the hou«ie will proc^ to ex*
atnioe wi to esses to the treason in the hill for
which he stands indicted.
Mr. J. HoTPf, J think the question ought le
be, that his counsel be directed to hruig wit*
neicsei^ to the allegations in this bill.
Sir 'I\ Littleion. I (iropose it to you thus %
tliat the house will proceed to examine wit-
nesses at the bar, to tlie treasons mentioned in
Ihe bill for which he was indicted.
Mr. /. Howe, I think that geotteman might
very well haveinoveil the qnevtion without thai
limitation ; for that is as rnuoli as to say, that
wLlnesstis shall he examined to none of the
treasons in the bill, except tho«e for which be
hath been indicted ; anil that h a limitation, I
hofief shall not Lie put to the enquiries of this
house, I hope you will put it, that they shall
bving evidence to the matters alledgtfd in tlie
bdi generally : thi?re are sevoral other aUega*
lions in the bill which i would liave him answer
to, a« tlie alienating the atfectioni of the king's
liuHjects from him, u hich I take to be high tresr
son,— Aitfw6<r». No, no.
Mr. X HoB^e. Why F If it be not high trea-
son, it hath nothing to do in that place. I be^
Iteve it is a rery high crime, and would joduoe
tne very much for the punishing of air Johft
Feiiwiek.
Mr. Morris. 8ir, 1 do not know how the
questions may be canted since candles are come
in ; hut 1 tlnnk it is for (he better. 1 think
there Hre two thim^ ha%e hein S)»oken to; one
is this bill : I tind those (,'eutlemen that were
sgeiast tbt bill on Friday, art IMOrs ifainst i|
575]
8 WILLIAM in. ProccediN^o agni.nt Sir John Fenxv/ck^ [570
now. I was tor the bill then, and am now for | sons luentioneii in llie biil, fur which nr John
a second readings of it : 1 think the bill is vt-r^ Fcowick i;* iiidicU-d.'*
Mr. Motiloi^u. I <Io not «ibserve, that io
readiu*; of it you say any tinner as to lh#! other
altei^jtious o\ the bill : L think yuu should wont
it, that tho counsel be allowed to produce et i-
dencc to tho uile^ra.ious in the bill, anO tbe
treasonfi whiHvof he stands indicted.
Air. Spcnker, Well then, the question ifi this
*' That the i*onns«'l that luanatjfi! the efidenoe
aifainstsiir Jolio Feuwick. be allowed to pro-
duce witnebses touch in^f tbe alle^auons in the
hill, and the treasons whereof be stands iu«
dieted.; »
Which question being put, it passed in dw
affirmative.
Mr. Speaker, Will you please to apfioittt s
time forit.^
Mr. J. Ihwe. That T would more yon it
this ; You were m extremely lute Ufure yoa
went upon tlii^ iuformaiioa, that you hud wi
time to •^o ttirou;^h any pari of it ; thcreture I
would move you, that you would appoint early
in the morniuj^ for sir John Fenwick to be here.
And thereupon it wasn ordered, '* That lor
John Fenwick should be remanded to Newgale,
and brouirht to the liouse on Monday at ten
o'clock."
Mr. Jumes Montague. Sir J. F. now inmlffd
he had not notice \ I humbly move, that be
may be brouuht in, and acquainted with whtt
you have ordered.
And accordingly sir John Fenwick wv
brought to tbe bar.
Mr. Speaker, The House have cousidovi
of what sir John Fenwick hath said atthehir,
by bis cuunseK and they are of opinion, ibai
witnesses oiit^ht to l»e examined there, to
t>rove the alkg^ations of the bill, and to profc
lim guilty of hipfli-ticason whereof be staiuU
iiidicte«l ; but in favour to yon, liecause your
counsel said you were not pre|Kire<i, tho Iloufr
is willing* to ;>;ivc you time till Mo-.idity next
to make your defence ; and they require }oa
to give in a list of your witnesses ; and it' jou
send to- me, you may have a warrant tor their
appearing at that time ; and they require yoB
to be here, so that they may pi-ooeetl njwn die
bill exactly at ten o'clock.
And sir John Fenwick being witlidrawn, tbe
House resolved, *' That tbe Bill for Altaioiing
sir John Fen\*ick of High -Treason, be read*
second lime on Monday."
N«»veniber 16. Mr. S^teukcr, CcnllemeOi I
would receive your directions in one thio?-
you have ordeied a member to produce a Uilrr*
plain, and know not what they wouhl have
mentioned in it more, unless they would have
bail the King's-head tavern, and what wine
they drank tliere. 1 think there is alt the rea-
son in the world to hear the witnesses to prove
him guilty of high -treason. As to tbe |K>int of
time, 1 should l^ very willing to allow it them,
if that question was put; and, 1 think, you have
lieen \ery favourable to him already in allow-,
iug him counsel.
Mr. Smith. I wouhl only observe, when the
bill was to be brought in, the objection was,
that you had not witnesses. And now the ques-
tion is, whether you can hear witnesses upon
tacts not particuUrly assigned in the bill ? 1 be-
lieve no man can say, bntthat in the indict-'
meat there are particular facts that ought to be
examined : I do ov%n, for my part, if sir John
Fenwick was a greater man than he is, it were
better be should escape, than you should spend
so much time about him. Sir, the indictment
is mentioned in the bill ; no man thinks that
Goodman's going away is reason enough for
bringing in such a bill against sir John Fenwick.
Mr. Speaker. Shall 1 read you the question ?
''That sir John Fenwick be allowed further
time to produce witnesses in his defence, against
tlie charge of high treason, and that he uame
liis witnesses?"
Which question wns put, and passtul in the
affirmative.
Mr. speaker. The other question is, " That
the couusel, \\ ho arc to nroduce their evidence
against sir John Fenwick, br all<»wed to prove
sir John Fenwick guilty of hit;h -treason."
Sir 2\ Liftieion, I do think one of tho rea-
sons why this hill was brought, was, becaii^^c
possibly, by the absence of this witness, lie
could not, htrictly S|)eaking, be proved guilty ;
though all mankind is satistied in his guilt. And
thcretbrc 1 question %\ hether it will amount to
a legal prtHii : and if you bail such a pnnif as
would convict him by the common proceeilings
4»f law, 1 should not have been for a bill of this
nature ; for it is against the honour and dignity
of this House to do the work that an inferior
court can do. Cut probably, by the alisence of
iliis witness, sii J . F. at a trial in the Old Bai-
ley, might escape ; though at the same time it
is highly probable, ihe witness that is wanting
to convict him, is by his means ironeoutof the
way. Therefore 1 speiik to the wording of the
question ; you say, * shall he allowed to prove.'
1 would willingly prevent what may be objected
when we come upon this debate: If you do use
the word * prove,' they may sav, this is not
proof j for still Gooduian is not here. If you and the counsel, in opening the evidecce, hiv^
please to say, thai wo will examine witnei^ses ' referre<l to it. Thai member desires to kaov
tci i\,c tieusoij, ii:id we will be jud'^es how fur I the pro|>er liino for him to do it; whc^htfi
It appeals to us. wiietih.'r he he guilty, or not ' while the couuscl arc managing theeiiilcnM
guiUy. { at the bar, orwhetbet he must stay tilldwy
Mr. S-'fuler. Will you let me (irojiose it to ; arc withdrawn f
you thus then :' " ThalthecounMrl. in produc- I Mr. Sluune. A.s to this matter, 1 do Pit
nijc their evidence n'^ainsi sir John Fenwick, be ' question but it is to be oifered as an efidmM*
•1 lowed to exaMiine witnesses touching the tiea- I and by the same reason that you gire biAlbl
i 3
npm a Bill of AUainder*
A. I). 1696.
[578
III tnviilie the witnesses lliat are f>ra-
afftinst him, tor the same reaflcni the
ou^ht (0 be re&d in his pm^enre, that
lie nwy cjcpfati* il» «r deny it - and five ine
kate to td( my thoughts of"*a not iter matt«»r : if
^tm% wwrtliv member is to offer evidence of
mhtA h^ lo** V .] . P.*s month, (though a
BHHihqr €< ::]ve9 hts evidence* in his
fla^, alter int- ro^nsel is wtthdratrn) 1 thmk
il it not only tit \» prodoee th^ Icfteif in his
pff<cn«e, hat that sir *f . F. shi>uld hair what
be Mjs, aotl deny it if ti« c«d.
Ilif» S^mker. U that joiir pleasiire, that
ikit letter b« f»fodoce«t hethre m J. F.^ am]
liMt the erideDce to he $jiveii ^ Mr. Vernon
shall be in the pi'esence of sir J. Fenwick ?
^^ The(|uestion beiD^accon! "^'"^ ■'■*t» itpas&ctl
^bthe afiinnative. Then t r was or-
^Bred to take his tnaeef tind ^ kVeKtmio-
^■er*hiilU and summoa the mombers. .\nd he*
^■g returned, the ortkr oi' the day tor proceed-
ings on the busiuess of sir John '^er)^>ick was
rend. ^Itbein^^a quarter before 11 o'clock.]
Tben air John Fcnwk'kf and the counsel and
soiicitors on hotti side^, were brought tn«
Mr. Spr^k'r, Sir ThoinAa P^wys, when
yoa were here last, you iosMitecl u|ion it, tliat
tile counsel aguinst sir John Fetiwiek ahoutd
im kept to the fYiXHit^ relating to the af lections
in the bill only ; or else that yon might have
farther time, hceause the witnesses were not
ready. The Hnuae have conaideretJ that mat-
ter, am) in favonr to sir John Fetii^ick, that he
^■illfht hare no snrprize, have gi feu him to this
^■ly ; but they do aWovr the counsel to give
^ndeiice not only as to the attention!? in the
^■11 » but to prove' sir John Fen wick {jfuilty of
^P^H-trea»on ', and therefore, Mr. JSerj. Gonhl,
Hint are at tilierty lo f^iy on with yonr evidence.
" 8erf. Of mid. May it please you, Mi\f!ij>eaker»
we are here to give in onr chartre, and the eri-
n<?e that we hare a^iinat sir John Fenwiok.
ad hy your order, that we are n«»w itHowed
Juce eviiience touching- the allegations of
* bill, and likewise of thetrea«ons Jor which
I stand.*! inilicled ; therefore I shall beg leave
ft) first, how he stands charged by the in-
it.
indictment first charges him with com-
in^jf and designing to depose the kincf, and
to death. The second chtiTge is, for
the FVench kin^ to send an army (4*
Ki w.vu.lr* this kinc^dom, and to nmke
Itier nnian(Tst the subject*} of
111-' ihinJ \\invy is, for adhering
lurih part is,
with sereral
is to i»ity, ChajuiK'k, gir J, Freind,
dtf! rfin'ftlt, pmy^f^e, treat, and
'► scud anurn-
jdom, Dod to
nned men against
cd; and with these
leflnies, u'nirj men iiritisrij^" and invading thi;*
akNU. to join, for to nittke and carr^' on a
bn atid war in ttii9 t{tn;^n>« Atid fur-
VOL. MH.
tbek»
ther it charges, that he dtd consult, coitaent
and agree, to send €harnoek as a messenger
from sir John Freind, and others, into FranC^
to the late king Jam^, to propo«if» to him, to
procure the Fp Idinsand
armefl men tn i i. Then
likewise to " , me smlictint^nt charge*
him with horses, pistols, and other
warlike arin>. i nt» is the char*e of the in-
dictment; and these matters are h\ the hifii
for the biil does chartre him with r-^^'^^-'^-''-^;"
and imagining the death and destm. •
king, with ad her in* tn UU eoemifs,
ingandagreein. ral perso. I
times, to send ( o the late k i
in France, to invite and encourage i i
king to invade this kingdom with an^j p
and promises to jinn them, and a^si&t ihtfia
with men and arms.
Then the bill does take notice of other mat-
ters, that sir John Fei.wick bath protracted hitt
trial, by c' ; [inces to tlte king to make
a plain di y reason of which he did
.,, » ^r.,.^.. ..»,.i ..^,T' one of the wit*
J. May it pleasii'
; , ..,.,. ...,. ^.. i.^ ^. it stands before
this honourable llouset and the evidence we
shall chargt^ him witty, will beof thia nature : we
shall give yon an account, that the latter end
of MiiVi or beginning of June, ^r John Freind
and Charnock, and sevei-al other persona, met
at the Krag*s-Hend, and upon tliat meetinjf
they con'^nltcd how to invade this kingdom'|
and they cyndndcul in thi*, that they would
send Cnarnock into France; and he was 1#^
propose it to king James, that he should jyro*
cure 8,000 foot, and ' " ' V v- and d«igoooa|<
and upon their landi, re to join thent
with 2,000 horse, An^. i..,.. tliey had anolheir
meeting; for Cbarnnck, to be smeof tlie mat-
ter, woulil II "vi- ixMniber meeting -, and then hA
proposed 1 Whether tliey contiune^
in the i^atu in? And they all tliei* de-
clared, particularly sir John Fenwick, That
they did appmte oV it, and stock by it ; and
that Charnock should go for that purpoece td
France. Chani5ck, in pursuance and exe-
cution of this treason, does go to Franrel
and brings haolt a message, tlut the matter
had been eomiunnicated to the l*'rench kings
hot at that time he wiii not ready for iheinj
ami could not sjmrc hi*; soldiers, and hii
troops, T*lien it rested Ihr some time, till to**
ward'^ iK^i^Hnas, wfien '^^«- f'-'^.r*. Barclei^
canir md, and I ' with htti|
a det; I abuutsixr. I theirpro'
vince was to assassinate the king. But lier^
wa« jinoi her pari, and that uiis ihe invasion |
and in thut part was sir John Fenwrck con-
cerned, wliich we shall prodnre nnr evulcnee
to prove tipeo him ; but il does full out, that w(~
have but one wifnei« to thi^ tnatter that we ea
produce v ' ' " '
nit'nt was i
last sessions, \vi;Htii n-ij^vm-u m
each species of treason) we ha
tsKince withdrawn, ami that is b-i,, .;i>i ..^ ,x,
5?P
579] 8 WILLIAM IIL ProceetSngt againa Sir John Fenwid, [SB
bill, at in truth the fact is. Now, if sir Jobp
Feu wick had «ome on in the ordinary course
of |)roceedinffs to be tried, sir John Fenwidc
niifht have been tried upon this indictment, for
then Goodman had been there; but he pro-
crastinates his trial, he makes application to
tbe km^, and gives him assurances from time
to time of an ingenuous discovery ; but inste&d
of that, when Goodman now is withdrawn,
these assurances have terminated in this coun-
terfeit confession that hath been laid beibre the
.House, and is charged in the bill.
But, Sir, to supply this, we shall produce
the examination of Mr. Goodman ; we shall
prove to yon not oulj^ the evidence that hath
oeen given upon this indictment, upon which
he bath been arr^ignied, but also the evidence
which* hath been given upon the trial of Cook,
who was convicted upon that evidence. We
shall go by these further steps in the case, and
humbly offer it to the consideration of this
House, how far sir John Fenwick will be af-
fected with it : and that is this ; here hath been
Goodman, and captain Porter who still stands
his ground ; but they have tempted him with
.^00 guineas in hand, and 300 more was to be
.remitted to him upon bis first landing in France,
.with assurance likewise of king James's par-
don, and likewise 300/. a year ; 100/. a year
whereof was to he settled by sir John: Fenwick.
This proposition sprung from one Clancy : it
could not be ezpecteil that sir John Ftowick
should appear in his proper person, but he did
by his lady, who was with captain Porter^-and
gave him assurance of all that was proposed by
Clancy, that that should be performed, and a
great deal more.
We shall further give this account, That
.when sir John Fenwick was taken, there was a
letter handed to u third person ; and it appears
by that, that he thought himself at that time
not safe, unless they could corrupt the jury :
for, says ho, we must uow get two or three
staunch pcrsoti» that will starve tlie rest. These
%Xe\is we shall proceed uiion, and begin with
the indiclnient, and call our witnesses to it
Seij. Lovtl. Mr. Speaker, 1 shall not repeat
what hath hecii said ; because 1 know what
hath been materially said cannot pass the ob-
sen'ation of this I louse. The method we de-
sire leave to proceed in-, is the method you have
Iirescribed us ; and that is, first tf> prove the al-
egations of the bill. And that we shall make
appear to you by undoubted proofs, that • sir
Jouu Fenwick tfoes stand indicted lor these
treasons at the srssions at the Old Bailey, the
28th (if May, u|>on the oaths of Porter and
Goodman ; that we shall prove by records, and
that is not capable of any traverse or denial.
We shall also prove, bv matter of recoril," that
several who were concerned with sir Jolin Fen-
wick in this conspinicy have been triinl and at-
tainted , ami then v\e shall call a living witness
to pro\e sir John Fenwick guilty of treason in
the highest manner. Air. Tanuer, deliver iu
the inilieiuient of sir John Fenwick. [Which
was then read at the table.]
Serj. Lovel. The bill does chuye. That h
stands indicted upon the oaths or thew twi
captain Porter and Mr. Goodman : beaideB,
must beg leave to observe, thai by the act <
pariiament made last sessions, it b enactei
That DO person shall be indicted ouIcbb upo
the oaths of two witnesMs: had not these wii
nesses been sworn before the grand jury at tbi
time, this bill coukl not have been found ac
cording to that law, nor would lir John Fci
wick have pleaded : but be hath been anaignei
and pleaded ; so that we submit it to this Hoosi
that it does appear upon record, that this in
dictmeut was found upon the oaths of two wii
nesses. Besides that, two witnesses are sob
scribed to the bill. Now thfit other pcrsoni
have been indicted, and convicted upon tin
same evidence, we shall prove, and that like*
wise by records.
Serj. Gvuld. I thought when we cametd
give you an account of the absence of Good-
man, then to have given you an account of thii,
and other matters.
Mr. Speaker, You will agree upon ytor
method, gentlemen : who do you call in tbe
first place ?
Serj. Gould. Captain Porter, ^«r. OVbobs-
ing' present). I desire, BTr. Speaker, that ht
will ^ive an account of what ne knows cos-
cernm|r this matter, as aUo of what is cbaig«d
in the mdwtment.
Mr. Speaker. Captain Porter, the Hoor
requires yon to give tnem an account of vour
knowledge of any conspiracy, by sir John Fc»
wick, against the king and this govenimcDt;
and hkewise of your proceedings upon the in-
dictment against him for high -treason.
Capt. Pot ter. Abtmt the middle of .^lay wai
twelve months, there was two consultations,
one at the King*s-Ucad iu Leadenhall- street,
antl the other in Pall-mall ; these two cooBul-
tutions were for the considering of tbe beii
means to bring the late king James into £Dg-
land again : for it was said, that kinc^ William
being gone beyond sea, he had lett but few
forces, and therefore they thought they coukl
not have a fitter opportunity than that juoc-
ture ; upon which they pitched upon Cbsf'
nock to go into France, and make some pro-
posals to the late kin^ James, to borrow 10,00(
men of the French king, whereof there shouk
be 8,000 foot, 1,000 horse, and 1,000 dragooM
and it was proposed, when they came over t<
meet them with 2,000 horse.
Mr. Speaker, Where was tliis ?
Fitrtcr. Oiir tirst meeting was at the K.log|f'
head iu Leadenhall -street ; niter that, Mr
Charnock desired another meeting, and tbei
we met at Mouutjoy'sin 8t. James's, aodw
all stood to what we had before resolved, T^
he should go over to kin^if James, and mikl
this proposal ; and that if ho could get so ntsy
men of th(> French king, we would meet hm
with so many horse.
iMr. Sneaktr. Sir, you say the first DBMJf
was at the King's -head in Leadenhall-ltnit ]
who was then present ?
vpon a BiU of Atttdnder.
A- D. 1896.
[582
'T^ter> There wai my lord Aylt^bury,
by lorti Montgomery, sir John Fen wick, sir
John Freind, sir Willtam Parky ns, Chiimock,
Mr. Cook, and inyseJf ; we Hiaed tliere, and
er dinner Mr. Good [dan came m to us.
Mr, Speaktr. Did sir John Fcn«'ick hear
ris discourse? — Prtrfrr. Yes, Sir,
Mr. Speaker. Did sir John Feuwiclc coD-
Dt to it ?
Porter. He did absolutely consent to it.
rjoho Fr«tnd did propose it; sh^'s he, Do
not let us propose more than we can hring^.
^ Mr. Speaker, Then } on say you had a se-
^kpnd meelincr?
^F Porter, When we agree<1 upon this husiness
in Leaden hail- street, capt, Cbarnwk desired
another meeting', to know if we coutinned in
our resolution ; and the next fneetin||f was at
Mrs. Mountjoy's ; 1 think then my Ifird Mont-
gomery was not there, nor Mr. Goodman ; but
ftiere i«mi my lord Ayfesburv, sir John Fen-
wick, sir John Freind, sir \^illiaiij Parkyns,
Mr. Cbamock, and myself.
KMr* Speaker. How lon^ after ?
Porter. Abont eight or ten dayi, to the best
my remembrance.
Mr Spe4]kfr. W hat was snid at that meetings ?
Porter. The seconfl ineeting- was to a^ree to
the nme thing* : we desire^] Charoock to go
M soon fti nossibleto acqaaint king James, that
Ibe sooner ne came that year, the belter.
Mr. Sptakevr Did sir John Fen wick consent
^M Air^i at the siecond meetini^, to his g^ing'
^Kii» France to procure the forces ?
^mp0rier. Y>s, sir.
B'llr. Speaker. Willyou gire the house anac-
^laitt of any things else ymi know, relating to
tbis matter f^Forter, T^bat is all,
^■8erj. Gnu Id* VVas you ejEamined by the
^kod-jurv, when the Bill was presented against
HI John Fenwick? — Porter. Yes, sir.
8eij. Gould. What evidence did you 1^1^^ to
I ? — Porter, The very same I give now.
Mr, Spenker, Mr. Ser|. Gould, Tvbal have
^j to say further to him?
fierj. Lofvel, We would ask, whether Mr,
Cook was at the 6rst meeting: ?
Porter, Yes, sir, be was at both meetings.
Serj. LnttL Was Mr. Goodman at the prc-
riiig' id' the bill of indictmcut at the Old-
rfi.nw bim ifo ill to the jury > and he
lit was for the same thing*.
tljovef. We have some of the jnry here,
t we will call them to that.
erj. GouU, Now, if it please you, sir, we
will ask him to the matter concern ing; Clancy ^s
«g with htm.
stoker. Wilt you give the house au ac-
that matter?
o. Forcis, By your favour, I hope you
will |pve us leave to interpose in this matter :
for I am sure in I be case of lite, and in case
where there is a taw prepared lo be made sub-
i6i|aent to the fact^ tn condemo any man to
you will not only have good evidence,
L which is legal evidence. And I take it,
that in cases of thisnature,of asubsenuenllaw,
the evidence ought to be much stronger, und
much fairer than when a man is to he trietl by
a law in hein^f . If they should offer that which
was sntd in the great case of my bid of 8tiaf*|
fordr (which attainder there hath been an act of 1
parliament to reverse) by a gentleman that did I
then appear against my lord of Strafford ^ That I
where the house proceed in a legislative way,
there needs 00 evidence at all 1 but every 1
may follow the dictates of his own thought]
ancf conscience: (^It is in R us h worth *a Col h
tions, foU377.) '^ el, 1 hope, you will be
another opinion, and expect ?tronorer evidctic«,*l
tlmn if a man was to be tried by a Taw in beinfl
Now that which is offered now, cannot \te aT
!owe<l in any court of justice ; ihey were g^uj^
about to shew, that my lady Fenwick , the witlft |
of the gentleman at the bar, that she had used!
some means to take off Goodman^s evidencei! J
and they would make use of that agaiost her j
husband. Now, what any man's wile sayi* 1
cannot be made use of against him, as nothing* I
that she says or does can be made use of foe ^
him ; and by the same rule of justice, it cannot 1
be made use of against him : for otherwise the
rule would be unequal, That she might be ft
witness against him, but not a witness for him ;
that seenrs so unjust, that it will not be ad*
tuitted in any court whatsoever-
Sir Burth. Shower. By your votes the pri-
soner is allowed counsel, and the king's ser-'
jeant is to produce the evidence ugam^t the'
prisooer: thai phrase of evidence makes usbe-
Iieve« or at least to hope, that you will give us
leave to object to that which is not so ; and iu
this f appeal to the knowledge of the gentle*
man on the other side, who hath had a great
deal of experience of this kmd ; and I am sure,
in all his observations in the Old -Bailey, be
cannot say this was ever adniitted in cuse of
treason, nay not in felony, the actions or say-
ings of other persons ; and I must confess I
wonfler to hear him move it now.
When attempted on behalf of a close* pri«
bOner, that was not visited hy any hotly, it was
not admitted that the actions of a third pei^oa
at large, should be admitted against htm . There
the actions of u wife cannot be e^'idence for,
nor against her husband. It was never but in '
one case, aud that for sodomy, allowed, and
that was at\er two or three witnesses l>ej»ides
had l>een produced ; :ind by the o|jinions ever
^ince^ it hath been allowed not to he Idw : and
that for the economy, the danger might follow
in cases of matrimony and families. i\ow they
both do concern the acts of other persons, and
not sir John Fee wick. Besides i have one
objection more, and that is, There is no such
thing altedged in the hill ; and, with submis-
sion you have declared, that ihey nhould pro-
duce evidence as to the alligations in the bill,
and the treason!» m the indictment ; hut I can-
not find any order that tliey shoohl prorhice
evidence concerning tlie carrying away id" any
witness ; and it is not al hdged, that Goodman
m withdratvn by sir John Fen wick's privity.
§un ftWgJiiiM in-
Aj to PmU!T\ hiutg taiiiijer^ wkh^ tlirrc i« yo
colour ol' iug^'t^ntlort iti hiv bill ; fo that Uiii
neither t»eiu|^ in Uie bill, iiur bdm^ nn^PRKG at
Uw^ we mnul k' surfrnjenil tery itiu^b hy it^ if
you sli0ulij aitrnil il,
Mr. Speaker. Vim hi^^ar lliP oxce|Kliaii, Whit
dp VOd h^y 10 it ?
\ mry Gt^uid. I tLiiiL ivti»t tbetQfinlk'iiiiti
iiy, will rrfm^e a (ilam aiiivtw. vbey bave
nift{t«' jiu oiijtfcnuu viilUoul ftuiw«!riiig the »iih-
^1 mutter; it i» uu tillegaiiuii in tUo ImII«
Thftt G^mdfuan hath fvithilr»wii hiivit*«ll* Nuw
thif Uve ive tiiiakt* of thi^ is, In let lii in to gi^e
OH aoQoimloi wh«l UtMxInmn biih tswtinip
- iad to oititb u^ to rt ail bin rJ^iimitiwi Uiu r For,
•ijr we. bu liatii been UmiMrioi; t<^ f^Mll«^ Ibi*
OOlMprvt;!/, t4i taki! dtr tbe kiogV «iTiile&d«r.
For tHibuUj il&uhu vf the fiieemblu ii^d wi«bi4
«(iu«»titr«cj I md it ig ii« pltin, h^n^ batb beeti
two witii«i(M»i t4» firti^r ii : ftn4 «£ ^hm^ UmI
thii inilictiiK^iil t» lound uccqriling to ihe htc
*ci «f (itriiamcnt, n|MHt ih^ «rii1«ac^ wf iVn*r
lutl (iottilmiiii. Niiw, to kltovr tliM coi}i|»irm;y
4c ^1 r I V i »i(f u II ^ w tM>fi«^f to proiw t bo tamim i D|^
kl bitb Wij ti> tak«» oil Ibu kitig'H tfTiilvmst,
Ulti to by thai helor^: tU« uoii%iileiatioa ol' ibb
liouie ; jhi the uji^ w^ make of it, i^ onljr )t<v(.
Citciry t«k }i I m in if> ic^l j^ou wb»t Ct«oibDait
b MifWAt Mini in LfiHsfl limt |y« diall [uro-
4fic« to voii ui) iiiitii*t[arat, irbrr*', iijvnn kia
v^r^f on til, ikw\ iijjtiti thi* si^iDf^ rvicttnei- an hc
oifcx b«?rf, un^lb^r cil' the iriuior* hath hemt
wfuiii-tj^ ^tHttherttaioiva bmiihty offer it
■*vli , itiiiicriit^is, we Khali not Uii lul*
Ui^ ^ '> , > ii^c- lUm t4kin|imiii£ 1*
Hi'Tj, l^v^i. Bclbr« ive willtiivaw, J Jioi;
tiTo WQi-du »» to vikU h oh^t«tl ou the
Dlbirr Miiu, for liitit Iruro^ g^utiaman Afi^
imiU to nw; a,ui\ I uK^^t iL|»[»4ial to tb«
•miwIiHigv cif io]ri« iiii'^iiWii}!! tli^i fure biime^
ill I be law, auU i4^ til^ thtil cv^*n in criuunal
ou'M^ cooiiJi ttr« uoc Louiid up u* potitii^is e^i-
iliHicc, but that tbtr eviilrnc^ of eif«;uaii$taiicoti,
mnd Hunii^ f^enutui m oorrohoriitA tjuflm, b ftd^
lUJtlfd ; And it ii vhoM he «ri, tbul tiulhju^^
Uiit (i^itivfl^ rviiicuooibdiiy eouf ictt wa sh^uiil
hsLvv vQvy ievf c^uvitatMUi «t the Old -Bailey ;
«ito c'lpppiu^mid ^itafaig^, wU^wouj^ ii ma-
vmni] by p(i»iuvu uviileuf^^^ adti itiri.>et i>roof,
Ibrty ate convicieil and atbtinted by circum^
Btnutes^ n» maU^riAh loutul nbout tbem, and
putiiijj^ otr couuiei'reit-ioon«y« ^if^ 1 mu^l
submit to you, whutber, us ilio nature of this
case 1^ dm bouso will not think lit m Ueukr iill
etidctice iliui uiay ooucera kbit ru%itert whe-
tbor L'^rt un or drdumst^otiaj ; and the niAiloiu
i»f tbiH ho USA Will (Itfiju^nii^U ufLerwiriU^ whit I
tb«y tbink is out u rial ^ and «but h tioth We
(lt» t«tkc tim v> be p^vri ot the same i^onjiptfac^y
^e do Uiarift^ ibeprisoturat ibu bar uiih, ibat
b^ uiiglK uot eonie lo condign punii^UnirriC ;
nnd tbeit'foii; we (iraVi that ki ili^^ [HOCivdinyi^
of other |duce>i bk wliat they w)ll,Lhtkt you ^vill
hear the wbole oiatter lu tbiaoa^t wbntlitir
tliet: Vidro 04! tie |>Oi»itiie or dtcuuistijotjml.
Sir Tho, Pijwii, I lb ink tbry tiuslibk^ ui
wbuu they giv« up tuifii i^ «n«}ier* Wo
r
doubt not but iKurt^ t^ po%%xite evideaee and
{nrconuiaobah but wo yippoie tbii lo be
tm i:vidmo<9 at alL Mr/H«por«lcf Idb tii
lru«f^ Tiiiil L-ircmnJxtantiiil «fiteice ii frv-
qiicntly umltf u«# ol ; but mm mj, tb«l pbat-
i^rer my l;uly I'l^iwick batU aaiil or 4onMt »
nrtt to b^ udii^tlkHl as i-^'ideuoe o|^iio«t Ib^ ^•
aoiiffr itt ili» bar i becaose wit at uhm batli mui
by wiv of enilenrour to dmw (^IF f»r>CKli3iaii, t*
IK? evii]«joc4? at all to bo offered ag4in«t bcrr hw*
batiil, f nil 14 uot ao mticb a« cireuaiiAimtiil
andcnce.
8ij- BartL $hmtr, W« do agree, if thitnll
bad tiecn brought in against my liyly Ft^nirtdK
or i^iinfet Cbuiey I tbi» h^d lW«ii p^ot^r t%i-
flttucc ; and thry did, and m^y di^ervc pu-
ui&bnH^ut lor it tunmidYes : but tbi^ \% uo t«i-
dci^i ^JHuMlMT JobM Fou^it-k, tbat in bere.
i^f^j. I^^/. Wc tbi^k it iA iiroM-.t'ly befor*
tiK* llouic, cf en tnr tbe order of tbo tioitit
it%«rif : t^'oriy thf lint nlaei*, we are la
lo the fii4^t««|€nqt«io^ lU the bill. Om i
hi, Tbut air J. F. had b««ii trit^d b«ffir« n^w
hut i»T rtrasoui wcnuoned lu Ibo bill | jui4 thai
b« ibdfyod hit trial tdl nmh i\me «a Qoodmaii
wat wiibdrawn ; tbtaiiforu « bai Iks b^bro m
by ibtt djf«otioii ol Ibt? U au8iL% h, tb»t tiii nueb
titno aa G««ftiitAa va^ «iitbdtrawn, uf 4. P»
did prt^tcod to ifo on tu utikke » dboot«ry^ mut
JtltvDviifdi i^ut It olT wiib what is cbargid i^
the biil : Uut My i^iiy, Wbai is dooi? by m^
lody Frnwiokni 1» no evidrivc^ agaifiirt bte«
W'lieu ail tbe circuuistanc^a are laid bdM
the HoitrM^, what d«4ibo^ii lii«rc was witb eajt*
tain t^orti*r, imd ^vbat was ^aid at tlia4 Uniie^
^iui tba consL^uc^co preit^nUy after Goudmaa's
going' aj^ra^'^ I \miK it i» an uiucb crideuot aa
the cAst will ht;«r.
Siir It, Ihtifiit:* ^r, i desLratbcy mayAvitbdrair.
Accord in i^ly they witbdirw.
Sir E. Tempk. 1 tkiuk it tnoch coooerDs tlie
honour of ibe boupf'f whvsk a pf i^on^t it at tba
bar, ibiU ba tlionld be allowed tbo rigbi of
an Etigli^bman; whatyuivdo hare, may be a
preeed^nt in af Wr iti^m * Von are l<^ld what is
offtred m ei idenca htro ii adujiiled ia oo coort^
and llie un^vi^r that ui made to ii^ i;^ of no foitaf
at all : they tail yon Ihtre is no albgalioaa in
your biil^ thai sir John Faawick bad any liaadt
lu his witbdrawiiiff^ nor nothiitfi^ in tbe iiHlict'*
uuntof it, and lof that reaMin the evidence
«eeiui impvopvr ; and if It was, tbia would be
no evj dance at ail ; tor tbe oatbs of otbar per-
ikoni is no evidenea against tbe prisoueri t0
iu4ke blin guilty of atiy thing.
Lord CuHt* I think il is a^re^l nlrcadyf
Thiit tba couu«d lc»r tlie tifiiooer shoiild UfjA
meddl» «vit1i ilie Mitbority ^ud juriMlictiou ot'
tbii Hooaa : For it we are lo he tic^l ii|» to &tl.
tbo Cbrma and nicttiim observed iu mitmmr
courti^t tlu^n to what end in iba priaoiiier brought
have'f I tbinkeitdeuce ought to be admit^y
thai, may olt^ar e^ery inan'fi eon^ci^uce, thalr
tbisbiil a^aioEit sir John Fen wick ought to pai&
Mt. J. lLtw&, A ^enlJ4;uian said, We are n(4
ti«d lo Ibe forwt t»f ialerkjc courts i but tbanfb
Mftj
upon a BUI nf Atiaindtr^
■ke •/« aot tted b the fornis of inferior courts,
fi^ are tied U> that which was the g'rtHiiid af
VMOi, eiMi that if, rtgbt reavon and irui; »en«e :
tbe^r httf e aUedged thai he wai iodiet^id ; no-
bod^ diMibly il That Goodman is witbilraviii,
mAdy doohts it. But whui is that to m
^olw riowiok f It miizht he with a ijesi^n tor
good or evil to sir Juhn Fen wick. My if»rd
}«if«ri«ft stttdi »t my hird Di*buicro'« iriU, (lu
I 801 isfoniMd) that one wimc^, with i^ood
cirauaslancett^ was enough toc^invict a nmn of
Ikig^h* treason. And 1 am told, it vwim iM him
llien, that if they et or met turn in th« iioute of
Lnnds, be shoufj answer it witli his UemL I
doire ymk wotltd aak uijitain Porter, when he
eooiee'in, whether this W3« disoouraed betbre
dinner, at dinner^ or aiter ilinner ? And whe-
liicr be knows that Goodman hemrd this or no i*
C4«i. of the K^kgq, There icems a |>arti>
«Niliir abyneii to know the truth of thi« matter^
I mean in the cotioscf the other day : the gen*
tkin«a savb, That Goodman mi^'ht hi; with-
drmwn to fl^o prejudice of sir J. P. as well ai
for bis good : 1 dc siri; yoti will not hi the go-
ventoHsui He »o stigmatised. Yon have pven
to tlte cotinael to examine to anything
ly be added to the Bill ; for upon a
iliiient, f can move you to put any thing
* 1 be though t reasonable.
Tk0, Vtfkt. itmay hea reaatmabletbiiig
etM|uire why Goodman is withdrawn? But
^ quettion ii^ Whether this be a proper time ?
is not tied to the common forms,
sre tied to the eommoD tvlW^ uf equity :
question is, Whether the IKjase wiU
it any person to sutfer by the acts of
her ?
Set G^n, (Sir John Hawles.) It is disore*
■Mrv, whether you wiU dcftermine tliM ibi^
MociMM now, or aller you have lieimi it. I
i«U at wbote trial it has but I won^t
pMt lb# lefTility id tbe thio^ ; it is one
wbflo n man is to bo tried by a jury« and
thing wh^a he io to be tried before
A jufy amy be so awayed and pos.
by it^ that it may not be fit Utr them to
hear it : but look into the court of Chaucvry ;
ifld there depositions^ if one side say tliey are
^videiieo, and the other side say they are not,
iBSCfftry day admitted ; and the ruic is, that
llif •ooiMr diopalcbed by bvarinif of it^ than
M. Yott d^ not sil here as a mry, but as
jid^is, ami wiU ctmaider hosr fk* Am actions of
* mA dull ooQcent ber hmfamd ; you will
An tkm iwuiofier right, and youraetves right^ if
jMiwiil bear ibeot,
Uk Fr, Wnmneton, The quealMm is. Who-
tbflr lb* kiiH^'t coomioi ■ ■ , ■ .
Big-^Mpmker. Lat me set you right; tb^
ifO 1141 bero aa kiut^s counsel.'
Sir F " Very well; but in this House
^•f a nd jury too . T he e* idencc
14 ^,«^.,^«, js to iniluce you lo bolieve I hot
be ii ffiiiliy ; and tli« geotlemin that afiuko
lywyt aot illow it to be a legal eviilettce.
Vim 1km qweatm ii, Wbelber you^ beinir
yoiaiir
ib«lk
A. D. leoe* [S86
be afraid to be induced to beliere a faet, by th^ ,
which is not legal evidenoe f ^uppotemy Mj^l
Fen wick had had the design, and had told bcirl
husband trhalshe inieAdedtodo, and heshont^l
have said, he &cori^d it ; this iai |«oasibie, if i
go to auppoising ; and that be might anpre*
bend it would do him a mischiei*. Now it i
be to no purpose to hear tlii« evidence^ UQ
it be to satisfy the House, in order to
the prisoner. No, but say they. Let us beafg^
and we will juda^ HlWrwai-ds ? Why so?
Citunot sHect the prisoner : and if an v [
here lifter have a mind to have luy lady FilS«
wick punished, tbey may examine it.
Mr. HUvim* The gmtleman that spake I
hath made one suppoeal ; let me make ;iuothen I
He supposes, thai it may appear by the ei m ]
deuce, upr^i iheexamioailon of witnesses, Ihi
what my lady Fen wick or Cbucy dtti,
contrary to the direction of sir Julm F«nwitkl
if the evidenc ' hapjien to be so, it iswitbuigll
But we may supposeagaia, 8t}ppoi«it bnppi
that It appears by the ev pile nee, tliat it was
Ibe bfloetitof air lohn Ffnwick to the
degrve, to gpt away oiie of the witiieoaes;
^ cui bono/ is the strongest nrf^sumption to i
I do allow, in Westminster- Hall, that a «oma
ahoukl not be a wilneas for or against her hu
band; but if she be directed by ber buabandtl
^ Qui facit per ahum, tadt per se \^ you
not alledisro all the evidence in tbe imiclrae
tlukt runs in general ; if tbe evidrnoe dtfem i
to time and place, ye loay iind biin guUty i
the iudtctment.
Lord Norrif€i, Because 1 weuld not wiH
go upon suppcMitiofis, I desire tl>e derk
read tbe question that you bare passed
Ust day* to esmminipi^ evideoee. [ W bieb i
accordingly read.] Now 1 desire to kn
whether thia bo Ireoaott within the indie
or any of tbe aU^r^tioiis of tbe hilt : other
I think yoia bare tied yonmlycs up by tb
rule,
Mr. Pei/km, I did eipe«t tbe ^eatk
that B()akc lat^y would have ckrared the ntatli
He ^ve you a disuiietioo between the fro*'
coeduq^of Westminjiter *Hall ond tbe Coort^f
Chancery. I afti ii^nonuit of both. I doiiiv
to kuow, Whollier we are tii go here by lb*
proceedings of W esuniartcr- Hall, or the Coiirtj
of Chancery. If wo are mot tied by
rules, we may let ouraelves into any ev
that will induce us to believe him giuHy or mil?
guilty : if we aee tied lo tlioae rulea tlsl»9
ohaerved in all onono ol juMtMW, where triabi of
Ireanon are had, thifrOMi beef no validity : ao
I dooire to knew, wbctber we are to go accord-
ini^ to tbe prMeediageoi ifcoae coortsi, or whe-
ther we may proceed ■■ tbe Court olr Cli
oery ?
Sir Tka, Latkimi, Tbe I
that spake last, desirte to ]
are bound hy tiMf rtite m WeetinMslef-IMf, ]
their proeeeiiittg, or ucn ? I bebeve it weuM^
have been lo ««ry httle.pui|ioee to httvis theugtrt?
nf this hill, if those UWWH JUtl bew tJtiWtetwl
bim. Ibebeve,!
587]
8 WILLIAM in. Prcceediugs against Sir John Feimek^
firoceedings of WestmiiiBter-IIall, and there-
Ibre that yon could not have proceRded on this
bill, ^ou would have taken notice of thero, and
reprimanded them for saying so. I know not
what to say to the proceedings of Chancery in
this case ; but I suppose upon this trial, you
will inform yourselves by the liest methods you
«an ; and every man, aocordini; to his judg-
ment, be for orafjfainst the bill. If upon what 1
hear, I am of opmion he is notoriously guilty,
I shall fi-ecly pass the bill. If I do so much
•8 doubt that he is guilty, according to the old
rule, « Quod dubitas no feceris,' I shall not
be for it ; 'and in order to this, I am for hear-
ing every bod;^ that comes before us.. It is
saitl, that possibly Goodman is withdrawn to
air John Fenwick's prejudice, I would be
glad to hear that ; if so 1 shall have the worse
opinion of the bill. They say, it is notalledj^
in the bill, concerning captain Porter's bemg
tampered with ; but it is a]ledfi%d, that Good-
man is withdrawn ; and that it is not dledged
that sir John Fenwick was privy to it ; but it
may weigh to gentlemen's judgments, how he
comes to be withdrawn. They that tamper
with one witness may be thought like to tamper
with another. They tell you, that the evidence
of a man's wife will not weigh against' her
husband. It may be so in point of law ; but if
you think yourselves bound up to the strict
roles of law, dispose of your bill presently.
Sir W. Coryton. You have been pleased to
give leave to the king's counsel to prove
matters against sir J. F. You have heard capt.
Porter upon the fact. If they had opened the
matters, that sir J. F. was instrumental to
convey Goodman away, I should have been
willing to have heard it : but they opened it,
that m^ lady Fenwick was instrumental in
convoying away Goodman ; and this ought in
no iBorttooe admitted. An hon. gentleman of
the long robe made a difference in the proceed-
ings between the court of Chancery, and the
courts of Westminster- Hall ; but I would fain
know, if a fact was stated, Whether my Lord
Keeper could determine the matter Liefore a
commission went to prove it. It is true, we
are not tied to the forms of law, but we are
tied to the forms of justice. I know no case
where a wife is admitted to be a witness for or
against her husband. In Brown's case, in-
deed, who took a woman away, and forced her
to many him ; the question was. Whether she
should be admitted ? And in that case vhe was
admitted as a witness, because the necessity of
the thing rcquirrd it ; and there was no other
way to proie, whether he liati her consent or
not. Another case there was of my lord Castle-
haven, where from the nature of the thing it
was admitted ; for it was impossible there
should be any other proof of it. but if my
lady Fenwick be ^\\iy of this matter, it must
only by way of inference affect sir J. F. T-hey
tell you, they insist upon it as an indictment ;
then it comes to be a matter of consequence ;
and therefore, since the matter hath been fully
staled to the House, as to what they would
prove, I think we may now give our judg-
ment upon it.
Mr. jBof coven. Yoa are here in yoor lepf •
lative power, and are no more tied to the rales
of law in examining of witnesses, than you
are in giving of judgment ; for you can give
those punisnmeuts that never are given ia
Westminster- Hall. 1 am of opinion, diat mj
lady Fenwick cannot be examined for or agaiiut
her husband ; but if he send her to solicit ftr
him, it shall have some weight with me.
Those that do not believe it from what hesaji,
may give their jadgmeDtaocordingly : 1 dcwe
to know of this gentleman, if I do not beliefs
it, whether I can give judgment againat hioif
I believe a man's conscience ought to go with
his judgment.
Mr. Speaker, I will read the QoestioD:
That captain Porter be examined to the atleapl
of taking off his testimony as to the Ute cpi-
spiracy. .
[Which Question being pat, it passed in the
affirmative.]
Mr. Hariey. I suppose yon will let the
counsel of both sides have first done with their
questions, and then there will be some ques-
tions proposed to you.
Mr. J. Howe, They tell you how that ar
J. F. was indicted, and that Goodman is with-
drawn ; but there is one thing the ooonsel of
both sides slip over, and that is, sir J. F. bslh
given in false informations ; it looks as if tbej
were agreed on botli sides in that matter : 1 de-
sire the king's counsel may be a«ked, wlietbcr
they have any evidence ot tUat matter i*
Col. Crauford. Since I am mentioned u
that paper
Aam. RuskI. I believe, though that gende*
man was afraid that matter would have beco
Eassed over, yet that the gentlemen of diii
louse that are therein named will take care,
for their own vindication, that that matter
should not be slipped over; I suppose the
proper time for that is, when the evidence ii
over ; I assure you, if nobody else will, I will.
SThen sir John Fenwick, and the counsel of
I sides, and captain Porter were brought iii.]
Mr. Speaker. Sir Tbo. Powys, the Uoon
hath considered of your exception to the tes-
timony of captain Porter, as to the point lie wu
to be examined to, and they are asreed, that it
is fit that all the evidence should be laid before
them, and they can judge afterwards, whether
it be material or fit to be allowed, or not.
Therefore, captain Porter, pray do you give
the House an account at large of whatatteai|rti
have been made upon you, at any time to
draw you off from your testiauiny, with re-
spect to the late conspiracy.
Foricr. I had a meeting with one Clancy,
first in Mitre-Court, at , and afktf-
wards at the King's-Head tavern
by the play-house : at those meetings he pi^
posed to give me 300 guineas to bear ay
charges to Fraiice, aait to aend me • bill 6r
; tipoji a Bill ofAUainder.
and likewiM that I •hould beal-
f. a year.
aker. How Umg had you been ac«
Bfyre? — Porter. Several years.
aker. Did he tell yoa who he came
He laid, he had been with Fen-
> desired him to make thia proposal
aker. How often bad you meetings
?
Aboat seren or eight times.',
uker. What satisfaction did he give
ir John Fenwick would perform the
?
He told me, my lady Fenwick and
loDtgoroery should meet and con-
thing that night. The day before
9, 1 met with my lady Fenwick, who
y lady Montffomery could not come,
le of her children was fallen sick.
nker. What satisliBu^on did she give
ir John Fenwick would perform what
She said, what Clancy had proposed
Uuoly be made good.
mid. Did you receive any thing in
rsuance of this agreement?
I received 300 guineas of Clancy,
■omised to me a bill of SOO more,
deposited by — Feuwick in his
>e sent after me into France.
mid. Pray, what letter was that he
•u?
He brouffbt me a letter, and said it
y sir J. F. to king James on my
iker. Did he deliver that to you ?
No ; he delivered it to the gentle*
ras to go with me, one capt. Done-
iker. Why did you not take that
your own bands?
I had it, and read it, before it was
mid. Do you remember the contents
As much as I remember was, He
majesty, by reason that my going
tu save my lord Aylesbury and my
gomery, 6cc. to pardon what I have
vcl. Who subscribed it ?
It was not sir John Fenwick's name ;
dd me, king James would know who
m.
itel. How did you proceed after the
ith my lady Fenwick ?
The next night after that he had
ly money, and shewed me the bill,
to go away the next day after ; tbey
oat was provided.
inei. Can you tell whether the boat
\td?
Tbey were taken up presently after.
•Id. We will now produce a record
Iht evidence that he hath given
A. D. 1696. [590
yon: this person hath been convioted for this
tampering.
(Accordingly the Record for Ckncy's Con-
viction was produced.)
Sir Tho, Powyu I desire to know, Whether
they ofier this as evidence against sir John
Fenwick?
Mr. Speaker. They oflfer to prove, that this
very peraon hath been tampered with, to take
off his testimony ; and they leave it then to
the House to judge, who is most likely to be
guiltv of Goodman's withdrawing. They begin
to shew you, there hath been an attempt to
take off this person's testimony i you have
heard the person himself to it already : so now
they offer to read the oonvictiim of Clancy to
this matter.
(The Record of Clancy's Convictk>n was read.)
Serj. LooeL We will prove the like solici-
tatkm hath been made by Mr. Dighton, who is
solicitor for the prisoner at the bar.
Mr. Speaker. What is your witness's namef
Seij. Lovel. Thomas Roe: if you please^
Sir, to ask him what endeavours hath been used
by Mr. Dightonto make use of him, that Good-
man miffht withdraw himself.
Mr. Speaker. Mr. Roe, Yon are requhed to
ffive this House an account of what hath i
between Mr. Dighton and you, in order ^to
take off the testimony of Mr. Goodman.
Roe. About the middle of September last
I had occasion to go to Mr. Dighton, to en-
quire, Whether the commissioners of the land-
tax in Surrey sate ; for I kniew he was con-
cerned in some affiurs for that count v : he toM
me, he did not positively knew, but would
speedily enquire. At the same time be took
occasion to tell me, he knew it was in my
power to do sir John Fenwick service. I asked
him, What he meant by it ? S&ys he, I know
vou know Goodman well, and it will be the
better for you if you will tell me: I asked
him, What he meant by that way of talking?
He desired I would meet him some other
time, and I should know further of bis mind.
Accordinffly 1 did meet Mr. Dighton: saya
he. You know Goodman well, ml if ymt can
say any thing that can discredit Goodman's
testimony, you shall have 100/. a year settled
upon yon for your life. Says I, Sir, I do know
him well : says he. Did yon never hear him
talk of ^isoning the duke of N. and robbioff
on the highway, and that he is concerned with
clippers ? Says I, I have heard him talk of
those matters several times ; but you cannot
think 1 will be a witness, and expose myself,'
and disparage people till I know- for what
Says he. For that you shall be satisfied ; you
shall have 100/. a year settled upon you, pro-
vided you can discredit Goodman's testimony,
that sir J. F. may come off, and it will be done
by a friend of yours. We accordingly agreed
to meet the next day nt a. coffee-house in the
city, and appointed a friend to be there i but
Mr. Dighton did not meet at the time ; and the
I
I
I
I
191] 8
v«i9oa be t«>U ne w««, bvoaufe air 1* F. wiw
that ilay to t»e sirralgued. As •ooii m Mr.
Dtghtou bad made tlits propfvsal, I told Mr.
GoiHtman oit^it^ ami he ii,dvised me Ut go ou
with bjm, aud see if I coald gel any offbr under
it)« 10 ikie «ily» aD«l a iVieod tu be th^e w b«ar
in€. 1 weut, and irdd >k. Digiitoii ; but Mr.
Uo#da)Mi wouM wH lie saUsfied wiib thai, but
laid I musi go U) the tu-chbihbop, and lell biin
IV bat pu^ed ; so 1 did g» and idl the arcb*^
liisiu>t> ifhat 1 have told yoii oow.
5lr. iipi»k6t\ Uad vqu any mettiof alWr
Ito, VoB, oa Uie i9th of 8€|VtenDbfr ; and
tiieti h« |t)tttl«i i^fcat tftseveratiotia^ Uiat whal hi;
j^id bliould Ijcs tH!rturRi«d ; and U\at 1 sliauld
not only oljhge sir J* F, but ray lord lHantgo-
Sry i and that Gooilnian was a lost inaa by
0|^ become a CO ramOo evidence; and ttjat it
%«qul<l not be in bis poif«r to oblige aoy totn,
«K)y ladv ducbess baviiig diacbifged mm ol'
Ills ctnploy, and b« would not be in a rooditioii
Id liy I'uftW tW me ; aad^ sayi» lie^ Whaisver
ymt would bftve gpiten by serving: my lady
4ilfili«aa in ker caocefna^ aball b« luade u|t
MVtr whI above tills IDO/. a ye«r Ibat 1 have
l^rotniseiK
Sao* Gmtld* I desire h^ may be asked ^
Wfiifflr'"' Qoydnmn did not acquaint (iioi« tlial
%8iil6v oi'sU' Juhn Femvick':i baiJ letsu witb
bitn, and u^jon what occiislon f
Hoi* About the time of the preftTrinf of
llaaNU agaiuU fit r John Feowick, I saw liood-
at Hicka's-llall ; and a httle after be
me, that a sister of sir Jobn Funwkk^s
come la btnit and made some prOfKiaalfl lo
; and I aoouaiDled tlie dnkc of SShrcvvs-
Iff 't deputy, air. Vernon, with it,
Mr. Dighion, so
Old you [lurvtio iliis discourse
to c:otne to any ^mi*
liir«a|^reatiieBt?
jte. Pio otherwise than what I taldyou;
iil|R design w«a to have Mr. Di^htou to hai^
glfsiLii las ift writing^, or else tor turn to U^^e
aaid it hslora soine other man; but i don't
Immw any thin^ whereby 1 could have di^cre-
diied AcU, Gnodxnan^ if he would have done it.
Horj. GauliL Von observe, &ir, tliat one of
tly^ viitiKiiaes, wbos^ Tuuoe ii subscribed ti> the
hill of indiotniaii^ is withdrawn : now lo give
yon an account thai he is withdrawal I desife
limJtmg** ijrodaiiiatiou may be read.
JCioiitfrs. No, no.
Ifarj« £000/4 W»bavo Mr. Goodiiwa.'s eacm-
mtnalain uiniar th« hood of Mr, Vehiod ; we
pray ilmay be read*
8ir Xh9. Famyt, Mr. Speaker, T desire to be
i a word to this matter t 1 take this to be
aw«(t point, not otdy as it concerns the life of
thia>MVK)ii, but as it may l>ea matter of exam •
pLo in all tiiiiea bcecalter; th^it which thry
would o^f ts nWialhinijr that Mr. Goodman
> awom when he wus eanmuied by Air.
sir J^ F. nnt being present or pnvy,
I M^4>ppafftoBity given to cmm-eicamine the
M iiiitl oo««Mi?«)tluil-'Gaii09th»4»i6red
^inH Sir Jt^ Feimckt [SU
as evtdettee ; for if ij^ abi^d W att^anftl Ih
evidciice, then wbdt ts sworn behinil a msa't
back, in any case wbalsoever, may as vr^ be
hroduced a$ evidotice ngsiinst hini 1 aadlbn
know, thai in a ea«)e ot^ tlMs t Aloe of* flve m*
hng(», DO depositions or cxamiaiitioos of say
tuan can bo maiia use of; ami 1 stn
will not say» thiA llic depoakiiwia lakaa
other pefsons, where a man t% nol a
be tuade uae of as tfvidanr^^ iiiAi
if uot admitted where proi> icertkod ia
tbelQwesidcgfee, I hope you wui Qcvcrafciil
it in ihia great plai.^« from wHcpeo iaAnw
OQurts (as lo justice) take titeir maamir».
Sir Earth, Shitwrr, Mr. Spealtar, 1 dsiBi
you would spans me a word «f the imMne sfale.
I humbly oppose iba reading of this examios-
tion, ss u(A agreeable 10 the fuIks ed pr«eiiei
and eridanoe, and th«t wbitth a wholly new *
and iliTs in civil cansei cannot possibty be
done : no depositicio ol a person can bt ««d^
tiniugh beyond sea, unieis io cases whem tbe
party it is to ha t«9il minst wm prtry to ike
examination, aud might haw crasa-eiatDiaeA
him» or extintoed t0 kit cradit, if he thongbt
fit ; it was never prelandad, depositions 00m
be read upon other circnm&tances. But
mioal casea^ I appoat to the gentleoieb
other side, who know the prooeodinga
Old- Bailey very weM^ it was
oily, in an appeal of murd'^r if di^i
taken before ilie corotwr, a >« aik
minalian of witnesses iiji
though the appeal be for tlie same fart,
order to brttig the person to fiv* s^rmr
meut ; \ et, ia thai case^ tho^ ri>
be reaif, because it la another *
ueve^ att0inpted iu any court <
the cjcsminalioii of wiinesses l
back, «;ould lie rtnd in any p] •
Our law requires persons 10 ti\<
ibcir teitimony Twa voc€ ; unt^
Ihcir testimony appears tfwlible, or not, hy
therr very counlenaoc^, and 1^- r»'«""ni'f of
their deU\cryi and tljeir falsily 1
bo discovered bv ntr ^rinn tU n
ask tiitMUj and li
circiimiitjf:c.;*s,
of a V ; vrhii'h *'
biUiK L;«Hher, iX\v^
well at tin»t j mA ihis* w« ar^
this examin^iion **hon!H hp ^I'ln
-^N-- ■" .
OOt <i!
eomincr iho njtes < ijnsitue, u is wr
criminal ca^es^ espec>:illy as our coo*
that the person shaM see his ar*"^-
uiav KWfiir a dfp'tsitiiMi re^hiC'
whoss consnier^-^ i»Mi.,..^ m,
publicly acouai
perienee hath *»li
yviil calommate atioiher privately, vrtil n*H |<»*1
tify On? same in open court of ju slice, Wbat I
Goodman is, it is not proper for ns *t presealj
to give an o«ciniot of ; nut we op^e it at ^«*
sent, *br that w« were not present, nor pnvj
tior could baft crat-emBAMtf Ifttn ; it ii ool!
wf.' ^rr
iii^l
5933 ^po" « ^^^^ of AttainJer,
an infomialioii before a private justice ; for if
not SI), vre know not what autlioril^' ho had to
examine him : and then if so, Mr. Recorder
knows, that in the Old-Uailey, if Gootlman had
died it had not been eTidcnce ; * in case he had
been kick, or withdrawn \\ithout our privity,
thev could not hare read it ; nay, if be were
tiithdrawn by our privity, it conhi not be read :
it is true, the inciting him to withdraw bad been
punishable in another man, but couhl not have
Deeo read to have convicted the party; and
lince this examination could never have been
read tljere, and if it must be unjust, and hath
Dot been practised, I hope^ou will not do it now.
Mr. Speaker. Mr. Segeant Gould, what do
you&ay to it?
Serj. Gould. I observe this grentleman's ob-
jection, why this examination should not be
read; and, under favour, we think we are re-
Itular, as this case is, to have his deposition
rvtd. It is true, as longf as the witnesses can
be produced, in all courts and practice of the
law, vou shall not read his examination, or
what Is taken before a justice of peace: but
tliat is not our case ; it is now fully proved be-
fuTf you, that he is withdrawn ; and it is fully
Ufore you, that he hath gir en evidence for the
Liiur, and hath been examined ; and this is an
ritraordinary case, and that is the reason we
arv in parliament : he hath sworn this matter,
anil before a projier officer ; why then shall not
bi« evidence be read and allowed when he is
ailfully withdrawn, and we iikv, by the con-
Irivaoce of the prisoner at the" bar ? And the
thia^ speaks itself. Now, with submission, I
take it to l>e every day*s practice, that where an
etideurc is dead, his de|M}sition shall be read.
It appears to you, that there was to have l>eeu a
trial, but t!ie witness is withdrawn ; and it np-
feu% jduinly that he hath been tainperinj^.
Tbe eviflence is full in the case as to Porter ;
and we have produce*] a record of conviction
tIjBl does confinu it : now this is such a prac-
IHX, we come into parliament to have it reme-
ditil ; for otherwise men shall commit treason,
and by their contrivance and ai-t the witnesses
shall be drawn away, and the prisoner shall not
be brou;;ht to condign ptioislinient. Here is
the record in which he j^ve evidtncr, and hn is
nitbdrawn ; and therefore 1 hope in this «ui«ic,
»e shall be admitted to read iiis deposition :
§otl deny what the gentleman sa^.s to he the
imctice; and Mr. Recorder can t;ive you a
letter account, who knows more of the prac- '
ticeof it, that if a witness is dead, they may |
Twd his depositions. We are here before you i
in pirlianicnt ; and by the same reasons that '
ntbci-s have been tam|>cred uitli, this wit- !
luaa may be presume<l to l>e tampered with ; i
and therefore we are in your judf^mcnt, whe-
* " The evidence which a witness ppave ou
a former trial between the name parties has ufter |
hit death been read in a ciwl action : hut this is
aot altoweil in a criminal prosecution.*' Pcnkc's
Law of £vi4Jknce, chap, S. s. 2. art. Deposi- j
A. D. 169^.
[594
VUL. XIII.
ther in this esse his depositions shall not be
read i*
Serj. Lofvel. It is olijected, on the other side,
Thatthisevidenccoughtnotto be offered; and foi^
what reason? Because, say they, a jury ought
to go * secundum allt^ta ct probata ;' and
what is not strictly evidence by law, you arc
not to take notice of; but in criminal cnsca
(which is this case), where persons i\o stand
upon their lives, accused for crimes, if it ap-
pears to the court tliat the prisoner hath, by ^
fraudulent and indirect means, procured a per-
son that hath ^iven ha formation against him to
a proper magistrate, to withdraw himself, so
that he cannot give evidence as reg^lariy as
thev used to do ; in that case his information
hath been read ; which, I suppose, with hum-
ble submission, is this case ; but I suppose we
are not here tied np to formal evidence ; but it
is our duty, since the house hath commanded',
to lay the whole fact before you, and you are
judges what is material, and what is not mate-
rial.
Sir Tho. Powys. Please, sir, to spare me a
little ; for sore this is no small matter. I diil
expect that they, if they intended to have sup-
ported this evidence, would have mentioned
some author, some case, or some precedent
where this has been before : but he makes such
a distinction, I am mightily surprized at; for
Mr. Recorder cites no one instance, that ever
he saw such a thing in his life ; nor cites one
book that hath such authoritv ; but he gives
you a distinction, whether it be of his side or
our's, 1 must submit to you ; for he seems \o
agree, that in cases of property, such evidence
is not allowed ; hut in cases of life, in which \«e
ought to be more tender, he says, it is to be a1 -
lowwl. Sure if it be not evidence where five
shi:lius;s only may be at stake, I submit it to
you, whether it ought to be admitted in the
case of lifel* Tor my part, I know nothing of
it, if it be a rule; but 1 always thought th6
evidence ought to he more clear and full in the
case of life, than iu the case of property ; but
Mr. Recorder turns it u[K)n us, and says, .
Though it is not evidi nee in case where pro-
perty is concerned, yet it is evidence in case of
fife : but I desire he will shew any one lawyer
in England, that ever s:iid it, but himself.
Sir ]{. ShoiLcr. 1 answer to what Mr. Ser-
jeant Ciould says: that this is an extraonlinary
case, 1 will not pretend to say any thing, yoa
are the proper judges of that ; we now oppose
it ill rtspect of the rules of justice. As to Mr.
Recorder's distinction between civil and cri-
minal causes; he halh admitted, that in civil
causes it woulil not he allowed ; and 1 hoiie you
will be of opinion, that it ouijht not to be ad-
mitted in ciiminal. Thejnry must go ' secun-
« duni allegata vi probata.' " I dcisire to know
what other rules a jury hath in criminal cases f
But they say, that 'a juryman hath not a<
much upon hiMoath in Irving a prisoner for his
life, as iu trying un action of trespass. Is not
the oath, » Vou shall well and truly try, &c.
according to the evidence vou have heard?'
3U
595]
8 WILLIAM III. Proceedings egabisi Sir Joftu Fenmcl-^ [596
jSow, I irould know wbeth^r tbp form of tb«
oath, ubich the wisdom of our ancestori bath
thougrht fit U use for 1,000 jetrs past, does not
flirect what diall be evidence? Evideoce of ;}r»-
ma facia must bo evidence of Uring persons : I
am sffeakiag for the life ofa maniand for main-
taining the rules of law, which 1 hope shall
Continue for ever : and that is, that the eximi-
nation ofa person that is absent, shall not be
read to supply his testimony. What you shall
think fit to fio here, w« must submit to; but
that it is allowed below, we moat deny.
Mr. Btcorder, Sir, I do, witli humble sab-
misaion, stand to what 1 said : as to the defini-
tion of allegata tt probata^ in matter of proper-
lyv we i^gree with tliem ; but as to allegata ei
probata f in matters crimsnal, we roust diflfer
with them : I did say it before, and do say it
l^in, with submission, that in many cases
criminal, there need no positive eviilence at
kll ; and yet the jury, acconlin^ to allegata tt
ptxiataf m that case, may convict a cruninaL
And I do say, with submission, that where
there is no postive proof at all ; yet in that
cose^ many criminals are, and still will be con-
victed. I did instance before in the cose of
cTipping and coining, which are matters so se-
cretly practised, as it is very rare there can be
any positive witness to jprove the fad: what is
then the method ? Why, we go by circam-
stancca, by information of other persons, by
tools, and otlier instruments that are found ;
and though nobody ever saw them do the
^uigt y^^ tlicy are convicted. We do not
offer this evidence to be as concluding evidence
as if Goodman was here ; but a corroboratinuf
evidence of what caiitain Porter liath said. Ti
it did wholly depend upon this evidence, it
may be it might have no great weight ; but
oince there is other evidence viva voce, and
since you have been pleased to order us to lay
before you all the evidence, we humbly ofFi-r It
to you, and pray it may be read.
Kir. Mantei/, I humoly pray they'may with-
draw.
Mr. Speaker. If you please to withdraw ;
but first I am required to ask, if on both sides
you insist upon this point ?
And the Counsel for both sides declared,
they insisted on it. [And then withdrew.]
Mr. Maniey, I should not have presumed
io have given you this trouble of theii* willi-
drawing, but that a thing is insistcil on by the
counsel for the bill, which 1 liiink is ot'tho
greatest conscquonce to all tLi* lri:enien of
England. It is true, the rule** ol' \Vcstniiustcr'
Lall are not binding to the Irjjislalivo power ;
but 1 wunid not have the legislative power to
be governed by the private sense of any nmu
iviialsoi'ver, but by those rules that arc the
rules ot'justiee and coiumou eqiiiiy. God ibr-
Lid tliiit \vc slionld, upon suppui;itions, su|>-
Jose ourselves out of all the ri^hts ol'lae law !
never heard any gentleman of the long robe,
before the learned scrjennt at the bar, assert,
that aa examination before a justice of the
neaoe couM be read agmast a man far his liff •
It is known to all tlini hare looked iolo the
A B C of the law, that it was net er pradiied.
It ia true, in equity, depositions Hwy be rttti,
because they are taken by the ooiiseut of all
parties ; and it is as well a deposiiioa of aes
side, as oi' the other, and the wilBcases may ht
cruss^xamined : but that is Dotbiog (o tlw
purpose.
Mr. Shane, I bcliere I may saTe yoe •
great deal of tronble in this matter ; for Ihm
gentlemen from the bar thai mode dikjetAoBM,
spake without book, but I speak by book;
[having my lord chief- justice Il'ales's Pkas
of die Crown in his hand.} No less a ma
than my L. C. Justice Hales (and 1 think ht
was past his A B G oflbelaw; I knowoot
how far tliis gentleman b advanced), in Ui
Pleas of the Crown, in tliat part where be
shews what is evidence to the petite inry, be
says ; First, by the statute 1 and 3 Pbilip lai
Mary, c. 13, and Z and ft Philip and Mary,
c. IS, the justice hath power to enunioi
the ofiiender and informer ; and so hegoci od
in several {Mulicolars : and then, 6, he njt,
these examinations, if the party be dead k
absent, may be given in evidence. I mmt
allow, such on examination not of the same ao-
thority, as if the witness was present it wobU
be, because he cannot be crass-examined ; bM
still it must be of some weight, and it mrntb
read : but in this case, it is of greater «rei|bl
tlian in thot which my Lord Chief JnHei
puts ; for he says, it would be evidence, if tin
party was dead ; or if he was withdrawn vitb-
out the consent of the party against wbooi be
is a witness, and that comes to the case in
chancery, every day pi act'.scd ; that if anjr
{>cr8on gets my deeds and evidences into fan
lan^ls, and he liath emliczzled the deeds, thej
shall be presumed to siy what I allcilged, be-
cause it is his fault he does not produce then.
$0 this withdrawing I»y the instigation of nr J.
F. is a strong presumption that what iieswciii
against sir J. F. is tnie.
Sir lid. Temple. No nr,an can give evidence
of any depositions, uor \v«is it over admitted
to be evidence cither upon the parly's death or
absence ; and I v.cuM not have tliat dcririat
Sass, that we are not tiod to the ruk^s ot' law.
ly L. C. Justice Vanghan, when hewaspf
this house, told us, wc were not bound to the
forms of law, hut we were tied to the rules of
law ; and if you are not, how will you judjjc
of this crime:'* How will you ju*Ige it to be
treason in the worst oftiulesi* in the trial of
my lonl Blordaunt, who was tried before the
high court of jui-ticc, they would nntiiUowof
this piece of cvi'.lence, thoui^h they had Uiroira
aside jurie-:. We. ore tied by the* rules of bv,
or we arc lictl by nothing.
.Sir T/io. Littleton, The worthy rambcr
here tells us, we are tied by the rules of lav,
or we arc tied by nothing. I ho|»e lie doe«
net intend to put l!:e pun upon r.s, that waillf
a noble lord, » You are tied by rales or bo
rules ^ if you arc ti?d by uo rujes, whatnd*
►fl
nfon a Bill ofAUainier.
eTonticdh^?* I tiMik 3roa may act by rules,
id* yet admit of this eridence. I told yoa
lore, I should aot nchoo nyself so tied b^
e raJeaoTlaw, hutthsA I would bear all en-
laee that should he oiered: aud I do not
sk it is for o«r honour to stifle any ihmg
MS may hrinff out tlie truth. A worthy hiw-
er said, let tbem produce one evidence that
I of the recorder's opinion ; and a member
sih prodneed the opinion of rov L. C. Jus-
iee Hales : and I hope we shall not be de-
nrred from the satufiiction of hearing what
ikey might hear in the courts below. Here
us two witnesses that hare beeo enunined
i^iiait him, which the jury did believe that
Mnsd the bill. If we cannot hare these two
«ilBesKS,letttshafeasmucbaswecan. We
hsrc heard wlMt one said ; we hare an oppor-
taity of hearing what the ether said. No,
m the genlleracr, we do not desire to be
iwmMd; but 1 believe it must come to that
tthiL
Sr Af. IVmpZr. The gentleman that spake
hrt, insinuated, as if 1 had dropped some-
f^ be oould not understand. Give roe
hitetotell Tou, there was the courts of the
Mdents otWalcs ; when they urged rules of
Inr, then they were a court of equity ; aud
vhea they argued from points of equity, then
ftcy were tied up by the rules of law; and so
fuc judgment neither aeoordiog to the one
nr the other ; and so it was taken away by
let of parliament
Mr. JkscMws. I have seen it myself, that
I justice of peaea has been examined himself
li to depositions he bath taken ; and I take it
to ke an ordinary ezaminatkm.
Mr. HmrcouH. Sir, I must say, if you were
li pick all the absurdities out of the trisls in
the last reign, 3rou couM not pick out more
than has hem eiideavoured hv the king's conn-
hI to be imposed upon you this day : this does
a ssme measore convmee me or what was
laid by another gentleman the other day, that
t is much better to be tried by an assembly of
100 gentlemen, than at the Old Bailey, lliere
was a quotation of a learned author ; and the
pmllemau read yon what was evidence, and
vhal WM not: and the eondnsien was, That
theie depcMitioBS, if the party was dead or ab-
Hot, is evidence. Why, sir, if these depesi-
lioBS be evidence if the party be absent, then
what are we doing of all thitf day? Ifthatbea
eatain rule, there is no manner of need of ap*
plying to this eztraonlinary vray ; bat if yon
fhase to enlsr into the consideration of that
psiit (I an neither siraid, nor unwilling to be
ndWmed). If gentlemen will take it de bene
car, fiir better for worse, with all my heart ;
Wt if you enter iotothnt matter, I wdl freely
idlyon Riy opinion of it.
fir Edm. Srywonr. It hadi been made a
fmiuu, bow ikw yeo are bonnd to pursue the
nicseflawP 1 suppose it ie no new thing I am
ping to Si^ ; Tlint Bills of Attakider, and
^igiwjta of ntiwnder, havn been reverserflfor
T lit row, hii biwiBw thi
A. D. 1696. ISS6
have net proceeded according to the rules of
law : I will not say, you are bound bv the
rules of inferior courts, but you must be bound
by the rules of parliament, and by the proceed-
ings and practice of parliaments, which is th«
law of pvrliament. And then I would know»
whether this house did admit of an aflEUiavit for
evidence ? and the reason is this, because by
that yea make this, which is the superior
court, hme, without the assistance of an infe*
nor court.
Mr. G. R. Bridget. The matter before yoa'
is, whether sir J. Fenwick be guilty, in your
jud^ents of this conspiraer? and if so I can-
not imsj^ne why you shonhl not take all the
information that is offered to you ; and why not
hear all the circumstances of it ? If you do
not read this affidavit, I do not say hut it is a
kindnem to sir J. F. but wliat kindness will il
be to the country and government ?
Mr. James Montague. I hope yon will not
spend much more time about this, because the
law is so plain. If there be any thing in the
oMeetion, it is this, Tliat if it be evidence, the
other courts below may proccrcd upon it : but
that 1 take to be no objection neither; for
though it be evidence, tliere are not two wit-
and the courts below require two wit*
nesses though there be other eridenee, and one
witness besides; so that you can't try hin
without two witnesses: it wonM be aiimitted
in the case of felony, and there two witnesses
are not required expressly by the law: and I
can tell you, upon my reputation, I have sees
it done several times. — ^Ttie learned ^t. tells
you, my L. C. Justice Halcs's opinion is so,
and that is grounded upon an act or parliament;
and I think that is oi greater authority than
any judg[e ; and therefore I think that objection
will vanish. He says, you have no authority
to receive affidavits ; but sure we must take
notice of acts of pariiament ; and if that re-
oHires depositions to be taken, and to be evi-
dence against criminals, we ought to take no«
ticeofit; so that what the kw makes to btf
evidence will be good in this place.
Mr. Hariey. 1 look upon this matter under
your debates to be of the greatest consequence
to the lives of tlie subjects of England, that
possibly can come before you: gentlemen have
given you several reasons for rnuling these de-
positions; one, that it was ray L. C. J. Halcs's
opinion ; another, that there is an act of parlia*
moot for it: now, 1 think, it would be proper
to johi issue in theae two points : If any act ot'
parliament can be produced for this, then the
debate wilt be at an end ; but if there be an act
|iositive in fact against it, then I hope, you will
not receive it : and if my L. C. J. Hales's book
have not one word relating to this, then I hope
that will be no argument. He begins his chap*
ter of eridenee, and says, That the evidence te
the jury, in cases of treason, must be two wit«
nesses ; and then comes to the cases ef felony :
But b that any debate before us P and he tells
you, that informations might be taken of the
pertee hiuwclf, but that was mi by the —
509} 8 WILLIAM IlL
rupii law, b«t was allo\vr<l of by particular acts
<if parliament ; and tlipn teUs jou, (hat Wis in-
ii)nDation, ami tliat dcpositiuns before the jus-
lice, were to he atlmitted (but he was to be by :)
But is this any things to Ivail you ? Have they
brought any statute that tells you, there must
he tuo nilnesses in this case ? Ifyou will take
uodce of a statute, you must take notice of a
statute that is in point. If any man Kuflers by
one witnc<»s, I bchcre all the world must say , he
sufTei's niiju.\t1y : I think it is of the g^reatcst
coDse<)uencc to admit of aiFidavits. Here it is,
tiiat the boundaries are established for the lives
and libertirs of mankind : and this is an ob-
Qen-atiou that is found in histor}', that those
that hare broke their bounds down, it hath re-
tjjrned i\\wn them to their prejudice.
Sir liobcrt lUchard. I am sure now we are
not upon the point of rcadinof, whetlier it be
much or little, but upon the point of hcarin"',
luid that [ speak to : and, I think the gentle-
man near the table did not mistake what the
liar said ; for tlie counsel on the oilier side
insisted positively, that nt-ither by the practice,
nor by the books, was a de])Osidon to be read
as evidence : against that the gentleman near
the chair produced tliat book. .'Vs to tlie mat-
ter of treason, every parliament man can re-
member, that you have made an act, that there
i^hall be two witnesses in cases of treason.
Now, At the same time, it wiji be taken notice
of, that you have taken care in that act, that
the proceedings of this house shall not be tied
vp. The gentleman tells you of a court that
wavered between law and etjuit}', and so came
to nothing ; and I am afraid, if we bring the
House of Commons down to the courts of
Westminster Hall, they will make nothiii:^ (>t'
vs eilber. I do not say tliat this paper shall be
SIS strong evidence as if (loudman was at the
bar ; but to s;iy, it shall weigh nothing, I can't
agrt?c ui'itJier : 1 agree also, to inukc a iroiuuion
practice of reading affidavits, will lie i.A' ill con-
sequence : and if you take this to be a niatler
of small consequence, I am not for reading this
afiidavit. Now 1 aim not ai sir J. Fenwick's
blood, hut the safety of the king and govern -
nirnt : and J would not refuse any evidence in
this case, be il never so small. 'I licse gtnlU*-
men spi-ak a:>ain>t a matter being evidence be-
fnc it is rt'a«l ; il is offered as evidence ; if it
be small, or come to nothing, it is the better
fur tliepii*^onirat the bar.
JVir. Ptiluitu, I am indifTerent whether I
hpar that pa^ior read, or no; but what is said
by a learned ^rcni. 8(arlios ine : Says he, in
WcstminMcr Hall they arc lj<innd to the evi-
•^lence oi'two witnesses, and there this evidence
would not be proprr; hut heie we are upon
another im»t. I ho(»e we are not here upon
anotlu r UnA ; I hope, though here we are uot
to be lied b\ the clinanery of the law, we are
to be tied hv the (quity and substantial reasons
oi it. J desire to know, if any one can be tried
for treason upon one wiine&sf And if we are
not tied by the rules of law, we njay hear any
evldenoe ^Mhaisocver; il' the king's counsel
Proceedings againsi Sir John Fentoicl, [600
thinks it may satisfy your fancies, it most be
received.
Lord Cults. T conceive, ffentlemen, wc are
out in the way of arguing : I mnit put you in
mind that we are, at tbeMHtom, only arguing
against the jurisiliction of this House : ami
though that matteir hath been settled before,
we are told very often of the law anil rules of
Westminster- hall. In answer to that, 1 mim
observe there are several sorts of hws ; there ii
the law of natifre, the law of nations, the law
of God, and there is the legislative ; and it is a
self evident maxim, not to be contradicted,
That no superior is to be circumscribed by u
inferior : And f wou'd ask, if the courts bdmr
are not inferior to the parliament T There ii
nothing can limit us, but the law of natore,
tlie law of God, and the law of parliameoti;
and though 1 cannot tell you very well wbilii
the law of parliaments, yet no gentleman hath
said any thing upon that subject, tliat isajraiBit
the question before you : The matter was in a
course of law ; but upon an extraordinary acci-
dent, and for extraordinary reasons, it is brought
before you. The accident is the wiihdrairi<
of a witness ; the reason is tiie securing of the
king, the government, yourselves, and poile-
rity. 1 do not think any man that sfiokeagiiiit
it IS for favouring sir J. Fen wick; for 1 think
this is the worst way : 1 would appeal to eteiy
man, what prejudice it b to you to hear thii
paper read? and it may be a disadTantage ts
yon not to hear it.
Iklr. Hoice. There have been many iTjni-
ihents given for and against the rending of thii
paper ; and if 1 did not take it that the read-
I ii)Ti- of this paper could be of uo use to the
ju.l:,nunit we ore about to make, I should be
Vor iliir reading of it: Either it amounts to a
proof of high-trtason against sir J. F. or it
siirnilii'S nothing tt» you. Ifyou suppose il w
vvt-irl, any thing, I can never agree to ilic read-
ing of it { for it is only an hearsay broujjlit to
convict a man that is tried for his jile. But
there is a greater argument which weighs un're
than the reason hath been ui-ped ; and that is
your entmies will have an advantage, an«l jour
government is at stake : Hut 1 do not taketlul
to he so much an ai-gunient of their strength,
ns of their weaknes-* and neglect; however,
when they prove that, I will see how far I caa
go. It is said, that in the worst of times, they
would not convict a man upon one evidence.
As to sir J. F. though he should not be a good
Kiiglishnian,yct his cause mav he a goodtufj-
lishman's. The question is, Whetlier tlicre be
more danger by the withdrawing of a wilw^i
and the escaping of sir J. F. or the willidniw-
ing of the witness, and the convicting of air J»
F. ? Here they let Goodman (such a rake) W
abi.ut and he is jjone ; and now the fate of tbj
government seeius to depend upon it. To*
1)recedent on the other side is not so much H
>e feared ; for I supiK)se future govenuii«JI
will take care uot to let a witness go aboaltM
streets again : But it may happen that certn*.
men, for asserting the liberties of tlieuroHUlVi
>l}
upon a Bill of Attainder »
h^ttm upofi by ill govertimeoU) ;>Qtl at*
iti IBlde U|jon their lives hy iiilse vvitnessi?*.
, the btil of treason proviifes, that no person
nil b«4>roiseciJteiJ wjlboui two u iinesses. Now
iiappeo, that they shall hare no such
i BS can coti^itice a jury (1 belic'?e this
ftD to be as much guilty^ in my 01% n thought,
1 beheve any ihiug^ in the world ^ and yet 1
ill coodetiin no muiiUjioti my primate lancies) ;
here are two nitnesscs brnu^jht belbre the
^ jury, ant) nathiti^ ir. so easy as to get a
~iiti hy thtini (ami that m all tiiat is iJooe
jmaii). Nasv »ay »b*;yi if this should
ae before a jvetit jury, one of tliese witnesses
> not be creiliteil ; m they will carry bim
|ud ttrge this for a ^recedeat,aniJ HQ this
iy be convicted.
fr. Smith. I think we are come to the dc^
of the bil^ iti^te:)d of reading- the paper,
lie quevurtdt VV hether this paper sbuidil
ic<i as a 5t.x«nd witness? Then it wiiuhl
iftfitrealqirestiou wiiK me, whether it should
he read ; but the tjuestiau, as to Col. S^^idoey^
i not whether the paper shouKl be reatd, but
bet her a should supply the place cfa second
I? But your debute is extraordinary ;
I takes 4iotice of Goodman heiogf t^ooe
Ififl now you wonH take notice of what
behind him ; which 1 should the
llfttititied m, because [ saw a gentle-
dlidtiug at the bar, tlmt did eodeni out-
let him away\ If Giwdman had Iteeu
pttght a prisoner to the bar, I do not know,
keUiPr it tnight tiot have hetn reckoned as
at a ftinii, aa now his havininf too much
erty. Il haih been citfd m a great luwyer-s
lioiotit that it nughi be given in evideiitt ;
^ he docii out »ay what weif^ht btmii be laid
m It.
Mr. Pel hum, I arei sorry that hononrohle
uU nri>iiook me so much ; I thoui^ht I had
l^ke very plain ; 1 toUl you, I vvu» lutt against
iing of the pjijier, till the leurued ^ent.
|it vou, yott were not lied U|f as the courb
VVrfttiuiU6ter-bail to two witnesses. As to
at I said of Mr. ^idoey^s ca^ie, it wns not
iinst the reading: that paper; but I mul he
I rely upon it as at^aiuiit commoo justice^ to
bauainted u[»on oue witne;*!^: .^^nd that at-
jider you have thought tit to reverse ; and
reason he gives jor it was, because it was
sibible for a man to make any detenec
BTUst one sin^;le uitness.
lit. Gin. The matter yoti are now debating
[i» iM, U betber these putters should be now
kd f And {rentkmen have let themselves into
debate to reign lo the questiotu A great
toy art' ai;aitji»t it upon this argument^ that
would uoi W ul' opinion to condemn hiin,
is there v* ere two witnesses: That ib not
} questiODi lor \ thiuk no man is ready to give
\ t*piiiion to cioidentn or aequit him, unless
\. i%ei« two w itae«>ses ; One gentleman i^i
I the re»4iintr of it, und yet bilicves ^ir J.
J must respite my j*olfcriuent till 1
itud his df^tence : I tliinU that tlie coun*
■ J. Jr\ at tht\ h^r* nrt; very much ws-
taken, when they siid^ that such a thing' as an
examinalioQ in writing was never read in any
court of justice. 1 tnink that is a great mia-
lake, and a good authority hath been cited tor
it ; and every one knows the practice is other-
wise; il is often allowed, that the examina-
tions before a justice of peace are read. Tlie
question h now, Whether the examination shaft
be read .^ If there do not appear another wit-
ness to prove hmi s^uilty, you will debate that
matter itietif Whether \ou will condemn him
without two witness«*s^ You might as weH
have debated betore whether Porter should b«s
examineif, because no man will condemn bind
without two witnesses, and therefore do not
examine one, W by, we know not what further
witnesses may be produced, if sir ,K F. was
upon his triril ; 1 think this information nugbl%
have been adinittetl for proof, if Goodman \\i
out of the way ; but if it was admitted, unlcst]
there was another ^vitness produced, 1 betievtl
the court will ttll the jury, here ai^e not tw<|j
witnesses, ami therefore you must acquit him. •
8ir \Vm. Coriftim. \ must crave leave to dil* 1
fer from thai worthy geoileman : 1 Ibink fhi»mj
the proper titue t<> de terra in e, whether tliis eri* f
dence is to lie rtdiiiiited attprvvards ^ Indee^j
you may determio*^ how far it is available, I j
thought liolh in law and justice, hctbre I cam# ]
into the f loose, that ihi^ ougbt not lo he admit* j
tetl for evidence. A gentleman groiiudeil hit J
arLfument, upon what? My L, C.J. Halcs'tj
opiuiyn : but I be fact is, that my L. C. Jij
Hales state^ iheditference in cases of treasooi J
and in cases of felony. Now in felony, they ^
make use of depoijitions ; and the reiisoit is^
because it is more lor the advantage of iho j
prisoner lh;m hi» disadvaniage ; for if th^,|
witiii^^ diBer tTOru his exnmin:ilion before th^ 1
jiisiice of peace, that turns to the advantage of]
the prisoner. In thu nature of the thing it-^
i>eems not to be reasonable, for it i^i easy to J
turn the tubles. Am\ suppose Goodman itI
the place of sir J, F., and sir J. F. in the place I
of Gondmau ; it would be hard, take the in^
formations to be as they are, to admit tbem for
evidence ; which, in my opinion, arc great re*
tlectious upon persons of great honour an4
worih.
8ir CA. MusgfitTc, That which t pcrceiva '
Id be your debate, is that upon which tbd
eounspf withdrew ; y cm bear it asijcrtcd, th^t '
there was Jio instance in a criminal cnsc^ whero
an a^davit was allowed for evidcurc ; and I
think the learned coun^iel at the bar did no( '
much insist upon it; and yet 1 don't think theyt
were ignorant of the case quoted out of my L,
C\ J. Hales, but they ihought it wasnotapplM
Ciiblc to this business befuivthe liou&e ; but
only relateil to felonies, and when deposition^
were taken in the presence of the partv. It
is said, we are not lied up lo the rules nf \Ve«lJ
minsttr-hall ; and that parliameuls may deu<»« I
minate crimi^s alter they are coinniiltcd -, but 1» J
never did hear, that the parliament diil take
upon them to dcteimtue that. to be evidcuta
which is iiut^^^idcncc ia say court iu iha
6BS] 8 WILLIAM III. Proceet&fi agamst Sir JoknFenwiekt [601
mMM^ girmg tbem mort tbu it mheA b«re ;
for bm cfn be DO quertioa, bill w to lbs
foTTDB cf fnt&edmgB, The qoeaiiMi b not
■ponb»criin«,thctnnoq«eiliMi; iiull tika
it, Ibat if Dptn any oceuioa, it is to be jmliiiJ
m tlib, end the law balb trasted tbe parttamenl
with a greater power tbaa now tbey are abom
to execute, and there are only objection to it
raited from another place, wbieb 1 tbhdi cu
net er conclude in tbia.
Mr. Ckanc, of the Exchequer. I an fiir
reading of this juper, tboui^ I do nollbinfc il
evidence ffjnivalent with viva voce; nor do I
think, that in like cases it ought to be admitted
below ; but I think, in your prooeedinpi ii
parliament, it ooglit to be read, whether it W
an affidavit or not ; and I am more of thai op-
nion, from what happened in a case to^r.
We had a dispute, whether Porter was to be
examined, because tbe testimony ef a mis'i
wife was not good below. But when tbit
came to be examined, it was not tbe testisHoy
of a man's wife, Imt his own letter appetnd
in evidence ; and Clancy tokl Pdrler he csBt
from Fenwick himself, and therefore tbecri-
dence, which at first, for that reason, wasogMl
not to be heard, did amoimt to nu»e wbmil
came to the proof. I would have this popv
read ; not bc^ose it should supply llie pMi
of a witness ; no, but because yon see be bitb
been indictoil by the evidence or Qoodmaa aal
Porter, and tbe first is withdrawn ; and bf
whose means you have heard: and I wmh
know, whether Goodman'sevidencedid amsoil
to accuse him of the same? 1 do say, in your
power of jurlf^ing, you arc not conetraioed Is
the rules of We«tminster-hall: and 1 would
say, that for your constitution, the courts nf
ncstminster-irall are to be governed by ihs
letter of tbe law : but there is lodged in the
l<*gislative a power to judge those crimes tbit
are sheltered behind the law : and I believe,
if the several attainders were examined, there
was never any attainder that went upon a more
jost proGee<lirig than this. I take the criuie to
be a plot with your enemies to bring ia a
foreign power ; and as if that was not safi-
cient, he hath made a false and scandalooi
confession, to brine a distrust and jeahNUf
amonflf the king and his people ; and he badi
dallied and gained so much time, as he bath
had opportunity to coiTtii>t one of the wit-
nesses ; and therefore it woukl l>e haid, if no
law shouM reach him. It is said, why did
not you keep the witness? It would be baii,
after a perwHi hath made a confession for lbs
good of the kingdom, that he shouM be alws^f
kept in irons. We ore debating of tbe biN,
while we are now only purely to see what ii ia
this paper. I should not have offered to bssi
made use of this as a second witness ; but tfct
being an affidavit or not, is not material in thil
point ; the commons proceed upon impeafb*
mcnts without afiiihiviis. It is offered as m^
dence : tliat Goodman was a witness agaM
him (you hare had proof of) ; and that bt Mb
beam tampered with lo wkbdimwi by M
If yoa md this pap^ ^ inlbrm vonr«
) yaaadnil tbatto be evidence which is
^ wbm daa to be admilted. Yoa are told,
yott aie Ml tied to the forMs of mferkw courts
of.kwDM equity: If you are aoc bound by
ibeai, you are bound by your own constitulioaa.
Yon are laid, yon are used to read affidavits in
coflMBOBcaiisea; bvtif my memory serves me
right, you have always had it oppMed in this
boose; therefore I think, according to the
roles of your own house, we shall not reail affi-
davits. Will yon make a new rule in this case ?
Piray consider the coDsequence of it hereafto.
JSupposo there came dmvn afUdavits upon ano-
ther person, against a great man for high-trea-
son, whether that may not be thought sufficient
for to govern your judgments ? I hope thoee
that hear me will have a care of the matter.
Why, by tlie parity of reason, may not two
affidavits do by tiie help of the legislative
power ? I would be glad, to know, it bother in
the case of an impeachment, they ever heard
of affidavits being read? And this is much in
that nature ; and therefore, why should you
admit of an affidavit now, when the party
chai^^ was not present when tiiat afMavit
was taken ?
Sir Jotepk WUliamson. I am sorry this point
eosta us so much time ; the gentleman that
apake last hath brought us lo thequestion,<how
far you will admit this aflidavit, as they call it,
lo be rend ? I am of opinion, notwithstanding
all that batli been suggested, that it not oniy
may be read, but thai it ought to be read.
"Sone of the cases that have been instanced,
comes up to the case in question; all the
cases that are brought arc from inferior courts,
and the last that is brought is from the examide
and usage, in less considerable cases, and in-
deed of a different nature. — ^I'his bill of at-
tainder is indeed a thing so extraordinary, as
hath been said, as it never ought to be used
but upon extraordinary occasions ; and upon
that principle, all that is feared is all an-
swend and avoideil. It is to be thought never
to come but upon the like occasion ; and then
God forbid but they should be governed by the
like precedent; and if that was proper to
speak now, which will be at the bottom of
h, when we come to give jndgraent, and we
bare time to ccasider of it, 1 can't think we
•ball differ in many voices. Whether it be
evidence, and how far it is so, is not now
tfie qnesticn ; Init the question is only whether
it be snch an evidence as onght to be read ?
And all the inoonveniencies tliat have been al-
ledged, depend only ufion this, that it should
not be admitted in the ordinary proceedings in
the courts of justice. Now 1 say, there was a
power lodged in the parliament of England to
make a man guilty m treason, that was not so
before ; and that even in a reign when they
caane to determine what ti'easuns were : they
did not think it for tbe safety of the community
•f mankind, bat th^ there shoiiM be a power
Mged in tlie whole, to declare tliat to be a
caaci that was no crioN befere U was cmio
»]
lipon a Bill ofAUdndBT.
A. D. 1696.
[ti06
iendt of tbii scDdcnum. I do think we have
me more fhiriy and eqaally to work, than
iMi aay «f the icconk of attainder Id your
uraale.
Mr. BrvlktrUm. The qiiettion is, whether
IB paper ebaU be read? First, it hath not
BCD proved before whom it was taken, nor
Dthing at all. It hath been oUected, that
wre oof^ to be two witnesses by the late
latnte. But I mnet put you in mind, that it
raeao by the statute of £dw. 6. and so was
be oommoii-law before ; and my lord Coke
ays, then must be two witnesses, and they
nnqi^facetofSawe: and so goes to the divine
IV ; and if it should not be so, I will put you
nouad of an inconveniency : eleven witnesses
wire produced before the ffrand jury; and
when they came to give evi&nce face to face,
bcibrs the petit jury, the first witness did not
IwMr the criminal that he had sworn against.
hwss in tlie case of sir Rowland Stanley.
Tbey mention a paper against Algernon Sid-
icjr; bat that papor was wrote by himself. It
if 1^ this House is not bound by the rules of
criwr courts ; for that reason they ought to
gire rules for other touvts. Nothing is more
OBBon than to say, judgment was so in the
Boose of Lords^ and that settles the law in other
nam beYow.
Sr Godfrey CapUy, Several gentlemen have
ipoke to the reading this paper ; some have
^ that it slunild m read as evidence : some
>mi are for reading of this paper ; but yet
tt Ike saoM time tell ns, it is not to be looked
1^ as evidence, at least not equivalent to a
^itoesB. If the paper be to be read at all, J
»ould know for wliat reason ? If it he to have
aj sway upon our judgment, if it hath any
Seet npoo my judgment, then in some measure
t is equivalent to a witness, when it is in the
store of a witness ; and if it should be read to
apply the defect of •a witness, then I wouM
DOW, what the conse<|oence of this might be ?
do very well understand, that the court cf
idiameot does take no precedent from West-
linster-hall ; nor am I alraid of any prece-
ent they should give to Westminster- hall :
Bt I an afraid of a precedent to future par-
imeols. Suppose the information of sir J.
Mwick, that hath been delivered in here,
benM be prodnced as evideuce against any of
wse honourable persons that are chargedi in
:, thoogli 1 believe tbey are very innocent ;
nd some knaves or rascals in future reigns
bsoM come in against tbcin, and this paper
bsold be brought to supply another witoess,
that a eonsemieoce wonid that be !
Vtt Onry HahmH. 1 must differ with the
pMlemaBthat spake last; as to the gentle-
Ma that ipake before, I dkl not expect any
thing to be quoted out of Lancashire against
Ibeifdingot it. I will tell you why 1 think
1^ paper should be read ; ymi have it sug-
Mad in the bill, that Goodman was one of
^ ovideace asainit sh- J. F. ; they are to
and this will
cvkieaoe. Yon
>bi evidence against sh- J. F. ;
■J*e good the mggcalioBs, ar
*>Vi that Oiiodnm was «b cvk
are told the danger of tlie praoedeni, ndthm
may come ill reigns, and ill partianscnts; as to
that, I diail only say, in a good reign, and a
^(ood |>arliarocnt, there is no danger ; and man
ill reign, and ill parliament, tliey will maka
precedents witliout your giving ot them. Afr.
St. John tells yon in his arguments. It is trae
inferk>r courts, by the statute of £dw. 6, tfaey^
are bound by two evidences vkca voces but
you are not prescribed by tliat here, but yon are
to judge in your own oonsciences as the thisi|f
appears. I may say as auotber did upon ano-
ther occasion, let it be read ; * Valeat ^uaotua
* valere potest.'
Sir Marmaduke Wyvell, 1 desire to take
notice of one argument that hath been made
use of by one or two honourable persons ;
which is, that tbey tell us, that Goodman hath
been tampered with by sir J. Fenwick : 1 re-
member no such thing that hath been piored ;
but indeed it was said, that Mr. Dightaa offer-
ed Air. Roe 100/. a year to invalidate Mr.
Goodman's testimony.
Lord Cattkton. Let me ask yon this ques-
tion. Whether if you read this affidavit, yon
read it as evidence.^
Mr. SoUcilor General, I desire yon would
consider what you did, before you ordered
copt. Porter to go on with his evidence, and
did agree you would consider of it afterwards.
Some are for reading this paper, and others
are indifferent whether it be read or no ; and
those that are against reading of it, are against
reading of it bemuse it is no evidence; but that
is no reason why 3'ou should not read it ; for
it is at most hut doing a vain thing. I thmk
you have been told already if it was insisted
on below, it most be read ; and the other tide
roust demur. The court might say, it is noi
materia], but it must be read before they cam
demur : so that the question, Whether it n
evidence ? must come afterwards; and if yoa
go according to the rigour of law, with submis*
sion, it most be read.
Mr. Price, I did not design to trouble yna
in this matter : but the doctrine laid down by
some men of our gown, surpriaes roe : it u
only an argument, Uiat tlie court below ought
to admit this paper to be read ; but there is no
precedent shewed, nor convincing reason given,
why the courts should admit it. The qoestinn
is, ^Vhether an information taken before no-
tice of peace, ought to be read here ? If it be
to introduce a new law, and make a new crime,
then you make a new sort of evidence ; bat if
this be a crime against an act of pariiament, or
law in being, then you must take the evklenee
the law doth afford yon, iu the nature of tfaa
crime. The charge here is a charge of Irea^n
against a known law : but the great arguineal
is, this is an extraordinary offence ; that sir J,
Fenwick, or his lady, had a hand in sending
Gooflman away : it is a mistake ; and offermg
one thing that in ni>t evidence, bringa us to
another ; the evidence of Clancy's tampering
witli him : captain Porter does not say, that sir
J. F. employed him ; only that Clancy sMd so»
607]
8 WILLIAM III. Proceedings against Sir JoM fentoick^ ffiOl
which ift hut a hearsay, and that is no etidence,
unless Clancy iras at the bar, and would say
it. In tlie next place, it is said, That there
was a tamperinfl^ by a solicitnr : what is that ?
Is it not naturalfor a solicitor to say, Is there
any objections to such a witness? Is it not
natural for him to lessen his reputation if he
can? Now you would have a copy of an in-
formation to be evidence. It is said it is tanta-
mount: if so, then the courts of Westminster
ought to intermeddle with it, and not this
house. A noble lord mentioned to you the
law of nature, the law of nations, and the law
of God ; but he forgot one law, which was
most ihaterial, and that is martial law ; which
if he had said, does justify the fnkin^ away a
man*s life u^nm extraordinary evideucc, he had
said right
Mr. Speaker, Tlie question is this, That the
information of Cordel Goodman, taken upon
oath, S4th of April, 1695, be read.
Which question being put, the house divid-
ed. Yeas, 218. Noes, 145. So it passed in
the affirmative; and sir John Kemvick, aud
tlic counsel and solicitors on both sides, were
called in again.
Mr. Speaker, Gentlemen, since you with-
drew, the house have considered of the matter
upon whfcli you did withdraw, and they lia%-e
thought tit, that the information of Cordtl
CSoodman, taken upon oath bcibre Mr. Vernon,
aith of April, 1690, be read.— -Clerk, read it.
Clerk of the House of Commons reads.
This is signed, Cordel Gomlman, and sworn
24th of April, 1696, before James Vernon.
" About two years since, i»r belter, I umlor-
stood col. Parker was resident here, in ontiT to
engage several people for the ber\ ice of king
James ; and capt. Porter told me, lie liati a
mind to see me, which he accor(!iun:Iy did
and a roll to march, to rendezToat a^n occa
sion ; and indeed I did not much press it, be
cause I did gather there were a ^freat nani
concerned ; aud at this time capt. Porter and i
took a house in the Chase, with stables am
barns, tit for holding horses, and as a fit place
to meet, upon orders given us to mardv, wfaicfa
were then daily expected.
*' Some time after this col. Parker was takes,
and being committed to the Tower, he niKfe
his escape ; and at)er that I saw him, and thco
he toM me, he would be sure to cormpood
with me and Porter ; and I should receive bis
letters of Mr. Cbamock or Mr. Johnson, and be
accordingly did; and in his letters he still t^n
us hopes, and said, he would certamly send n
notice to be in readiness lime enuuij^b, to be
serviceable to the design of the invaiuou.
«* The last letters I received fn»m Pirkfr
gave me advice. That he doubted not, but the
cause would come to a hearing at this Eaitrr
term ; and he should write no more, bnt bring
the orilers hiuiself : Upon which I ^tuA to
Charuock, and he told me he did expect bini
here in a short time: But always, or dhkI
commonly, in his letters, he told me, ftr a
sign, That when the Toulon fleet should job
the Brest fleet, I mtscht certainly depend, diat
we should be invaded here.
** During tlicse transactions, capt. PMfr
com;dained, that something he was sendionf tb
I^ncashire had miscarried ; he desired me Ik
set by two boxes, which I lookeil not into, but
supposed them to he arms, and I did scttbem
hy tor him : I had not hoiin^ht any arm«, bnt
luid li(*Rpoko some of one Perry, a c^'UDsmitb,
Mho said, I should liuve them at a wifL»
wariiiiii*".
** After Parker's having made his escsp*.
and gotling into France, l^Ir. Charnock ctm*
to me, some time hefore the king's fl^oinj ti
FLindors, and said, he had sometliing to pro-
where he told me, there would be an iuvasion, I nose to nic ; and dosirf»d me to ijo alon«jf wilfc
him, which 1 diil ; and he brought me to ooe
to^'it he had commission to levy men, and j iMi*. Waugh, who said, he expecitMl a r<»mini<'
.nt out subordinate commissions fur a iv;j[i- | simi from kinqf Jani's to seize kinjr ^Viinam;
:icci)ri!iug!y wc went to the Chocolate Hon*
ill Si. James's stn?et; and after some discoorte
and king James would he restored ; and that in
order • • • ■
to grant
ment of horse, and did ask if I would at'ccjit
of one, which 1 acconlingly did. lie likcui>e
8aid> he would see me as often as he could ; , abour the coniniission he said he expected, ^
ajtpoitited another meeting at that place, ta^
aiijourned from thence to my house in Brown-
low street, whore was present, Mr. Charnock.
Mr. I'orter, Mr. \Vani;h, nnjor Matthewi.
and Mr. l)oiiela«rh. The subject of oar di^
course, was, about the snrpri/in2r and mUB^
, --.^^.--, ,, — , the kin^, as ho came from Richmond; iij
WilheringUui, to be lieutenant | after tevcral ways proposed to that pnqioie^l
I particularly asked, <{uppose that the king wen
in our power, what then ? For we ougbt •
have regard to some euil or other in such •
underiakitii* ; for 1 was not willing to offer ifl
thing to his person. Mr. Waiigh sakly •^
might have a coac!], and convey him Mfl^>
and he said, he was assured of a fort to tew>^
livercfi to him, and put into his hands (f^^^.
best of my reniemlirance it ivaa Det!)* wH*
miglit give us shellcr tUl we might find upp<*
and that capt. Porter and I should recuivc di
r«H;tions from him, from time to time, upon
several meetings; and having received my
commission, I understood wiial captains were
to be in the n'giment ; which were captain
Porter, sir U illiani Parky ns, Mr. Chariiock,
sir Hugh Smilhson, Mr. ilig^ens, and myself;
and one Mr
colonel.
*' The commissions were to be blank when
they were to be delivered, and to be filled up
by the captains, ^Vc. I then came acquainted
With Mr. Charnock and sir >V . l*drKyns ; and
by them and Parker, capt. Porter anrl I were
informed, that there was a great body of horse
to be ready in the norlh ; but thou^rh 1 asked,
yet they never named any persons to me, but
said, it was sufficient, 1 should receive orders,
upon a BiU of Attainder.
0 carrj him ioto Fruce by shipping.
confcaft, I did see very little probability
: he Saul ; neither did I believe that he
Boeive aDV such commission, as he said
«led: (For about two years since, I
er I saw sir George Barcley, with col.
D, and Mr. Porter ; sir George was then
rer to Franoe, and it was the only time
r f saw him ; and then captain Porter
lid desire, that if king James desired
:h thing as seizing kmg William, he
end over, a comipission, and a panlon
a case of an accident ; which message
ge carried over, and king James reins-
lend it.). However, we had another
' after that at my house, by which
! sai«l, he would shew us tlie commis-
id facilitate the design; it was at a
ehind the Temple, where the aforesaid
y met, and Mr. Waugb brought with
1 Mr. Hays, who, he said, could fUr-
with a ship which would be ready to
t ns after we had seized the king ; but
icourse with Mr. Hays we found that
jauds were so exorbitant, and not in
ly of being complied withal ; aud be-
> order nor commission being produced,
desist then; for captain Porter and
f atthews, and I, did declare, we would
Idle without sight of the commission.
is capt. Porter and I talked of having a
ind sending Le Rue and Cbarnock
We met at the Fountain bv the.
Gate, and sir W . Parkyns was there ;
ing the time of our being there, one
ir William out, and sir William called
er, who came in, and said, there was a
ail that could help us in this affair;
was I know not ; 1 believe captain
nay, for I saw him not : But all this
if'/icctual, for the king went away sud-
Jid no commission ever came. And
rs from France, I understood king
ras angry tliat they used his name to
had not promised ; and Porter and 1
rer, by his order, the truth of tlie whole
ne time after this, captain Porter, the
iylesbury, sir John Freind, sir Wm.
I, and sir J. Fen wick, and others, met
ending over some pro|M)sals to king
to expedite an invasion ; and likewise
Porter said, it was proper 1 should be
4- he had engaged for me. I tuid him
I come ; and at the King's- Head in
lall-street, 1 found the pei-sons above-
together with my lord Montgomery,
Mr. Cook.
e effect of their consultation was, the
Mr. Chamock with a message to this
; that if the king of France could spare
umber of foot, and so many dragoons,
ng to about 12 or 15,000, or there-
I all, that then a|Mn notice given, that
irtieular man there was to furnish such
ff of hone, some more, somefess, to
f to socGour tlie forces from Prance
Xfll.
A.D. 1606.
[610
when landed. Mr. Chamock went and re-
turned with, a refusal, that forces could not be
spared : sir John Freind and my lord Aylesbury
were of opinion, that if king James would Ten-
ture hither with some small retinue, he had
friends enough to appear for him, without any
foreign forces ; but that was held in doubt.
" 1 use<l afterwards to see my lord Ayles<>
bury ; T always asked, what news he heard ?
He said, when he received any orders, be
should know ; for he having been in France
([as he did not deny) I supposed him not to be
ignorant of what was intendeJ.
" And to the better facilitating an invasion,
sir J. Fenwick useil to send over a list of the
forces, and how they were quartered, and what
were in garrison, and what otherways disposed
of: be having made a mistake in the account,
Parker did by letter desire me to try if 1 could
procure such an account ; which t accordingly
did of one Gibson, a clerk in the office, and
sent it over frequently.
** After the escape of Parker out of the
Tower, sir J. Fenwick, when I asked him how
he got away, and how much money was given 'f
he said, 200/. promised, and 300/. given ; for
when a person came in and told him ho had
brought him liberty, aud M'as to have SoO/. he
replieil. You shall have 300/. and it was made
good to him afterwards.
" CoRDEL Goodman."
** Much abont the same time, I used now
and then, with captain Porter, to be with sir
John Fenwick, and it was agret^d, that if Parker
should not bring us timely ordet^, that what
forces we c«)nld brin{j in, (viz. Porter and I)
we were to take orders from sir John Fenwick ;
this we offered him, and he kindly accepted :
and then he said, that he believed most of
my lord Oxford's regiment would go to king
James; when 1 told Mr. Paradise had pro-
mised to bring in seven or eight to me, aud that
Mr. Aynsworth was to bring in twenty, and
Parker had said, if I made it thirty, it was suffi-
cient for me. As to the keeping the horses, sir
John said, it was dangerous, and they would
certainly be seized ; but the best way was to
have a list of what horses were in and about
the London stables. Captain Pbrter and I sent
accordingly to view the stables. 1 sent Mr.
Reyhough, and Captain Porter sent Cran*
bom, and they took an account
«* CoRDEL Goodman."
Jurat. 24 April, 169G.
Coram me, J a. Vernon.
8erj. Gould, Now, Mr. Speaker, if you
please, we will call some of the grand jury that
will give you an account what evidence they
found the hill uiran. — Mr. Graced ne, you were
one of tb(.' iti-aml jury that found this bill?
Graciiitt. Yes, 8ir.
Sir T. I'oTij/s. This is so far from being evi-
dence, that I think it is the oath of tlie grand
jury, that they shall not disclose or discover
the king's secrets. The bill of indictment is
hut an accusation. A bill of indictment cannot
8 WILLIAM IIL
611]
be gfiTeD 10 e? idenoe against a man for the leait
crime aoever. it cannot be gifen-in endenoe
to he credited, brcaase it it but an accusation ;
and by consequence, whatever any witness
says at that time can go no farther. When a
pereon comes upon bis trial, they cannot so
much as resort to any thing Uiat is sworn be*
fare the grand jury, nor make use of it.
8ir B. Shower, We humbly oppose this evi-
denoe ; because the gentlemen can give no in-
stance in their reading or observation, that the
tostimooy that hath been giren before a grand-
jurv, bath been giren in evidence to a petit jury :
and it is part of the oath of a grand juryman,
that it should not be disclosed. We do not say,
it will bind your House ; but I hope it will be
evidence to you, that it is not agreeable to the
rules of law.
Membert, Go on, go on.
Mr. Speaker, Mr. Gracedue, will you give
the House an account, who were the witnesses
before you upon finding the bill P
Graccdne, The witnesses before us Mxre
captain Porter and Mr. Goodman.
Mr. Speaker, Can yon remember so well, as
to giie an account to this House of what eri-
dence Mr. Goodman gave ?
Gracedue, Yes, I think I can. When he
came before us, he told us, that he was at a
raeetiug at the King's head in Leadenball
street, where there was sir J. iVnwick, my
lord Montgomery, capt. Porter, Mr. Chamock
and otiiers ; and the business was to send Mr.
Cbamock over to France, to procure men lo
invade thiH kingdom ; and 8,000 foot, and 2,000
horse was pro{)osed. Ifo told us, the result of
that consult was, that if France would supply
8,000 loot and 3,000 horse, it would be a su(H-
cient power to come over ; and that they would
supply 2,000 horse oiuong themselves. Upon
which Charnock replied, gentlemen, you send
meovcrnpon uucertainiies; you say, you wil! _
supply 2,UU0 horse; but uuicss you give me- Cook: that is not admitted in the courts beknr;
fur according lo that method, the tiiul of one is
lilt} company woiihl l>e the tiial of ail the rest.
This wsLS ueVer allowed in any other case, tsil
I hope you will notallow it Itctv.
8ir B.Hfiou^cr, The indictment is, that they diJ
consult together, but their crimes arc several ;
Proceedings against Sir John Femmck^ [613
street ; and Cbaraock and the icat Ikcra dki
consult how to bring ia their oM wstcr ; aate
Chamock, that they agieed to send him ever
to king James, to know whether the FVaaeh
kingcouM fnmbh then witfi 8/Xiefcotaed
3,000 horse, and that they woaM eiidaavoiir to
meet him with S,000 horse. Hereupon Cbar-
nock (Goodman said) put it Ce eveiy nan sf
them, to know if they were ell of one wiad ?
And they all said they were. This he did
prove, and this ia alll oan rememb^.
Seij. LoveL We have many more to the
same purpose, if the House thidk fit to hnr
them. — Members. No, no.
Serf. Got£/(f. We will go tbu» mueh further ;
that u^ the trial of Mr. Cook, wheren there
was evidence given bv this gentlenMn, and is
that this gentleman tnat is uie prisoner at (he
bar was particulariy named to be oOBeerad,
we will call them that were present there at the
giving of the evidence : but first, we desire tt
read the record of Cook's conviction
Thereupon amotion was made for the coowl
to withdraw ; and being witlidrawn , a molioB wm
made f brcandles, which passed in the affinmlife
without a division, in regard it being daik with-
out candles, there could be no motion madeftr.
adjourning the debate, or remanding the pi-
sonei'.
Afterwanls a motion being made for adjem-
ing tlie HoiMe till to morrow morning, the
house divided. Ayes, 141. Noes, 103. Aid
so it passed in the ne«;;ative ; and sir J. Fci-
wick, and the couiir^el and solicitors, woe
bronglit in again to thfibar.
Mr. Speaker. ]\ir. Seijrant Gould, the hit
evidence you were ahom to offer was, thatef
the record of Mr. Cook.
Sir r. Poni/s, Mr. Speaker, wcoppoðit
l»ein;;^ o^ur€^d iiscvidcnec; as I understand il.
ihey are going to give in evidence against ar
John Fenwick what was sworn against 3lr.
some assurance, i cannot, nor will I go. And
tlie question was proposed to all of them, if
they would make good their proportion ; and
tliey prouiiswl sinirly. Wuys I, did sir J. Feii-
wick promise? And he sM, Yes. Says I,
did my loid 3]oni!xnme) y ? And he said,* Yes. . ^>. , .,- , — -
lie was atiked, who eUu ? But, says he, it is if they had l>een meutioni*d in one indictment,
not a question for you to ask us; and tor that i and one hail been tried at one time, and the
lie referred himself to me : lor, he said, he was | other at anothei% it would not have been allowed
not bound to answer further, having proved the j that they should gi\e in evidence agaiastdie
indictment . | one, what had been sworn against the other ;
Serj. Luvei. Wc desire Mr. Joshua Meade | for though their charge is by the same witim
may be asketl to tho like purpose. Were you ' and lor a fact done at the'samc time, yef the
Against sir I defence of the parties may be different ; and it
one of the jury that found the hill against
Jolm Fen wick r—iVr«f/€*. Yes.
Mr. Speaker. I*ray, who were the witnsses
before you upon findingof the Bill 1'
Mtade. There was captain Porter, and Mr.
Goodnian, Sir.
Mr. Speaker. Can you remember what Mr.
GoedmiMi lestitird then ?
Hieude. Mr. Goodman did then testify, that
air John Fenwick, my lord Montgomerv, &c.
at the King's Head tavern in Leaifeohall
J parties ^. ,
cannot be ex{iected that Ve, on the belialf ei
sir John Fenwick, are prepared to give aa an-
swer, in resrard of any thing that was swfliB
agninct Mr. (.-ook.
Mr. Speaker. Mr. Serjeant Gould, you hatf
the exf< ption.
Scij. Gwtld. We ho|>e in this case wcshil
go on with our evidence, as offered and ii*"
posed to this House. These gentleroeB Mf«
made their objections, asif they were hehMvii
4
tI3]
upon a BiU ftfAtkiinder*
leiiire/Uir ooorts; but we are here dow befbrp
mi in a parliamentary way ; and what is that
rhich btmga us hcre^ but beoauaetherc is a wit-
cfls wtthHrawn by artifioe, so that we cannot pro-
Ince liiiD ? And tberefora we come, and ham-
ily a|ip1y oiirselres to this honourable House.
Sow, Sir, you are judg^es of the raethoii oF
NMiin^ at the truth, and supplying that defect:
if we conkl produce him, .tMre n-ould be an
end of the matter ; but in this case we are in
ilie judgineut of this honourable house, whe-
ther we ahall not gire sneh evidence as he
kith giren upon his oatli, though in other oases
it iiB(.t admitted?
^. Lavei, When we produce the record of
CBtfictm, we only produced it to shew you
tbeie waa such a tnal ; and by that means to let
la in, to ahcw you what was sworn by Mr.
I at that trial.
Then upon the motion of Col. Granville and
5lrR.Templ6, sir J. Fenwick, and the coun-
sd and solicitors, withdrew.
Sr R. Temple. If I did not believe what is
■MTollfTefl, IS what was never offered before,
aid of dangerous consequence to every one
berei I would not have troubled you at this
tiaeof wilt. There has nothing been offered
lUt this Tiath ever been done. They say, it
iMlh not been done in inferior couns : i>ray,
kt as see if e^-er it hath been done in parlia*
■nt, tliat what was given in evidence at
tudifr trial, should be given in evidence
^pBst aooilier iieraon here, when this penmi
aai not by, and bail no 0|)portnnity to defend
MMdf against it ; 1 am sure it was never done
yet
Kr r. MompeMsoH, This gentleman com-
lins this waa never done. When the duke
«f Moannouth was impeached, the bill wi
nti three times in one day, and that gentli
■ia moved for the impeachment.
ttr R. Tempie. Here were three witnesses
tbn did declare they saw him in actual rebel-
fiia, at the bead of an army ; but I hope 1 am
Mtta aasiver for all the proceedings tnen.
Cel. Crmmville. When I saw them g[oing on
to Biake use of that as evidence, whicli was
■ever allowed in any court, 1 thought 1 ought
ts «ove for them to withdraw. I shall not
five my consent to have it read, until some-
hriy satisfies me it is good evidence against
<iri. Fenwirk. 1 cannot see how you can
I'wt this for evidence: are we to read all
Ike trials that are upon this ploti* therefore
Idenre you will bid them produce what is evi«
^Bsee against sir J. Fenwick, and not to trifle
*idiyud.
Sir r. Litlleion, If you proceed in this
maoacr, 1 know mit when you will havo done.
Tbey do not tell you, they iirodnce this a^ evi-
^Moe against sir'Jiihn Fenwick 4 nor do I take
Ihiitobe the only evklenceto prove him gi'ilty.
tf nocbing but exact proof wouM have satis -
fcd, this SUI wouhl not have been brought in :
btt ihii is to make as good proof as the nature
if iha tUng will bear. You have heard several
A. D. 1696. - [GU
things before, in relation to Gooddaan, that
poasibly might strictly be no more evidence
against sir J. Fenwick than this ; as GihmI-
niairs being withdrawn. First, tliey offered to
prove that he was gone ; that it was suspicious
that sir J. Fenwick was privy to his pnng :
why did you admit the eviilence of what he
said to tlie grand-jury ? What is thL^ but to
give evidence of what he ^id to the petit jury,
wherein the grand -jury and petii-jury have
both believed him?
.^Ir. Harley. I think if you had couie to
one determination before you had entered upott
Ihiti matter, yon had very much shtnlcned
your business ; that is, that ym\ would not ex-
|>ect such proof as is nccediary at law ; and
it may be, if you would come to it now, it
would save you time : for I find bv the coun-
sel, that what is swoni against another man, at
another time, would not be evidence at law
against the prisoner ; anil 1 believe if he should
except to a jury- man, because he was u|Km
Cook's trial, it would not be albwed as a good
exception, and he would be told, he was no way
concerneil in auother*s trial.
Mr. i7o&;r. It is a strange sort of o^idence
that is uflTored lierc, and it is a strange way of
hriniring it in. The lionse made ntithing lately
of hear-say, and yet now hear-say must he
taken fur evidence. I have hcanl that the
grand-jury take au oath not to discover what
wassworu liefbrethem; this, since the grand-
jury have sul^ectcd tliemselves to (yet yon
have brousrhtthem here as witnesses to give an
account of^what was sworn before them, which
I am afraid is a breach of their oath), it shall
make me give less credit to what they say.
We are here to attaint a man, but we must not
talk of proof; that is a strange thing! I am
sure, if y4m do not find it with proof, it wonid
he against proof. Shall 1 be f lain with you f
I question, if this house had heard what Good-
num sworn at that trial, and what was alledged
against it, wliether this house would have been
of that jury's mind : for I have heard that two
or three did swear, he was not at the place at
the time he swoi-e be was, as plain as a negative
could be sworn.
Mr. Harcourt. If you please to kl the
king's counsel go on upon this, yon will save a
great deal of time, and prevent any exception
to any evidence afterwards : for it is not in the
r»wer of roan to offer any thing m<»re absurd,
don't believe that ever any man heard of Kuch
a thing offered, that a recoril should he given in
evidence against a man, that is no manner of
|iarty to the record : 1 am siire never any such
thing was attempted before. As for the other
things, you had something offered that inaile
it seem doubtful how fsr 3'ou should gi\e credit
to them. Upon those matters, tlie counsel at
the bar for tlie king told you, that there waa
some pretence that it was law, and practised
below, and a book was pruflnced to justify it :
but in this case, if there be book, practice, pre-
cedent, or any thing to justify it, 1 will sit
down. The anawer made it ten tiroca worse :
615]
8 WILLIAM IIL Proceedings againgt Sir John Fenwick, [616
the gtentlemui said, he would DOt have the
reconl read, but upon that record to prove what
waa aworn at the trial : why, does that concern
any penon in the world but Cook ?
Lord CuUt, If the worthy geutleman that
spake last had made out all his propositions
with clearness, equal to the assurance with
which he asserted them, they would have more
weigfht: but I will say, that which he hath as-
serted does not ap|»car to me so. I take (his j
to be the same thuig', in some measure, debated
over again. It hath been told you, that this
house are to g-ive their iudf^ment in a matter of
crcat importance ; and then^ore I think it is
lit that all the whole matter should be laid be-
fore them ; when that is done, they only are
the judges of what weight it is.
Mr. Sloane. 1 go along with those gentle-
men, that this is no sort of evidence against sir
J. Fenwick : but our question is about a witness
that is witlidrawn, and to know what ho said,
and how he was believed when he was here.
How he is gone, we have seen already ; snd
therefore thi>u^h I think the venljct against
Cook, nor nothmg of that can he given in evi-
dence again&t sir John Fenwick; yet if lie
bath, withdrawn the witness, and the credit of
him is at stake, as you have heard evidence of
what he said upon oath before the trial came
on, by the same reasou you may hear what
he said at the trial.
Mr. Pelkum, I think it would shorten our
debates, if we were tnily satisfied about what
we are a- doing, that wc are trying sir John
Fenwick, as we aro told at tho bar ; he called
it a trial, and it is a trinl. 1 must (X)nfcss 1 was
in hopes I should never sit in tlm House of
Commons to try any body ; i diil not think it
the business oi' us ; if I imd, I would uot have
come hither : but since we are come into it,
is any thuig nvtre natural, than to examine
whether thi^ » •• ■ '..nr*? be proper, or such evi-
dence asaii\ (^ '■■r v.culd allow of?
Sir If. \Viliia9M. 1 8upi>ose there is no
gentleman of our profession that hath seen any
record, will say, that this jiiith i>een oflered in
any court of law: 1 bfheve, if he was upon
his trial upon the iiiiliirhncut, nobody will
say it «iouid be read against him. Let us con-
sider how many judgments, that have been
given hiistily in the late i-eigns, have lieen re-
versal. What is the reason thnt is given (or
it ? It is for receiving that for evidence, which
was not evidence in the law : Your bill Mi'
right takes notice of it.
Sol. Gen. I did not think this matter would
have held you a quarter of an hour ; but if
gentlemen uill debute u|H)n the same luattpr
that hath been over-ndcil twice More, all that
is to be fn-oved by this record is, that one I'eirr
Cook was attainted for high-tivas'in : if the
counsel on the other side would have owntvl
Peter CiHik to have been attaintei), ynu had
not been troubled to have the reconl brought
to the talde. But as to what they say, that sir
John Fenwick was no party t(» tlie record, and
therefore it can be no erideuoe against him, I
suppose it woald be evidence fbr hind. Sop-
pose Goodman had sworn be never had been
at the Riog's-head- tavern, would not the pri«
'soner have produced a witness to prove whit
he had sworn ? Thcu I wouM put you in miad
of a case, because there is a nicety In this mat-
ter without any reason ; it ivas in the trial of
alderman Cornish ; he was indicted and tried,
and the great fact was in the houee of one
Shephcnl ; there was a witness against him,
one Riimsey, who swore, &c. says Mr. Cor-
nish, lie was a witness at my lord Konel'i
trial, and he did not name me to be one ; io4
it went so for, that when Shepherd said, I wu
in the room ; he stood up and said, No, it va
read before I came in. Air. Cornish wosU
have pro<luced a witness to have proved whtf
Kumscy i^aid : says the court, we canoot id-
mit of* that; tor it d«>es not appear tovi^
that my lord Russel was ever tried for bieli-
trcuson ; and there, upon that slip, wu uit
gentleman destroy ed. 1 pray it may be reod ;
1 huve given no opinion of what force it is, but
I think It depends upon tlie same reatoo ; nay*
you have more reason to do it, than any tbiog
you have read to-day.
Air. Pr/rr. It is \ ery much pressed that jaa
should read that, which, when read, tbey nfi
is not evidence, but only to introduce aaotbcr
matter. If it be uot evidence, upon what ac-
count shall tliey rend it ? But if it introdoet
other evidence, this is an ingredient and part of
that evidence. Now suppose the record sboaM
be produced, and they ijhuuld bring witneca ts
say what <ioo<lmun swore at that trial : imoiiM
that be evidence? No sure, for uolnidy ever pre-
tends that this hntli been admitted either at lanr,
or in {rarlianient. By what law f By whatrole?
B\ *^ hat meastiiT »»f reason are we to proceed
in' this house? It you Mould permit to be pro-
duced a record of conviction against a third
person, and this to be c^klence against onetbat
IS not ])re4ent, I think \ou may as well admit
to be prmluced a record of the conviction €f
any other conccrnpd in the assassination. Bat
I stood up principally upon the obServatioa
made at the bar, and he put you that wbicb he
takes 1o be a sinister case ; tor. sa} a be, sup-
]rose sir John Fenwick had brought this record,
and made use of it to take off Goodmau*s testi-
mony, shouhl it not bo evidence i* Yei, po
doubt <»f it ; and there is the disiiuction. It i<
one thing, where you are to give in areconlto
ciinvict and attaint a person, and another thin^i
where it is to prove a man prijured, sod la
invalidate his testimony ; for when eridence n
brougiit against a prisoner, he hath no wajr to
lessen his evidence but what is collateral ; if f^
be upon a trial when another is concerned, if
the witness gave a contrary e«idcuce, or d»
party was ac(piitte<l, then the record niayJv
made use of against the witness : but it difcs
very much, where you biing evidence to lak*
off (he credit of a witness, and where vt>
bring it to convict or attaint a penon. Tb*
case of Cornisli, that turns upon the simefia-
80U, and it was only to be used to take off tb*
ttpow a BUI tj Atiatndcf.
on)f of Rumsey ; but iHliis record of llie
I uf Covk be brought to tiny [»ui|>o5^
it b to saliafy yvnr c^nscieTiccs, ilmt
OoodmaQ nve a good testimony at that trial ;
ftnd I woiiUer the Serjeants should ulff^r it, ivUo
ate 9«iora to ufler nottiing ia viululion of tUe
\ J>r. Oicfkitn^ If I did not tbink ihifi ques-
bfid be^fii deleriidneil More, I should not
DuLde you in Ihts debule ; for did not we re-
i%e w hat Goudtnati depost.'d upon oath beiore
' kistiee uf |}«ace ? Was it read because it was
ken in wfifiDg^f or b4?cau&e it y»^^ his er i-
nee ? Now they otffr you an evidence of biii
Bt was not ]jtit into wriliu"^, hut they witl
|irDve by witness ; what is the difterent-e? If
^1^ had been takeu dow^i in writing-^ it must
Hfeve been mdmitted as the satue was before.
^^i^ M, WyveiL That worthy jfentletnan de-
iir«d to know the difference^ &e. Tb«t dejjo-
•icioii was against sir J«dm Fenwick, but tliin
videtict'y that they oHer now, was ipfcn
aittst Peter Cook.
^Ait. Gtn, Yon are now upon a debate, Whc*
you fchatl read the conviction of Peier
ok : I do iitjree with those gentlemen ihai
kve spoke of liiis palter, that the conviction
f Cook, nor any ef jdence U|Kni hi-^ conviction,
can btr evidence aj>iiinst sir John Fenwick. I
do not pretenil that this 15 ; nor do not believe
lliat this is offfred upon any i^iich considera-
Jpti I but it IS one of the allegations of the bill,
^BBt several of these ^entletnen were present
^B ibis consult, of which sir John Fenwick ts
^Bousfd ; therefore, I suppose, the counsel for
^■e ImU did offer this rectjrd to luake i^ood that
alliii^tiooj and so think it may he properly
u&a&i ! unless it be admitte<l { I do not ^ee
L lie made jrooA^ further ; I do not
proper to examine to what Gooilman
N ' ' ' ' trial.
if tson. I speak only to i>bew
t^tiiii^^t^tj with the attoniey-q^eneraf;
hath stated it right, no douht, as
Action of this person ; as Mr. Atior-
lit, it may he proper enuu|;h,
heri. Calt tbem in, call iheni in,
' C Aihsgravt'. 1 hear gentlemen bay, call
1 10 : Do you intend when you call them
I read thjs record ? 1 think the learned geu-
nan hath stated it, that it ou^ht not to be
ai evidence. Mow the counsel for sir
Fenwick said, they hoped yon wuutd not
' ft to be read as evidence against the pri-
: 1 never heard tbe counsel say, tliat
; was not aitaiuted, nor ever heard that any
I did doubt it ; then if it he no controverBy
^llMM tbe counsel, to ubat end is it brou^t
^^^^S Do you think that the steps that are
^^HBb be taltcn in this esse, will not be a pre-
^t^HL for (fosterity ? 1 take it that there is
■piill deal of ditfereoco between tbe paper you
Kaf« read and this record ; and tberelbrt:, if
jreti call tti the couoseli I hope you wdl uot
■latity I hem in reading oi^ it.
^p Mr. £, HarUy, Betore you call the counsel
»9 1 butnbly propose it to you to consider to
A. D« 1696.
[619
what purpose this record should be read ; if a9 ^
evidence, you overthrow all the coarse of proof I
that is settled by the common law, and statutaJ
law ; ibr it haih been in all trials opposed, t04
^ive in evidence that wbichis improfier, because 1
it shmdd not intluence tlie jury. 1 would not ,
have it said^ that under the reign of king VVi]*J
liam, any thing* was done contrary to the lavr J
and constitution of the nauon. There hatb
been an instance given of the trial of Mr,
Cornish, thoi]|;»h that case doea not come up t(k
it: but we know what was done id lhos« reigusj
hath been justly rededed upon ; and I ho{ia|
you will not make a precedent here, to encou*
ragejudo^es to do what is against law.
ftir. Speaker, Gentlemen, this i» your <
tion, that the record of tbe couvictio'n of Pete
Cook shall be read.
Which question being put» tbe nouie di- *
Tilled. Ayes, 181. Noes, 110, So it passedl
iu the affirmative.
Mr, Speaker, Gentlemen, You have had an«^
other question that hath been tbe subject of 1
debate, That the counsel for the bill be admitti
to give evidence as to what Good in an swore
against Peter Cook.
Mr, R. Harley. Tbe learned gentleman di4>1
tell you, That what Goodman said at tbat-f
trial, ought not to be ffiven in evidence ; and I
tlieretiire, I think, geouemen wonH insist u)»oa j
that, thai is carrying it too far ; and, 1 thinkp j
be opened it| that it was only to (irovc liia^j
Cook nas alrainied, and to make tise of it na^
farther.
Mr, Speaker, Is it then your pleasure, that J
sir Juhu Fenwick and his counsel be called in f <
[Which qiiefition being put, it passed in thaj
allirmative, and accordingly they were calleil |
in.']
Mr. Speaker. Sir Thomas Po wys, tbe bousa I
hath determined to have this* renord read, not i
evidence against sir John Fenwick, but 1
prove the allegations in the hill, aud thai Coo
was attaiuted. Head the Record.
[Accordingly tliat Record was read by th# 1
Clerk.]
Sir B. Shoner. We are sure the Record doe#4
tmt prove that he was convicted u|>on Good*
loan's evidence.
Serj. Lofvel, Look upon tlie indictment.
Sir T. PiJwyi. It appears by that ibat Good* ]
man was a witness upon tbe iiidictmeut ; but i| j
does not prove by that, that he was a witoesal
ii|>on the trial.
Serj. Could. May it please you then, Mr*
S|>eaker, thus far it i» agreed, that here is
record of tbe conviction of Cook ; and it i
agreed, and tbe record speaks it, that Gooilmaiil
was a witness, for it is iodorsed upon ihe in*
dietment. Now the main dispute is, whethq
Goof I man *s evidence did prevail to convict Coq|( I
u{H>D that inthciment ? And lor that we shair
apply ourselves. Call our evidcneej some
Ibejury^ and same tbot were thtrn wlti
62SJ 8 WILLIAM IIL
Collins, To the best of my memorv, I will
Sive tbe best account I can. Goocfman did
epose, that he came to the Kind's- Head in
LouIeDhall- street, and enquired for captain
Porter, ac<'ordin;r as the captain had ordered
him ; and the captain came down and carried
him up into the room where the gentlemen
were. There was sir John Freind, sir Wm.
Parkyns, Mr. IMiaruock, Mr. Cook, and sir J.
Fenwick ; there was two others, if you please
to have me name them.
Members. Yes, yes.
Collins. My lord Aylesbury and my lord
Monti^omery : this was what he deposed.
Mr.Speuktr. Goon, Sir; you have named
those that wore at the meeting.
•Scrj. Lurel. Did he fr'i^e you an account of
what was agreed on at that meeting ?
ColUnt. 1 think it was about sending Char-
nock to France.
Mr. Speaker, Sir, you should repeat all the
particulars, what (.Mmrnock was to do.
Collins. 1 cannot remember any thing fur-
ther than what I hare told you.
Serf. Gould. If you please that Mr. Cooper
may be askeil to this ?
Mr. Speaker. Was you of the petit-jury that
con?ictctl Mr. Cook ? — C^^per. Yes.
Hr. Speaker. C*an you gire tlic House an
account what evidence Goodman gavt^ to\ou
tor conviction of Cook, aud what he s;uil iu tbat
c\ idi'iife ?
CnMtpcr, Mr. (i<KMlman did declare upon his
ovidencf*, that he was nt the Old Kiti;j:'s-llead
ill liradi'iiliull-slrtM't, wlicrc lie ilid meet uiili
Proceedings against Sir John Fenvae]^^ [6£l
had been a meeting of ■everalgentlcmen, ami
that they had made sever»l offers of soldiers
and people that were to lie raised here, and to
acquaint king James with it ; and be dedanni,
that sir John Fenwick was there at the same
time.
Mr. Speaker. Pray, can you give this House
an account of what exception was taken to
Goo<lman's credit, and how ii was ansnered:-*
The same. There was exception taken, tbit
he was guilt)r of a great many crimes, and
tliat he had his pardon ; aud the fines were
levied upon him ; but it was said then, that lie
bad (raid his fine, and that he was a very good
evidence in the case.
Mr. Speaker, Mr. Serjeant Gould, hare you
any other evidence to produce ?
Serj. JjtvrL If you please, Mr. Speaker,
here is Mr. Tauuer, tbe clerk of the arraign-
ments, that best knows the nature of thi-se
things ; that as to these objections tliat were
made, it appeared to the court to be a contriv-
ance, for he was never bailed, but discbary^ed
without any more to do. If you please tliat
he may be asked. What objections were made
to Goodman's reputation, and what answer
was made to it ?
Mr. Speaker, I did ask the inryman tbat;
aud I suppose you need not labour this point,
unless the credit of Goodman comes in qias-
tion here.
Scij. Gould. Then may it please you, Mr.
Spciiker, we have one other piece of evidence
again<tt sir J. Fenwick, which we are humblv
to oiY^r to your ctm^I'leratiun, and 1 think itf^
very maltTial ; aiul it is s(.iiio of the evifltiia'
•lixci-s |M>i'S(iiis that wvvc in cuiiSiihatioit : lie I >v Inch I diil open iu staliii<> ut the* cum.', ulii^-ciu
sir J. I'Viuvick haiii, in a manner, given u \er-
diet ajrainst liinisclt ; liir while sir J. Feimick
was workintc of liis c«^rapc to cjo hoyund sea,
j ai tiiut very lime ihrn* was a lotior wrilteii l»)
! Iiim, (liroi'U'd to hi.<» lady, iind dclivcied intr>
ilio hands of one Mr. I'ow kr, \< ho was to cans*
' ir to he dciivtrcd to hi> Kidv h^ one Webber,
; who wastakon up ulun sir John Fenwick \% as.
I This h'llcr imports, That sir J. Fenwick
> Kii'kod upon himself as having no dtrfence, hiii
! dopLn:!ei] ('nly upon a cunirivancu with itu-
inry ; iliiy Wfio to work with some persons c'
' the jur^ , w ho were to stand it out, and t(» >tarvr
l\w rest ; and so by that means to save him.
; Our evidence of this « ill be, that it fell out
that ^Nrliher (wo ha\e him noi h;rrc n«'W, hut
; h;\ve endeavoured it a>> much as \\.ii pu-^siiile,
I bill he is jjone looonl of the w;i\ ), that he was
taken at the Si:nie time thai Mr .1. Fenwick
; was ; hui by reaMHi ol liie |»roiraclin«»' of sir
I .lohirs tjial, he ci ruts, and i.-^ (!• livereil, there
.' Ikmh;; no eharL;o ;'.i;aii:st hiui ; and he i>, since
I his <ieli\eianc«; np.ui h!> ll.ilicas t 'orpns, ^m?'..*
j ont of the v»My ; hul \si* >hall, iu the nieihe.l
of our eviflerue, proiluec \ou Mr. Fowler, llie
person touhoinihN letter t^as handinl, who
will tr'wv yon iih aeeonut ol this letter ; and
then \\dl produce this letter: to which end,
we inn>i humhU be^ the favour of a worthy
member uf this ilouso, 3ir. Vtrnony who bath
nain(*d riiarnoi'k, sir J. Fenwiek, sir J. rivind,
and diu*rs others.
Mr. Spi'ukcr. What was the eonsnltation ?
i\lr. i'lHtiJtr. It \wis alHJUl st lulinj: rliarnoi k
over into I'Vaiiee.
Air. .S7»M/A«T. To what purp- ill' ".■
•Mr. i'wiprr. '\\t hrinii; o\er liiiet s, vr i jn'ou-
rajfe the hriii^int;^ om r ol lorees : ihut Uiis ilie
purport of his iiiesssii^i'.
I^lr. Spaikir. Will you produce any ojIut
evidence to this jMiint .'
S«m;j. (fi»f</(/. \\ e desire this i^eniUiiian may
Ih' aske«l to the same purpnsi .
Mr. Sprak, r. W us you one of the p» til nn\ j'
Anof/ivr ll/.'wos. 'I'liere >*as eajit. I'itJi -.
and i\lr. (loodm.m, that >\ere the two oi-
denecN ; and <MH)ilman did say« that he ha!
been at the Old kind's- 1 lead in Leadtnhall-
streel, one Toxe's, and sjr .li»hn Fenwiek was
there, andM\i-r:d other y^entlemen, eonsiiltin^*
ul'aii atlau- to send over luto Fraitet* fur some
toreis lo he hroii>;ht owr into ICnufland ; and
that t'hurnoek was the pi • >on, and they all
ai^n III he .>hould :;o o\er.
Mv. ^/Mi.'Vc/-. Hut did he yfi^e you an ac-
I'ouiK ot wh.ili'ook ami the others^ did iitrree
M. iipim whieh >«>u found Mr. Cook {fnilty?
/'/// *.;».'.T. We did apprehend that l'«M)k did
eoiiseni that (Miaruoek should ^o o\er to
J-Vaiiti^', and actpiaiut kinQ James, that there
Upon a Bill ofAUaindcr*
tte letter, tlmtit may Ijeprodticet), iinil shewed ,
t9 Mr* Powlcr»
Mr. ycrmm. Sir, 1 reccivcil j?*>iir order to I
tt*i<? leUer thni sir J. Fr'»wi( k wrote, I
I ju custody ai Rtimney, wliich xv»^ seni
> rae by Mr. MmscaH, \v1io Imd it of 51 r.
er ; «Dd« if yau plvasCf 1 ara ready to j
deUv4^r it. \
Mr. Speak fr» Who sent it to v^u ? '
Mr. ^frjwn. One Mr, Mascull, a ja.<itice of
ce of Uunincy.
iir T, Poayi. 1 hope now we shall muke an
ction lo Ibis letter with g^ood aulhoriiy^
irely for them to |*roduce a Ititcr, aa air J,
iiuri«^*s, ii not to be alloned as evidence,
ttHleis it vi'a« j»n*vcd that he »vrote \%, because
tliftt sort of eridence t%a8 (mrticularty t>ikeii
BOtMse of by parliament : and jiid^'iuent ^iven
fm that sort of evidence^ by comparison of
><Js, in the case of Mr. Sidney* and the act
r«rersa| of bis attainder does atloM^ it to be
megril evidence. This is sudi an autliorrty
IS, I hope^uiU lieiir no I dispute : aud the courts
•f Westniinster-Hall ha^e since tlioni^ht it so ;
Ibey iHd so in the case of Crosby, who was
^peii the oiber day in Westmiiv«iter-HatL
^KSir jB. Shnu^er, In this objection we have the
^Kaion of inlerior cronrts, and Ibe parfiament
^Ep I for the particular evidence Mr. Sidney
^Pl« convicted upon, was ii|>on a paper which
was found, and provef) by &ome who pretendeil
Is k»ow his hand ; and 1 am sure that is more
^pUi they can preterit) to, auil more Itiau they
^|pve yet opened. We do therefore hnintdy
rmt this evidence^ ii beinty in the caae of
lifiP of a man \ and tbe kmef, Lords^ and
nmons, baviufir dechiretl. That this sort of
litJence ou^hv not to he uUoweil : and Ibei'c*
I hope, you will f>ot altow it in this case.
in Ciosby's case, U|ion readin^^ the act of
rliaONfnt, this evidence was not allowrd» and
.by wasaapiitteil.
^Bir T. Ptmyi. I hare a copy of the bill for
rermni; tbe attainder io ruy band ; and it
lys, * Tbe prodocini^ a paper Ibwid in the
closet of Mr. 8idney, which was not proved by
mny witness to he his hand- ivritinsr, ^c.^ Anil^
we hope, if in the judgment of iTie parlia^ment
thai WU9 not thought reasonnble evidence to
mtiaint tiim, this will not l>e tboiifrbt reasoimble
in parliament lo attaint this gentleman.
^^ tiery Gnuld, Aa this case l^, we hope this
^My he 1 concurrin^^r evidence : it wtH i»e plain,
^V|MMi the evidence we shall ifiTe, that Webber
wii* with sir John, and taken with him ; and at
t tiine this letter was haudefl by him over to
E^wler, to be r^irried to my Iddy. Now, 8ir,
'humbly offer it to your consideration, flow
- it is available, and what operation it will
ve? Wbetlttsr^ in a case of this nature,
k two being taken tog'ether, and Webber
I this letter to Fowler lo deliver it to sir
J. Pcnwick^s lady, tuid the iin|>ort of the letter
CODOenis sir J . I^eiiwtek foi- his acquittal ; you
will not suffer it to be read ? Jt is not to charge
bim With a treiisont for that is the case of At-
gcrooon Hidney : it ii uul Xu profe a critne
VOL. XHi.
A. D. ims.
[69(J
npon biiTi ; but we will pro?e that sir J. Fen<<
wirk handed this letter over, that ilmi^bt come
to his l.idy ; by which he desiretl hi^ lady ^a^
fnr to work the matter, that some juryman
mis^ht Ite found to starve iht' rest, ami ntand out ' |
for him ; if we could prnilncc WebJicr, we
would; it is plain, Webber correspondenl witti-'
sir John, and was with him. >l
Serj. Lani'L 1 humbly he^ one word in thif '
tTKitter: the counsel on tbe other side do tery
wt^ll knoiT, the constant practice is, *rbat ifi:j|
the case of a deed or will, let the value of the i
estate be ^vbat it will, iftlte witnesses cannot \
be produced^ or are ^ooe Ireyood sea, they ^
always admit evidence by eomj»iirison of handsel
But for tbe case of Algferaoon Sidney* there i4 f
no doid)t but his attainder ouf^ht to be reversed,
because that attainder was iip^on no other evi«
dence ; for there was no other proof, but a?1
paper, that he himself did say, was only for i\\m\
exercising of hi^ own intrenmty and parls ji'J
and it was said to be n riHen for no other pur-
TM>sp, and proved only by the comparison of I
hands : had there been any other witness t<^1
corrokirate» it had altered "the case. But inj
our c^se, we <lo produce the letter, not for the*^
eonvictinijf of the prij^oner ai the Irtir ; hut wtt j
are humbly to lay before you all the matter of I
fact. It will be wortliy oV your consideration, ^
what you wilt think lit to take, and what to J
reject; this is a matter for your ownjud^-j
meni. We produce this letter for this purpose, 1
to shew you, that at\er sir J. Fenwick wb»^
taken, he sipprehended his case to lie so des*
perate, tbitt he used (he!«e indirect tneaiH^
Mr. Sffittktr, What mean vou by thatf j
This letter came from Mr. Fowler.
Seij. Lovrl. Here ii Mr. Fo^vler thai received j
it from Webber, w hen sir J. Fenwiek was by, ]
in the presence of sir J, Fenwick*
Mr. Speaker. 8bew Mr. Fowler the letter,
[Accordingly the clerk went down to thu bar| j
and shewed Mr. Fowler the letter.]
Mr. Speaker. Do you know thai paper ?
Foteler. Yes, sir.
Mv. Speaker, Where ha?e you seen tl be-J
fore?
Fi>ft'ier. I had it from one Webber, that was j
ai Kumney, about the ^d of June, as 1 re«|
uieuiber.
Mr. Speakfr. Was that the time thoct sU
John Fenwick was seized ?
Ftmlcr. He was then at Rumney. Mr.|
Webber, 1 was told, had some acquaintnnc
with me, and desired to speak with me. i went I
to him ; and he wsm rh'mg ; and when up,,
says he, Mr. Fowler, 1 would desire yoti ttfJ
fmt a letter into the post ; says he, there is naj
lurt in it ; it is directed to Mrs. Frances Far*4
rer, at the countess of Carlisle*s in $ob<H]
square; and when I had delivered it, be i
»ired me to come to him afi^ain.
Mr. Speaker^ Did you come to him agaio ?
Fowler. Mr. Maicfdl, of Bumuey, sent fqf
me to his liouse^ and rold me, that he Itadheap
that I had received some letter from Mn
Webber ; and when be had opt oed it, aud fftir *
2S
62SJ
8 WILLIAM III. Proceedings against Sir John Fen^aek^
Collins, To the best oi' my roemorv, 1 wilt
Sive the best account I can. Goodman did
epoBC, tbat he came to the Kind's- Head in
LoidenhaU- street, and enquired for captain
Porter, acrurdin^r as the captain had ordered
kioi ; aiul the captain came ihiwn and carried
him up into the room where the gentlemen
were. There was sir John Freind, sir Wm.
Park)rn8, Mr. Cliarnock, Mr. Cook, and sir J.
Fenwick ; there was two others, if you please
to have me name them.
Members. Yes, yes.
Collins. My lord Aylesbury and my lord
Montgomery : this was what he deposeil.
Mr. Speaker. Goon, Sir; you have named
those that were at the meeting.
Serj. Lin>eL Did he give you an account of
what was agreed on at that meeting ?
Callint. 1 think it was about sending Char-
nock to France.
Mr. Speaker. Sir, you should repeat all the
|Nirtk:ulars, what Charnock was to do.
Collins. I cannot remember any thing fur-
ther than what I hare told you.
Serf. Gould. If you please that Mr. Cooper
may be asked to this ?
Mr. Speaker. Was you of the petit- jur3Mhat
convicteil Mr. Cook ? — Cooper, Yes.
Mr. Speaker. Can you give the House an
account what evidence Goodman gave to you
tor conviction of Cook, and what he said iu tbat
e\ idi'nce ?
Coitpcr. Mr. (i(K>dman did declare upon his
evidence, that he was at the Old Kin;;'.,. Head
in lieudenhall-sireet, where ho did moot with
•hvers |tcrs4ms that wert' in coiisnlt.ition ; he
named Charnock, sir J. Foiiwtck, sir J. Fivind,
and di\i*rs others.
Mr. Speaker. What was llie consultation .''
Mr. Codficr. It was about stnilinu: Cliarnotk
over into France.
Mv.Sptitktr. To what jiurp'-sr r
Mr. C\v/>ir. To liriuir o\cr t'oitvs, <-r incou-
rage the brini'iiii;' (»\cr nt'torces : ihat ^*.is ll:r
purpttit of his nu-S'iiiire.
Mr. Sfotktr. W ill vou pnxiucc r.ny oiIut
evidence lo this point ?
JSerj. (»i»m/i/. Wedesire this gem loni:ui nuiy
bo askinl to ihe suine pur[mst.
Mr.Spcuki". W as \ oil one of the pi tit ]\v.\ ?
Anofhtr lf\;»ii>>. There was iiipt. I't-rii ■.
;uul Mr. (loeihn.in, lital ^uiv the two i\.-
dencos : and (looihnan did say, that he ha 1
heeii at the Ohl knit's- IK ud in Lcadtiihall-
slreet, one Coxe's. and sir John Feuwick was
ther«\ and M\er;d other gentlemen, coiisnUiiig
o:'an,^trair to send over into Fiance for some
forces to In* hreOi;hl over into Kn:;hnd ; ami
that Charnock was the (k . hmk and they all
a;»r%vd lie »houhl jX^^ o\cr.
Mr. ^'; «-.:s:c ". Hot did hesjive you an ac-
count t)f w hat CiH>k and the others did a^ive
to. \\\\o\\ which you found ^Ir. iVnik gniliv .*
r.*i( sane Wv did apprehend that Cixtk did
consent that Charnock should go o>er to
Fno^, aiul aoquMBt king Jainct, tbat ibere
had been a meeting of teveral gentlemen, an
that they had made several cifiera of soldier
and people tbat were to lie raised here, aod t<
acquaint king James w itii it ; and lie declared
that sir John Feowick was there at the muim
time.
Mr. Speaker. Pray, can you give thislloufc
an account of what exception was takeo lo
Good man *s credit, and how it was ansaem).'
The same. There was exception taken, tbtt
he was guilt^r of a great many criines, lod
tliat he had his pardon ; aud the fines woe
levied upon him ; but it was said then, that be
had |>aid his fine, and that he was a very good
evidence in the case.
Mr. Speaker, Mr. Serjeant Gould, haveyoo
any other evidence to produce ?
Serj. Tjfvcl. If you please, Mr. Speaker,
here is Mr. Tanner, the clerk of the arnifpn-
ments, that best knows the nature of thm
tilings ; that as to these objections that witc
made, it appeared to the court to lie a coitriv-
aoce, for he was never bailed, btit discliargri
without any more to do. If you |ilcase thit
he may lie asked. What objections were nnde
to Goodman's reputation, ami what aoiacr
was made to it ?
Mr. Speaker, I did ask the itiryman tbat;
aud 1 suppose you need not labour this poiat,
unless the credit of Goodman comes in ^ua-
tion here.
Serj. Gould. Then may it please you,Hr.
S{ieiikor, we liave one other piece of evidfiee
against sir J. Fenwick, which we are liaoiUv
to oiler to your con si'lr ration, and I think iti^
very material ; and it is some of the evidence
which I did open in staiiunr ot the cusi.', wbiTcia
sir J. Fonwick hath, in a manner, given a ver-
dict against himself ; tor while sir .1. Feowick
was working of his escape to go bc}Ood sci.
at that very time then.' wa^ a letter wrilteab)'
! him, directed lo his Indy, end delivered iirio
, the hands of one Mr. Fowkr. who was tocaose
; it to lie ilciivercd to hi» luilv b^ one Webber,
i w ho was taken up w ht n sir Jubn Fenwick atf*
i Tills letter imports, That sir J. FcnaicL
'• loi'kod upon himself us having no dfcfeoce.hat
i de])cu'.!eii eniy upon a conlri^ance with th^
I jury ; they were to work with some persons of
the jur\ , w ho were to stand it oat, and u» blarre
tile rest : und so by tliat means to save liiD>>
; ()uv 1 \ iileiice of tliis w ill be, that it fell out
that ^Nri'ilier (we ha\e hiin not Lore n»w, btti
have ciidtatonrcd it as much as wus |io$sil)le,
. bill he is ^r.ne mo out uf the way), tbat he wa*
taken at tlie sunic t:mc that sir J. FenwiclE
w.!"*; l«;i: hy reasoi: nl the |t;i»tracliog ot'iir
.Tohn'N tiial, he cciihn. and i> lit-hvereil, tbeia
Iviiiy^ no ih.iFuc ii^air.Nt \\\\\\ ; and ho i>, siB<*
hi- uiii^K:.;!^* i'.j).iii lii> Habeas Cor})US,j;W0
. rut ot" I'.ie wv.y ; h-jt we shall, iu tlienieW
I ol our c\.fl^".it». pri»iluceyou Mr. Fowler, tba
' person to wb.om this letter was handed, wbi
will ^.\e \ou uii account ot this letter ; an
then will I'rt'dMce this letter : to which o^
we mii>i huuilii\ bog the favour of a tnrt^
moiibcr of this' House, 51r. Vemoiiy whtfM
»1
^pon a Bill ofAUainder*
A. D. 1696.
b letter, tbit it may bejiroduced, and shewed
)lr. Fowler.
Mr. Vernon. Sir, I reoeivcil your order to
ini^ tffie letter that sir J. Fmwiik wrote,
hile in custody at Riimney, which wa«( sent
p to me by Mr. Mascall, who had it of Mr.
Wler ; and, if you please, 1 am ready to
eliTCf it.
^r. Sneaker. Who sent it to you ?
Mr. Vtmon. One Mr. Mascall, a justice of
letce of Rumney.
Sir r. Povyt, 1 hope now we shall make an
objection to this letter with gfood authority.
Suifly for them to produce a lelter, as sir J.
Fcnn'idc's, is not to he allowed as evidence,
iDless it was prufed that he wrote it, because
riiat sort of. evidence was particularly taken
Mlioe of by parliament : and jud|^ment i^iven
ipOD that sort of evidence, by co»i|iarison of
Mods, in the case of Mr. Sidney, and the act
•f rerersal of his attainder does allow ii to be
iHcffil evidence. This is such an authority
IS, I liope, will bear no dispute : and the courts
rf Westminster- Hall bsivc since ttion&|[|it it so ;
tkcviHd so in the case of Crosby, who was
Hiol the other day in Westminster- Hall.
Sir B. ShoKer. In this objection we have the
•pioion of inferior courts, and the |Niriiament
tet ; for the particular evidence Air. Sidney
WM coiivicte<l upon, was u|)on a paper which
vatfuand, and proved by some who pretended
Ii know his hand ; and I am sure tliat is more
tbio they can pretend to, and more than they
kwe yet opened. We do therefore humbly
rae this evidence, it beinjjf in the case of
life of a man ; and the kiniff, Lords, and
Gwinona, havinsf declared. That this sort of
cridence ought not to be allowed : and there-
fcre, 1 h<»pe, you will not allow it in this case.
Asd in Crosby's case, upon readin^^ the act of
priiaoMnt, this evidence was not allowed, and
Cnibv was acquitted.
ftr T. Powyt, I have a copy of the bill for
fsrcrtioit the attainder in my hand ; and it
ays * The producing a |iaper found in the
cmet of Mr. Sidney, which was not pn»ved by
IB? wiiDCfls to be bis band- writing, ^cc' And,
vebope, if in the judgment of the parliament
ta was not thought reasonable evidence to
lUaiat bim, this will not l»e thought reas^oiialile
in|«riiament to attaint this gentleman.
^kn. Gimld. As this case Is, we hoi>e this
■ay be a concurring eviflencc : it will lir pliiin,
«|Mitbeevidence we shall give, that Webber
«ii with sir John, and taken with him ; and at
Ihil tine this letter was handed by hiiu over to
PMler, to be carried to my Uily. Now, Sir,
*c bninbly offer it to your consideration, f low
6rit is available, and what operation it will
^«? Whether, in a case of this nature,
IkjR two being taken together, and Webber
tticn this totter to Fowler to deliver it to sir
'•Fcnwick*8 Uy* and the import of the letter
"' mrJ, raiwick for his acquittal ; you
'^ it to be read ? It is not to charge
a Ifvaaoa, for that is the case of Al-
nmm Htdu&j i it if not to prove a crime
VOLXiUL
upon him ; bnt we will prove that sir J. Fen-
wirk handed this letter over, that it might come
to his hidy ; by which he desired his lady so
! fur to work the matter, that some juryman
iniv^ht be found to starve the rest, and Ntand out
for him : if we could produce Webl>er, we
would ; it is plain, ^Vehber corresponded with
sir John, and was with him.
iSeij. Lofvel, I humbly beg one word in this
matter : the counsel on the other side do very
well know, the constant practice is. That in
the case of a deed or will, let the value of the
estate be what it will, if the witnesses cannot
be produceil, or are gone beyond sea, they
always admit evidence by comparison of hands.
But ^or the case of Algemoon Sidney, there is
no doubt but his attainder ought to be reversed,
because that attainder was upon no other evi-
dence ; for there was no otner proof, but a
paper, that he himself did say, was only for th»
exercising of his own ingenuity and parts ;
and it was said to be written for^no other pur-
pose, and proved only by the comparison of
bands : had there been any other witness to
corroborate, it had altered Ithe case. But iu
our case, we do produce the letter, not for the
convicting of the prisoner at the bar ; but we
are humbly to lay oefore you all the matter of
fact. It will be worthy of your consideration,
what you will think fit to take, and what to
reject ; this is a matter for your own judg-
ment. We pro<luce this letter for this purpose,
to shew yon, that after sir J. Fenwick was
taken, he apprehended his case to be so des-
perate, that lie used these indirect means.
Mr. Speaker. What mean vou by that?
This letter came from Mr. Fouler.
Sei j. TjOveL Here is Mr. Fowler that received
it from Webber, when sir J. Fenwick was by,
in the presence of sir J . Fenwick.
Mr. Speaker. Shew Mr. Fowler the letter.
[Accordingly the clerk went down to the bar,
and ahewcHl Mr. Fowler the letter.]
; Mr. Speaker. Do you know that paper ?
I Fowler, Yes, sir.
i Mr. Speaker. Where have you seen it be-
I fore?
I Fotvler. I had it from one Webber, that was
; at Rumney, al)Out the :id of June, as 1 re-
{ uicuibcr.
I Mr. Speaker. Was that the time that sir
JdIih Fenwick was seized Y
I Fowler, He was then at Rumney. Mr.
i Webber, I was told, had Kome acquaintance
with me, anil desired to speak with me. I went
to him ; and he was rising ; and when up,
says be, Mr. Fowler, I would desire you to
{)ut a letter into the post ; says he, there is no
lurt in it ; it is directed to Airs. Frances Far-
rcr, at tho countess of Carlisle's in Soho-
> Mpiare; and when I had delivered it, he dc«
, sire<l me to come to him again.
Mr. Speaker. Did yuu come to him again P
1 Fowler. Mr. Ma8c:dl, of Rumney, sent for
me to his house, and told liie, that be had heard
that I had received some letter from Mr.
Webber ; and when be. bad opened it, and taw
2S
827]
8 WILLIAM IlL
what it was, be thoaglit fit to send it up to the
seeretarv of Rtate ; and I made my mark upon
it, that I miirbt know it again.
Mr. Speaker. Have you made your mark
upon it P — Fowler. Yen, Sir.
Herj. I/>vf.l. I desire he may he asked, whe-
ther sir John Fen wick was not in the same
room when Webber delivered it.^
Fmcler. Yes: but I question whether he
saw Mr. Webber give it ; for be delivered it
prirateW, as 1 thought.
Vr. Speaker, Was sir John in the room then ?
Fowler. Yes, sir.
Mr. Speaker. Can vou say any thing more
of sir John Fenwiek's knowledge ol*that paper ?
■ Fowler. No, 1 know no more.
Serj. Gould. If vou please then, Mr. Speaker,
beeause perha|i8 there may be some objections,
that we should give an account of Webbc?r, we
will caU a witness, that we have done our utmost
to find him out.
Membert. No, no.
Sir '1\ Fou'is. That which I was going to
oA'tr is, that this proof is short, if that which
in the act of reversal of the attainder of Mr.
Sidney is admitted to be no proof against him ;
Ibr the act recites that letter was tound in his
closet, and proved by comparison of hands, and
yet for all that, this sort of evidence is con-
demned by this act of reversal as illegal evi-
dence, 'f'his case before vou comes short of
that ; for here is no proof by comparison of
haniis, nor that it was in the possession of sir
J. Fen wick : but only that a person in the room
without the privity of sir J.Fiinwick, delivrred
it to another ; and the witness says, he did it
in .1 privali.' manner.
Sir R ShoHtr. \\ itii submission this letter
could i«ot be rc.id in any pl:ice whatsoever
against sir J. Fenwick, in a civil cause; fur
t vcTj ill that case, they must prove it to be his
hand-wiitiiii>- by eoinpurikon (if hands.
8eij. CumiJ. ' 1 think not to insist upon it:**
Proceedings against Sir John Fentoictf [flS
But that we shall desire is this ; we hate no
done with our evidence, only we shall desi;
the worthy member, Mr. Vernon, to give i
account what was the reason why air John hai
not been tried ; for indeed he hath very mac
trifled with the government, pretending still i
make a free and ingenuous confession.
Sir T. Powyt. I am of counsel for this gentli
man at the bar ; for his lite, for his fortmit
for all that he hath in the workl. It ii oc
only this ^ntleman's case, but it is a case tbi
may be of great consequence in all future thsa
I have, as it was my duty, attended tor at kai
these twelve hours, either in opening the nut
ter, or by producing such evidence as, m
hoped, \\e did fairly object to. Sir, there an
several things oiTere^l on their parts, wbichj
confess we little expected, and which will Ri
quire something to be said to ; and I bavs a
great deal to olfer on the behalf of sir J. Fes-
wick, both as to this metliod that is taken, and
what is a Hedged in the bill, ami what is con-
tained in the iiidk;tmrnt upon which the bill if
founded, wherein I desire to be lieanl : aoi
since you have been pleased to allow us to be
counsf-l for him, I am sure we shall have a Air
and favourable bearioq^. We have a great
deal to offer to you, iuMh as to the matter w tbe
iudictmeut, and the manner of it : and I bop
to shew yon, that the iudiclment, as it is lad,
does not contain a sufficient charge of treasflB.
We have likewise a srreat deal to say, as to the
evidence they have offered, at least what tbej
call so : but I must make it my request, that
we may have liberty until to-murrow nioroiDg
to majce our uhservaiions, and answtr what
ha'ihbeen said i)y the counsel on the other idde.
I am not in a very ^od condition by this luDg
* 'riiis letter was written with a biack-lcud
pencil, and was as tulious :
** U I'lil 1 fcartnl is at last hap|>ened ; iiad I
«;<ine aluiu> 1 liud dune it ; hut the other was
b«.Mr.iyi'4l Ihiiu London. It is liod's will, so we
nuist submit. I know iiDthiiiir ran sa\e my
lif«>, but my lord Carlisle's gtMUiT o\er ti» him,
(meaniii;*: kiiiif \Vi]linm j kicked by the rest of
the family ot'tlie llowaviU, to he:; it. and ofier-
iii:jf, that I will lie alinvit! all Ins tinu\ where I
cannot hurt him ; ami tl::*t 1 will never draw
snont airainst him I must leave it to ynu
what else to say. All I'l '.ends must bo made.
My I. id Devonshire ma;, |ierhap>,hy my lady ;
my !onl liodolphm uinl iiiv ionl IVmhrokc.'by
my lady ^lonti;oiner% ; \\i: NtUon by the
bishop (it (\iiilrrbury. My lord Air.iii niis;lii ] sny no more now.
enufaife his hntlhcr S«>lkirk to use his niterest
Willi Kepp.l. I Micve, if my lord Carlisle
would go. II were lK?st betbiv uiy trill. <»r else
they will rut mc short tin* w.'\nt nf time : if he*
can prevail with liim fur a pnnlon. he will pro -
rare it as well before my trial as alier| at least
he may prevail for a reprieve, till some can
come over to him. My lord also will have an
opportunity to engage' Bentinck [the earl of
Portlanil,] and get my lord Essex to join with
him. I cannot think what else to say; bet
the great care nmst be the jury, if two lyr thrve
eould be got that would starve the rest ; that or
nothinuf can suve me. .Money, i know, wonld
do it ; but alas ! that in not to be had, nnr sliall
I livi enoughfor counsel. I beg ui' yon not to
think of being shot up with me;'l knowil
u ill kill you. and besides, I have no such fiienil
as you to take eare of my business : th(iii;;hit
would be the eouifort of iny hfc, llie little time
it lasts, to hu\t: you with nie : and I havethii
only comtoii now let), that my death will make
vou easy. 3!y dearest life, grieve not for ne,
iiiit resign me* to (>od's will. You will bear,
as soon as tbev bring me to town, where they
]iut nw, and then I would have a servant, sf
someliody with me. I am interrupted, so can
Engage sir John LowlbeTi
the new lord, w ho has more interest than mj
bod\ . Let m\ lord Scaradale engage JcmaiM
lo engage 0\ erkirk liir me. Speak to my My
Arlington. Jf my trial could be put offtUltlM
king enme.'^ back, there would be i
tunity to solicit hifu."
«39]
fipott a Bill of Attainder,
A. D. 1696.
[630
■mttendance, and by attendingf mv duty in the
courts in WestmiDSter-liall ; antll am afraid I
am not now in a condition to do my duty, as
may be expected from me. 1 must owu it, I
am not prepare«i as I ou<;ht to be ; and I hope
when there ia so great a stake, you will allow
us until to morrow morn ini^.
Sir B. Skoaer. I beg your favour in the same
manner, and to the same eflect as sir T. Powys
hath done. It ia to be acknowledged there are
several thiugs offere<l in evidence, which is
new to us lawyers. We do not desire to trifle:
we do not desire it on behalf of the |irisoner by
way of delay, but on behalf of the len^ih of the
proceedings, tliatyou w ill give its a fair heariog,
as you liave allowed it to the kio^'s serjeaots ;
and that we may make that defence that is in-
cumbent upon us in discharge of our duty to
the prisoner.
Mr. Speaker. Gentlemen, you must with-
draw. (And being withdrawn,)
Mr. Smith. 1 would not give an opportunity
to any man to practise with witnesses, to
hinder the truth of the matter from appearing,
after they have heard the evideace i))r tlie bill.
I woukl know what list of these witnesses sir
John Fenwick hath given in ?
Mr.. Speaker. You did make an order, that
sir John Fenwick should deliver in a list of his
witnesses; but 1 believe he did not send in a
list to any body upon that account, for 1 have
made no order tor any.
Loid Omingthy. l am convinced that you
areobligedtosit so long as to hear the wit-
nesses on both sities ; and therefore my iqo-
tion is to call in the counsel, and ask them, if
they have any evidence to produce ; but 1 tlu
not desire the counsel should go on to make
their observations to-nieht.
Sir Walter Young. I think you are rightly
moved by that noble lord that spoke last. I
think if sir J. Fenwick hath any evidence to
produce, he ought to produce it now ; and that
you ought not to give him time till to-morrow
morning to produce that.
Mr. Speaker. Is it your pleasure that an-
J. Fenwick and the counsel be called in, and
toU, that the House do expect, if they have
any witnesses, thot they do examine them to
night ; hot as to their observations the House
wUl give them time till to-morrow morning ?
Which was generally consented to, and they
were brought in again.
Mr. Speaker. Sir Thomas Fowls, the House
bave coasidered of what you said, when yon
weat out, and they are inclined to alk>w yon
time for making your observations : but tney
bave commanded me to ask you, if you have
any witnesses to produce? and to let you
know, that if you have any witnesses to pro-
duce, they ei^lMGt you would produce and
aamiDCtnem to-nignt.
8b T, Fcmyt, Sir, 1 would acquaint you with
an the opeuices that becomes me on this occa*
■on. 1 must confess we have not any wit-
iMHt tlnlwepTopoietocall; bat when we
come to speak to the matter, we hope to give
you some satisfaction as to that ; out at pre-
sent we have no evidence to produce, unless it
be a copy of a record.
Mr. Speaker. Sir, if you please to withdraw,
you shall know the sense of the house.
Accordingly they withdrew.
Chan, of the Exchequer. I suppose, since
the gentlemen have no living witnesses to pro-
duce to-night, you will not Uiink fit to receive
them at any otner time, for it is giving them
too much advantage ; and the whole meaning
of the chicanery of the counsel, is only to get
time to reply, Mr. Dighton having heard the
evidence. And now 1 have mentioned him,
give me leave to tell you. That I think you
cannot rise without taking some notice of him.
I think there is as plain a sul'Ornation proved
in Dighton, as can be, by one Uoe ; and when
L you have heard such a character of a man, and
I (here is no other evidence that he can solicit, I
think you ought to take care that he he
forth-comiitg ; anil that he should be taken
into custody. I think yuu may give the
counsel further time as to the record ; that
cannot well be falsified ; though 1 believe in a
matter of this moment, where the government
is concerned, there never was such a pro-
ceeding by the counsel, as this has been, to
entertain us six or eight hours together, by
delays.
Mr. Smith. I suppose before you hear any
thing as to Dighton, you will do something
as to the putting this cause off to another day ;
1 hiunbly propose that you will goon tliis again
on Wednesday.
Sir H, Hohart. When it is proper to go upon
ways and means, 1 shall come into it: But
while this is upon your hands, I believe you
will never ^et heartdy into otlier business : and
therefore 1 humbly move you that you will
go upon this to morrow morning.
lliereupon the house came to these Reso-
lutions:
Resolved, That this house will proceed fur-
ther in relation to this business of sir John
Fenwick to-morrow at twelve o'clock.
Ordered, Tliat sir John Fenwick be re-
manded to Newgate. That the bill be read a
second time to-moirow moniiog.
Mr. Riifte/. 1 am unwilling to trouble gen-
tlemen at this time of night ; but I would
know, Whether, when sir John Fenwick Is
called in, you will ask him any questrons upon
that paper?
^embert. No, no.
counsel were called in, and withdrawn
The
again.
Resolved, that this House being informed
that the counsel for sir John Fenwick have no
living witnesses to protluce except to prove a
record, that this House will not hear any wit-
nesses, except to prove the said record.
Ordered, That Mr. Dighton do attend to-
morrow moming.
S WILLIAM IIL Proceedings against Sir John Fentaek, [632
ax the kiDj^'s sorjennt insisted tbcre was : and
if there be so, then, iintler lavoiir, tliere is do
reason but he bhoulcl have the benefit of an
(inliiiary trial, Hbich it the birth-ri^ht ol' ill
the kinjr's subjects : or there is not sufficient
evifltMice agfuinst him ; aitij it' there he not, it
\i ill be a ^und rcascm against making a par-
ticular idw for taking away his life : For, we
think, nothing can be saul for this law, bw
want of evidence ; and that, to my under*
standing, is a very odd reason.
Sir, I would not s|)end time in taking notice,
That the meanest 8abj(H:t in the kingdom is
entitled, by being born in this kingdom, to be
trird by a jury, where there are those just ad-
vantages, that cannot be bad in another case:
There is a lil»erty of fiballcnging S5, withmK
slieu ing any rea8i)n, and as many more as tie
can any way object tu with rea^ion. The wit-
nesses arc u*|)OQ oath, and all the proceeiiiDes
are bv cortatn known rules and methotis, sod
631]
Noremlier 17. Sir John Fen wick and the
couusei un both sides were called in.
Mr, Speaker, Sir Thomas l*uwys, 3'on that
areof cnnnBcl for sir John FeuuicK, the House
agreetllast bight, to give you time till to-ilay
to make your defence, your obttervalions upon
the evidence that hath been given.
Sir T. Pou}/$, Mr. Speaker, I am of counsel
for sir John Fenwick, who now stands before
you upon the greatest concern he can have in
this world; and assi you ha%c been pleased to
assign us to lie of cuuuncI fur him, and I must
own ha\e very fuvournbly heard us liithertt»,
80 I shull think myself very unfortunate, if I
should let full any expretision in his defence,
that should seem'indeceiit, and give oifence to
this House; for I am hmvc I have no intention
to do it, but on the couirary, to behave myself
with all the deference that n» pus^iMe, in a'cuse
of this nature.
The thing I shal! insist upon, will be upon | notonly by Ihestatnieol MagnaCharla,b»tby
three heads. 1. The mauuer of proceeding, , the common law of England, much miire un-
and method that hath been taken in this prose-
cution. 2. I shall tab.e notice of those thiii;>;s
that arc alledged agtiiiist him in the bill, un«»n
whirl) he is to make his defence. '6, 1 bhall
beg your favour, to observe what sort of proofs
they have offered on the Dther side, and which
they call evidence.
As to the first matter, 1 must intreat the fa-
vour of you to be thus understood : That when
1 say any thing in relation to the manner of
proci-rding, I do not speak in op|K)$ition to the
jjowtr of parliaments ; for 1 ki-oiv very wrll,
that our lives and estates, ami all that we liaxc,
are snbjeel to acts nf parliament ; but 1 h(>|)e
you will permit me to oiXvv some reasons, which
(I hopo) may be of wcii^ht, in o(>|»osiiio;i U\ the
rxercisintf of that iJOwiT in the way you are
now goiii:^. Noliody can say, but whrn an
act of parliauuMU is |i,isFt:d, thoiiyfh the parly
^•onrriKil tna\ titink it ^*as uj.on haul fMins *;
yt'l v*hcn it i> heeonu.' a hiw. it is noi to l.«.* oji-
pos»il. I rariJKil say hut those pcr.'Mis, who
in the la'-i M'.s>iuns <it' parliamci.t \vt.r«* impri-
t»oi:c.l by m .li'i i.r /'«/./ /Ja7() and ^^^llM ;ini.Mii
to the fai t i'(»ni|)!a:iie(l (»f; yri wht-n it was
pasjsed into a law, they Wfr(''|(Mrall\ di-taiiicd :
Bill, I hope, 1 may so tar lake notice »;f linMr
'•rtse, as some kind ot rcas 1:1 a^^ainst this, to the
«:nd that those lav.s ma\ n -t ^rcjw familiar, th.it
thiy may n«»teasil\ U' oh. .lined ; hecans-j pre-
<'tj|ents :;cin'rally ^r»vv ; and as that law ' e\-
• po^t facicj,* cxtrnilid to liiRriy, so ihis extends
tfi life ; one precencut is apt to I.m :;«t aniMhir ;
.mil tin rcfore, sun-, you will be careful how
\cm pve pri.-Cfi!enls, especially in cnse of life.
The lirt tirm;; 1 observe, isohviinis; that
IS, the jjerson ulio i.> ti» l.(? -wim n«<..| hy this
hill is forthcoming, in ordrr to he triiil in the
ordinary method of ju<:tice. Me is not onlv
«iidiete4t, and actually tmder process ; but he
hath |ileade<l, au'l he is ready, when his ma-
jesty, in the course of justite, shall call upon
cieiit than that statute ; and thnnsfh the pro-
' cecdings therein are such as a criminal inaj
I sometimes escape, yet the just advantages arr
I so much lieyond any thiug t»f that nature, that
I K hope we shall never complain '>f thataacient
\ course of proceeiling by jury : lam sure it is
I the honour of our governmeni, the mark ol'
our free«lom, and envy of our neighbours ; and
< I ho|ie, that method ol' trial shallnevcr lie laid
j aside, though sometimes it may not have the
I effect that is desired bv it.
I I w<mld take notue to you, that in a esse ut'
th(^ qfreatevt crime, and most notoriety ot' lact.
I yet the persons concerned in it werebntutrM
l<» their trial, 'f he re«rieides, who did not fly,
I hut were lound upon tlie restoration of kin^
j ('liarlos <2, though tl»eir treason had the wor^:
eff'oct. e\en in the murder ot the kin:»: ; y^-
i notwithstanding, though the tact was so no-
torious, iho.se that were found upon the place
I were admitted to their trials in the ordinary
\ courst: of justice; ahhough ut the same ilmt
I there was a bill of attainder aj^ainst some that
fleit. and some that \%ere dcid, and so ccmUi
not he iricnl.
' I would, with your favfMir, likewise observe.
That the parliaments of England have been $0
. far from depnviuif persons from ih^r ordinary
■ trials, that whereas the common law of Kug-
land sa\s, tliat persons out-lawed for treason
> aiid fei(Mi\, it'tnken, shall be put to death with-
out trial ; \et the parliament, in the reign t»t'
Hilward (>, made a law, pntvidini;, that cri-
minal* that reiiirnrd wiihin a year, aceonling
lo that law, should be admitted to their onli-
nary trials.
Sir, all along: the statutes run in favour of
trials ; there are no less than two acts of pnr-
. liament in the reitrn of Kdwarc! 6, in ihe first
and tilth year (»f his reign, that say, there shall
' not he less than two wiinesses against any per-
son tor treason : And 1 hope I shall never see a
iiini, to undergo his trial ; and cither there is j law made so much in opposition to those arts,
><uUieii'nt e\idcLJcc, legal evidence against him, \ as that a [>er;>on shall be sentenced to death
upon n Bill of AiimnSSr.
1L9 one witDt^s^ as I shall
^TLihont so mnch
shew by and Uye.
Perhap?i ii loi^bt be Ibougbt e Kirn ordinary,
Thai in Ute same parburoenl thai pussed a bill
fi*r rcguliiling triaJs in cases of high'trea&ont
rft^uiring' two wrluesi^ea ^\{h great strictness,
nnd giving' furtUer advantages to the ertmiual
tbati eter wvre before allowed, an act Ehniild
pass, to put a persoD to death, wiUmiit any
trmt at all. And let any one compare the pre-
amble ot'lbai act vkitii tbis hill.
ISir, 1 take it, wttb bumble su))ti>is%ionf that
tbe present case it not ut aH to tx^ liketieil to
moat of tho^e bills of attainder that may be
csted ; tbose, when th«y cocne to tie looked
mta, will be tbuml eiiber to have passed against
titcti persons as fled fro in justice ; and tliniein
tUey only pursued tbe role* of the cotimiwn
law, which allowed them to he out- la wed, »nd
by coofieituence to he attainted : and the jiar-
hameut theretore, m altajntia^ lliem, did hut
the lame thing; and therein, there wan nolhini^
done exlruorihnary. True it i^, that nbere
riersona have bet-u furlbcutiim|r, thei'e have
Lret) ftome fe^v bdls of attainder: but I ii^ill pre-
•ufiie to say, they are never meationed wiihonl
fieary oeuaurtiS, ami a grent complaint agrunst
ihem,
Thid cttiiseia not like the late inslaace of th''
bdl of aUamder againt^t the duke of Moo-
tuouth,* for be was present in the kingiloin :
yet he was hi direct up poi^itiou lo any method ol
trial ; be was in defiance to hII rourts of jus-
tice t but here is a pcrston u Iio submits himseJt,
and hatb pteadefl, and fttand»i reatly to he tried ;
audi hope, I miiy take notice, to lake oji' all
prejiiihre tliat rnay be raided, ihat tht<« gentie-
niaa, though he wa»> of the parliament that
ptntd that bill, yet he wuh not in town, until
af f«a*l a uwuib after the bill was passed*
I do aijree, there art some c^ses h here per-
fM»M have been attainted without bein^ m knitted
to be tried. In the lie[»innijig of the reign of
Edward 3, Roger Mortimer wus attamted and
eatecuted, without being tned ; but 98 td, 3,
il wa* feverstd, because he was nut brought to
jotlginent according to the law of the land, 1
£d. 3. The like m the case of Edmund earl
of Anmdel: but 4 £d. 3, Hich:ird hisa sdu pe-
litioiied iu purham*:^ut, aetiing forth the ^ pro *
«9eeding« to be agamst the Great Charter, antl in-
Mlili^t that there ought to bare been due pto-
efeaa of law, and be was then i-esturetl in part -,
hot 28 Ed, 3, there was an act of revej-sal, de-
fsUriog, that it clearly appeare^l, tlntt the said
£dtDund was unduly put tu death ; and that
the statute by vihich he was attainteil, was
vmdi erraneoui, and null . There is an instance
* 8e€ this Gate, vol. ll, p. 10(25, in a Note
to wbrcb, p. 1040, is contained some matler
«Oiw 1 I m!c of passing the Act of At'
till. 1 lu the works of lortl De-
ere, see iii^ I rial, vol, 11, p. 509, printed
I, is an article, nUilled, Obbervatiou:^ upun
Attainder of the late duke of Mooiooutli,
tke, alio, 2 Ralph, 143.
D. \696. [634
in 3$ H. 8, Col. 4. Inst, foL S7. of Thomaii
Cromwell earl of Essex, who, though he wa»
iu custody tu the Tower, yet he was attainted
without being tried ; but the words of my lord
Coke are as follow, ^ Auferat ublivio.si potest,
* si non utrumq; silentium te^at:' for the more
high iind absolute the Jurisdiction of th« oonH
is, the more jtiHt and honourable ought it to be
in its proceedings, ami to give examples t>f jus-
tice to inferior courts. And he atlds I'urther, to
the end, as 1 apprehend, that the reversal of
this attainder tnay be tif ill uso: I am, says he,
confiilently (>ei^uudeil, sorb if'orthy atid ho-
nourable members bhnll from time to time be of
both huUNfs of paHiameni, as never any uttaiu-
iter, uhen the pers^m is furtb-coming, shall be
bad herettrtiT, without hearing of him ; which
I understiitHl to lie, without trying of him :
nnd it is ntemorahle, what my lord Coke re>
eaes, that he who thus died, alteuipted the hke
ogniust auother,
Tiiere is another caae, of Thomas Seymour,
ailuiirai of England, who likewi<ie was attaint-
td by act vf* parliament; aud as d appears,
wit bout execution , you bureau abcodnt there-
of in tbe second part of the History of the He-
formation, toL 98, ^, WO, wUiiber I v-ill refer
yon, only to read the sentence of the learned
huihor, there pronouticed ag^ainsthmi. That
Jauercase is, that of mv lord Stratford, which
every body kivows. 1 shall, as the best account
of that matter, crave lea»e to read the wonts of
the parliament to the act of tbe reversal, f
will not ( rouble you with reciting tbe whole,
but only read the begintiing, and some part
thereof in another place, " Whereas Thomas,
late earl of Strafford, was im[ieaelied oi high-
IreasffH, u|H>n pretence of endeavouring to sub*
vert the fundamental taws, and called to a pub*
lie and solemn arraignment and trial before the
iMiers in parltauient, where \w iim<le a particu ■
ar defence to every article ohjected agiunst
him J insomuch, that tbe turbulent pany Ihen
seeing no hopes tu effect iheir unpist designs,
bv an ordinary way and method of prckceediwgB,
did at h^i resolve to attempt the destruction
and atlaiuder of ihc carl, by an act of pnrha-
inent, tu be theicfiHe purptisily madr to con*
demn bim upon accumulative trenson,*^
And then it goc^ on to shew, it was carried by
ihe tuiiiuit of the people ; and then tullows
'^ And to tbe end that right be done to the me-
mory of the deceas^nl earl of 8tralfuid afore-
said': be it further enacted, That all records and
proceediugs of parliament relating to tbe said
attainder^ be whrdly cancelleil and taken otf the
file, or otherwise defaced and ohlit%^rated, tuihe
intent the same may not be visible io after
ogen, or brought into example to ilie prejudice of
any person wbaisoeverJ* So that the parlia-
ment that enacted that reveraal did consider
those proceetliugii as very evil and unjust, aad
was not willing there should be any remain* of
such an example to future ages.
Sir, having made these observations as to the
manner of proceeding, 1 oomo now to that
which b tbe subject niaiter of tbe bill at pre*
635]
8 WILLIAM III. Proceedings against Sir John Fentdck^ [636
Sent before you, and which we take to be the convietecl, uobody can say it comes near trea-
chaiveagaiostsirJ. Fcuwick :I must crave icate ' sun, by unfair means, to contrive to putoff bic
to ODsenre, that in all courts of justice, where • trial.
any person is accused, he is to make hisdef(;uce
'secundum allei^ata ct prubuia:' it is not
enoQgh that a matter is jiruved, if it be not «l-
ledg;^; nor that it is alledi^cd, if it l>e not
proved ; but if it be both alled{^ and proved,
then it is a full charge, and requires an answer.
It it not only the law of England, but I believe
all nations, and wherever any (lerson is to make
his defence, especially in capital crimes ; tliat
to which be is to answer must be alledged
mgainst him : from whence 1 shall obsOTe
what is alledged against sir J. Fenwick ; for, I
hope, we are not cuucerncd to defend him fur-
ther than as to what at this time he is charged
with. This bill of attainder, as it is drawn, and
now stands before you, doth not so much as al-
Jedge, or say, that sir J. Fenwick is guilty of
the treason whereof he was indicted ; and that
hath prevented us from producing witnesses t(»
that, and several matters which the king's
counsel have entered upon : for though you
have permitted them to ('xamine witnesses to
several things quite out of the bill : yet, I hope,
you are not come to any resolution, that these
matters shall be thought fatal to sir J. Fenwick,
that are not so much as alledged against him.
We do not therefore think we are bound, or
ought to follow them in those things that are
totally out of the bill ; and therefore his being
{^lilty is not now the question, because it
18 not achargc upon him.
The first tiling that is alledi;cd in the hill is,
That sir J. Fenwick was indicted at the ses-
sions, for that \%hich is laid in the imlictinent Lo
be treason (which by and bye 1 shall crave leave
to be heard to) ; and, I think, nobody will say
this alone docs retiuire any answer, further
than to own the fact or to deny it : and »e do
admit that he was so indicted. 1 need not
lalH)Ur much t<» clear hini of the conseq\H;nce
of that alone ; for very often innocent persons
have been indicted and accused (for an indict-
ment is no more than an accusation) ; and this
bill, as 1 have observed, doth not say he is
guilty. When the hill hath recited that mat-
ter, it proceeds lo take notice. That they by
some unfair prevarications (for so 1 aijree they
were, if the facts allcdged in the bill are true,
which by the way hath not been yet proved,
by producing any one witness) did' obtain the
king's clemency to put off liis trial, in expec-
tation of an ingenuous confession, which the
bill tak(^ for grantc.l he hath prevaricated in,
by charging several pci*sons of honour and
fitlciity with matters of a hitfh nature, only by
hear-say ; and by usin|^ other unfair artifices
tfi put off his trial. How far it is made out,
tliit I must submit to vuu ; we think at present
tiierc is no proof of it, and by consupiencc we
are not concerned to answer' ii : but had they
prived it as fully as h is luil (though far be it j
from me to excuse such a lM.-haviour) ; — ^*
The next tiling the bill recites is. That oae
of the witnesses, who rai^ht have been |in|.
duced against hiia upon his trial, if it had |iro.
cceded as was intended, is since witbdrauQ.
I caunoi say, but Gooduum is witlidrawu : but
as the bill does not so much as alledge, tbilit
was by the means or procursment, no sor
privity, of sir J. Fenwick ; so from tlieooethit
part of the bill charges no offenoe home tqiir
J. Fenwick: for in case the same witnen
had happened to have died by the act of Goi,
it would not have been said to have bees a
good reason for this bill of attainder agaiost fir
J. Fenwick, imless he had contributed to it.
From these premises follows the enacliof
part, That sir J. Fenwick be attainted of liigb-
treason ; and in future times the act muabe
supimsed to he grounded upon the induceucst
to it. And I humbly submit it to you, Wb^
ther this bill, condemning him for higii-tm-
sun upon such recitals, will be thought to he
reasonable ?
These being the allegations of the bill, I wi
now, with your favour, come to that, wbich
they on the other side do call proofs ; aod 1
must humbly observe to you, and submit it ti
your judgment. Whether in the case where a
man's life is to be taken away, by a subsequcat
law made on purfiose for him, the pmofs in thil
case ought not to be much more evident, tbu
if he were to be tried by a law already a
being? in my poor apprehension (1 s|i«ak it
with all submission to you, Sir,) it would bctoe
much at once, to make a subsequent law to
condemn a man to death, and to do itupoo
doubtful and uncertain evidence, or rather udob
no pi-oof at all. Nothing could excuse suclii
law, hut an undeniable proof of the fact. And
therefore, surely, the position we find of Ur.
St. John's, in my lord Strafford's case, ii «f
most dangerous consequence* I am al'raid
none arc safe, if that be admitted, that a Mib-
sequeiit law may take away a man's life witli*
out any evidence, other than the private o^-
uitui or conscience of every particular Uv-
maker. He is pleased so to assert, thatitmaj
\ni done, as in Rush worth's History of thiA
Tria'i, fol. 677. I am sure if this be so, at
man knows how long his life is his owd;1
hope this doctrine shall never be followed «r
approved. Sir, we have the happiness to lift
under an eblablishment that every man dots,«r
may kiit>\v the law he is to go hy : every ose
is iMtiind at his jieril to take notice of the laws,
and to act accordin;>iy, because they mayki
known : but at this rate none hut prophets cSi
li\e amongst us.
In the next place, I would observe vhit
course they have taken in their evidence wbf
arc the kioi^'scounyel.
Firirt, They have betaken themselves lo IJNl
which is not alledgetl in th.e bill ; and we thipk
to excuse such a lM.-haviour) ; yet ^
whi-n a criminal is to be tried for that which , that this is not agreeable to a couraeof ji
wil! be of fatal consequence to him if he be i In the next place, to make out whiitklj
37J
upon a Bill of Attainder,
tsast on, ihey^ bare produced but one )>er8on
itt comes bither viva voce to speak to it ;
od 1 must tnke notice to you, that lie is not
ipoD oath. I know fery well it is not your
mine iu this boose to administer an oath ; but
1 know very well, though it is not your course
in this bouse to administer an oath, yet, I
hope, that is so far from being a reason why
Ik'n bill should pass without an oath, that it is a
fosd reason why such a hill should not beg^n
un: there is no jilace in the world uhere a
Mnmi is sentenced to death without an oath.
Id the case of my lord Strafford, the procced-
nz first was by way of impeachment, and the
TJlDeees had oeen first examined upon oath
it tbe House of Peers ; and that bill of at-
Hiiider takes notice of it, reciting that it had
keeafnlly proTcd; and, by consequence, we
may suppose, tliat the^ would not otbenTise
hiTf pasised it, that being the ground of their
proreediiig upon that bill of attainder: but for
tbe bill tu be^in originally in this place, to
ibrm such a judgment, the heaviest that can
>e pnmoiincod against a man, a judgment of
leaih, corrupting of his blood, and forfeiting all
ie has in the world ; and this upon hare nlle-
rstjoni:, without so much ns the sanction of an
iaib, is extremely hard. Mr. Porter is such a
Mfwn, that I know not how he hath gained so
Badi credit, that this act should pass upon his
karole to take away the life of a man. He
vas lately of that horrid conspiracy of the as-
tsKiuation of the king ; and shall that man,
»fao was so lately of that villainous disposi-
Md, to be engagcil in a crime of that black na-
Svrp, and not convicted by his own conscience,
bat by the danger he hail run hirosrif into, not
n much as pardoned his crime, but at this
time, if I may without offence use that ex-
prn»i<in, dniifsring for his panion ; I say, shall
tlii person's life lie taken away by his panile?
Sir, The next thing I woufd go to, is that
(wbich likewise they call evidence), Mhicli is
ai examination, as they term it, of fjoodman,
tikea betitre a justice of ])eacc : hut he was
M examined, and I must insist upon it, that
tfiotigh you permitted it to lie read, yet I did
«bHT«e you did not declare it to he evidence;
Itt you were, i presume, willin;; to lirar alt
tbiD2«, and llu-n judge whatwoidd he tlio c>vi. |
dence. And, I think, the king^s fourisel f'id !
UK press it further. Sir, as this is not cvi- |
^nee that would be allowe<l in un infciior,
wait, so, 1 hope, you will not allow it to he \
evidence here ; tor *t hen it is hke to he followed
^ other courts, who observe the proceeilings
Kreai Ihcir great rule, his only what Mr. {
Cwxhnao thought fit to write down without ;
kiog fxamined.
Nr. the uext thing they resort to is, What '
^oian swore upon his examination in ano - 1
^ cause, where sir J. Fenuick was neither .
F^7 nor present. Sir, there are, I suppose, !
^ reasons against that sort of evidence from
'■Hiral justice, that it is not admitted in any :
^rt: because tliere may be a weak defence, .'
''the petfon that awean it against cue, per- .
A. D. 1696. [6S9
haps may not, when lace to face, have the
confidence to persist in it, in case it be false,
against another ; or at least that person who
was not a party before, when he comes upon
his trial, may think of such questions as may
go a great way to discover tbe truth, may pro-
duce such evidence against his credit as may
overthrow it.
But if what is sworn at one time agaiust one
man must be always taken for truth against
all others, the trial of one of the company is
the trial and condemnation of all the rest : and
how contrarv is this to a fundamental rule ia
our law, That no evidence shall be given
against a man, when he is upon trial for his
lite, but in the presence of the prisoner ; be-
cause he may cross-examine him who gives
such evidence ; and that is due to every man
in justice.
But 1 would with submission inquire, how
they are sure that Goodman would have swore
this matter again, if he was now fi)rth-comingP
Because he did swear so in Cook's cause, is it
necessary that he would swear so again now,
if face toVace with sir J . Fen wick ? >(obody can
say so positively and absolutely ; they only can
imagine it, because he once swore it, therefore
it is possible that he would do so again:
Whereas we may as well say, he did then
swear to save bis own life ; and having done
that, and found an opportunity to get out of tbe
way, his own conscience might put him upon
flight, tu prevent his doing of it again, and that
might be the reason for the withdrawing of
himself. However, I insist upon it, that there
is no proof that it was by the procurement of
sir J. Fenwick: The bill does not alledge it^
and the proofs do not come up to it : Nay,
there is nothing offered to such purpose, save
only that Mr. Porter was pleased to say. That
another man told him, that the 300 gumeas he
was offered, and 300 more he was to have re-
ceived, were to have come fnini sir J. Fen-
\^ick: hut hearsay evidence is to he rejected,
especially against a man for his life; because
every man is at liberty to talk at large : But
Ciod forbid that that should be allowed for
fvidrnce!
The next tiling they went ufion was what
>Ti' Roesni'l ; that Mr. Oi^hton, who by your
permission is solicitor for sir J. Fenwick, was
inipnrlr^- of him what he could say to take off
Goodniuii's evidence: The words I think be
used were, What he could say to discredit
Gooehnan's evidence ; and, 1 hope, that does
no way affect sir J. Fenwick : For it does not
appear that he had any authority from him;
hut it is only sus(>ected, because he is now so-
licitor for hna, which he was admitted to after
the time spoken of. But I take the words to be
nothing relating;; to Goodman's withdrawing of
himself; but t<j inquire what he could say to
discredit his testimony, which supposeth be
would appear ; and iniports the quite contrary
of withdrawing l.imself : and if had ffone no
farther, I think, there bad been no &nlt in
that; for any solicitor may enquire up and
639J
8 WILLIAM IIL Proccedhfgs against Sir John Fenvnci, [64
down lor the acUantaj^e oi' Uts client ; aiul the [ me where siu'li an accusation tras ever agrev
word solicitor i in ports his efn|)iovntuiit. Ak
to the offer iMr. Ilou suys he matie him of a
very ffreat recomfieDCi', how far he ih (f uihy o\'
that, I suppose he can f^ire some account, if
you should please to enter into an examination
of it ; and as I find he docs not douht to clear
himself: so that sir J. Fenwick is in no sort
prove«l to be privy to Mr. Gowlman's h ith-
4irdwing himself, much less to he proved to
have had a hand in it.
There is one thin^ more I wouUl offer, and
that is ijrrounded upon the bill of indictment
preferred at the Old Uailey aj^aiust sir J. Ken-
wick ; That the matter in the very indictment
that thev have read on the other side, as it is
there laid, and as far as it hath been otfered to
l>e here proved, does not amount to treason ;
or, at least, it hath l)een made a very (j^reat
iloubt, and by some u ithin these walls : nut this
I offer with all submission ; 1 have the author
in Diy band, who is a person of note of the
king's counsel ; he hatli furnished me with
such arguments as, I hope, I ma\' be admitted
to put you in mind of without offence.
The mdictoitat lays, That there was a con
to be more thuu a conspiracy to levy war ; an
that such a conspiracy ivas ever agreol to I
treason within the statute of Edward 3, ti
within these few years."
ISir, now I must huuibly submit it to you
whether this be any tiling more : and tor lb
purpose you will please to consider, What tlii
iireM'nt bill, and what that bill of indictmen
IS : for it is not, for that Charoock was sen
into Trance to solicit forces ; but only tliatsii
J. Fenwick was at a meeting, wheru they ilii
agree so to do. Calhn^r in foreign forces ii
levyinij^ war, but conspiracy to levy warisDol
treason, unless if be actually doue : a coii<
spiracy to call in foreieo forces is DOtking
more. And therefore I humbly insist upoo it,
That neitlier by tli is bill, or by the indictiDcnt
recited in it, or the proofs offered beibre you,
any thing is ebarged, but only an agreeiueal
at the meeting mentioned by captain Porter, a
single person, aud he not upon oath, to call
in foreign forces. For he only says, Tbal
Charnock told him he had been in France. ]
shall not trouble you any further ; we have
not thought fit to produce tiituesses, ir.r Un
apiracy and agreement to call in foreign [lower, i reasons 1 have ottered: tor that we do wsk
find, that sir J. Fenwick throughout the bill ii
chargeil with being guilty of treason ; sod M
are not willing to enter upon the defence of a
matter not charged upon him. I hope, Sir,
you will not make a preccdeut, That where i
person is indicted, and ready to abide bis trill
HI the ordinary course ot justice, as sir J.
Fi'uwick now is, that he might be taken out of
the hands of the ordinary iudges, and be
brought to this bar, to receive his trial here.
.\ matter of this nature may be of very grot
and to that puriiose to send Charnock to j
France ; but tue indictment does not say, That .
Charnock was sent, only that there was a ,
uieeting, and an agreement, and a conspiracy, J
to send him : So the indictment does not lay {
it as a thing done, nor docs the bill charge it so*; :
but ouiy takes notice, That he, 1 incin sir J. j
Fenuick, was indicted f'>r conspiiing and ■
Agreeing to call in a foreign force ; so that ''
this bill does not say that Charnock was sent. I
Aud I appeal to you, AVheihcr it he proved |
that he was sent: For Mr. Porter sa}'s no I con.s(npieucc : \M' know at present ufjon uint
more, but that there was a meeting at the i ground \«e stand *, for by the statute ofEduard
King's head, and he named sir John Fenwick . .'{, we know what is treason; by the Inusti*
to be one" who was present ; and there it was, | tutcs ot' Eduard 6, and the late act of treason,
be savs, agreifil, that Charnock should be sent j we know uhat is proof; by the statute of
iiUo ("ranee. Now, if there u as nothing more ; Magna Chnrta, we know we are to be tiied,
tlian an agreement aud conspiracy to do it, and j < per legem terrui et |>cr judicium parium;'
no tnriher act, hut such a meeting to do it, hut i that is, a peer In his peers, and a coinmoocr
tlie person was not actually sent, or, at least, by a jury: hut* if hills of attainder come iolo
not provefl to be sent ; then, from this learned fashion, we sIklII neither know what istn-asOB«
author's opiui ui, 1 insist upon it, that this is what is cvidenco, nor how, nor where we ire
not a sufficimt overt-act of treason. In the to be tritMl. Sir, I submit it to you, aud hope
late case of my lord Russel, whose in noceucy is this hill shall nut ])::s<<.
vindicated by this author, he takes notice.
That a conspiracy or agreement to levy war is
not treason, without actual lev\n);r ^'or ; ^"d
of that opinion was my lord Coke, and my
Lord Chief Justice Hales. A conspiracy or
agreement to call in foreign forces, unless ac-
tually done, i\Y a person, at least, actually sent,
Sir i). Slwfvcr. Mr. Speaker, I air. of coun-
sel for sir John Fenwick, the prisoner at the
bar : and first, I :im humblv for to thank yoa
tor your i^ndoar, of whicfi 1 ha\e hud fiv-
quent experience ; and humbly beg for myMt
That if 1 ofler :)ny wordb that are iudcctni,0f
unlit for me, tl.ai*you will interrupt me; tiirii
or sori^ething more than a bare agreement for | is furthest from my intention so to do. Th
that purpose, is the same as a conspiracy to | bill that is hrou;rht into this House agaioitflr
levy war. And is the case of my lord Kussel, John Fenwii:k, is that whereby even twed
the proof being only. That In- :in(l others met \ \ou (with suhmi^lon) ai-c to declare and pit-
together, and ag^ee<l to seize upon the guards, ' * '
and levy war, wliich he never actually did, it
is insiiScd upon by this author, that that was
not treason ; for tliat iDdictment went no fur-
ther, lad therefore my mUior says, ** bhow
i \ou
I n((unoe, That he shall hi' drawn, hanged, Mrf
quarteretl, as a traitor. ^\nd the quektioo bl*
fore you is, U hetlur you will do this in thil
case ?
Isiir, I shall not pretend to questioDf nor Odfl
041]
tipan a Bill &f Attainder.
A. D. 1696.
[64S
nio mny debate or ar^meDt io this tbinc;^ con-
oemin^ the power of parliameDts : no question,
but ill all f^vemments, there is some supreme
power ; aocl by oor constitution it is 'lodged in
the kiofi^. Lords and Commons. There are
precedenta of attainders, and that many ; but
can they shew me, where there bath been any
attainder by parliament, for bigrh- treason, upon
one single act, which, if treason, was determi-
aable at common hiw ? There have been hilts
«f attainder for flagrant treason*!, and for great
■uaisters of state : some topping sinners, who
Wfe been above judges and jury, and whom
bferior courts could not tell what to say to :
kit I believe 1 may say this. That for a single
cMmlt or agreement between four or five pri-
me gentlemen, in a private room, in which
llafe was no danger, but by the consequence
tftbe revolntion, if it was put in practice, no
Bttcan shew any precedent for attainting any
ymoo in parliament.
If you please to observe, the 35 EJw. 3
iBMTes the power to parliament, to proceed in
tmioD not expressed within the statnte ; but
M to tbe compassing the king's death, adher-
iif to the king*s enemies, and those things
tkit are there particularly specified, it sceons
the sense of the parliament to leave them to
tbe rules of the common law. So 1 Hen. 4.
No. Ii4, upon the roll it is at Itxrge complained
tf aecosalions in parliament for treasons and
ftbaies, and declares for the future, they
iwuid be determined in the inferior courts.
1. This was occasioned by sir Raw, IlaiToy ;
Cotton's Abridgment, 189.
Tbere is a melancholy precedent or two of
liogie acts of attainder ; but they are roost of
tbnn reversed. Sir Thomas Haxey in Richard
tbe tod's time was attainted for Imnging in a
Ul into the Commons House against the pre-
rqpitJTe; but 1 Hen. 4, it was rcvei-se<l with
p^ censure, C(»tU Abridg. 3G2, 363. There
ue sthers in Hen. O's time, but they were fur
ietsin that reign, which were questionable,
^tlier or no within tlie statute of £dw. 3,
iDfl were for such actions, as perhaps were
■til for the honour of the prince, or good of
the goferuinent, to disclose by public trial, as
the attainder of the queen, and others con-
I b^ leave to repeat the words of a great
•■tbor, the bishop of Siili.Nbury, in the History
of the Reformation, which I crave leave rather
tido, because it hath been approved of by this
Bouse, for he had thanks of tlie parliament for
it; fol. 359, 360. where 8|>eaking of these sort
ofitiaindera, he says, " After these executions,
Mioweil the parliament in 1539, in uliich
tfcwe attain'lers were not only confirmed, hut
diffn others were made of persons in custody,
without bringing them to trial;" (and ho
^%) " which cannot l>e enough condemned
*• breach of the nio&t sacred and unaltirahle
'rin of justice."
That of the marchioness of Exeter, 6cc. T
Aafl make do paraiibrase upon it : there is no
fKHkm but vou will agree, and I roust admit,
VOL. Xlfl.
Sains Populi to be Suprema Lex ; but for an
act, liot the last of May, but hist May was
twelve months, the danger passed, the |»ersona
executed that were concerned in the great
ti'eason, and all ilanger that might have lieen
from that act gone, an<l no fear now concern-
ing it, 1 hope ycu will not use the extraor-
dinary power of the legislative, to punish for
that tact which may be punished hy the ordi-
nary rules of law.
1'he reason suggested iu the bill is. That it
is impossible to have this gentleman tried by
the rules of the common law ; for otherwise
there is none : for you will not waste your time ;
and if the doctrine that was broached here yes-
terday be true, there is no occasion to trouble
you now; for according to their doctrine,
there is legal evidence, and there is no need of
a bill of attainder ; but taking that for granted,
that we must do ; otherwise there is no reason
for this bill. Then the -bill says, That Gooil-
man was an evidence, and that he is with-
drawn ; which I must observe, is neither laid,
nor proved to he by the privity, consent, or
procurement of sir John Fenwick. There is
no pretence of it in the bill ; no insinuation of it,
norany evidence to that purpose. Then sup-
pose Goodman is withdrawn, we may presumo
you will not pass a bill to put sir John Fen-
wick in a worse condition than if (aoodman was
present, if he had been ready to have sworn
the same thing.
In case you do pass this hill, you do put sir
J. Fenwick in a worse condition than he would
have been if (jloodnian uerc here : perhaps it
might have been reasonable to have an act
passe<l, that Cloodmnn's dq;o>iti(Jiis should be
read at the trial, if Coodman was withdrawn;
but we hope it cannot be a reason to condemn
sir J. Fenviick of hij^h-treason uidiout tnal ;
for the conRe(|uence of this is (if it were by hia
means), that he is punished greater than the
thinsT requires. For if Goodman was here, sir
J. Fenwick would have had his trial by a jury,
the benefit of challenges, exceptions to ilie
array, mi^ht have challcng«'d upon account of
favour, it any of the gran»l-jury had been im-
panelled ; had his legal exceptions to the tes-
timony of the witnesses ; uiii;ht have these
witnesses examined upon oath; might give
evidence upon oath to it; and ail this he is de-
prived of: so that now he is in p. worse cuntli-
tion, hy Goodman's obscure, than if he uas
present. We insist upon it, thciefbre, and
submit it to you, whether any punishment can
he imj)OKed by the legislative power, but only
(o supply that' defect, and put ilie ca^e in the
same rircum stanches it woutt! have hi^en, if sueli
a misrnvriaq^e had not liern coinmitteil. Hut
this hill is to condemn him to deatii upon the
oath of one witness, thoui»h thirc uas yonraet
of parliament last year rniuircs tuo. With
suhiuission to tlw-ir judifnuMit, it was the law
of the laud l>efore t'ttiit ; and in all e.ises, where
trials are ' per testes ;' aiul it is the law of (lod,
and the law of the wlndo worhl ; ;ind no luw
allows a roan to be coiidemncd hut b^' two ^a-
ST
643J
8 WILLIAM III. Proceedings againH Sir John Fenxokh^ [64^
and the reason that here one witness is
admitted, is, because he hath I he beneGt of a
jury, aud challenges to them, who the law
auffposes are privy to the fact, and therefore
are to come from the Ticinage, from the
neiirhbonrhood of the place where the party
dwislls ; and for that reason, in cases of felony,
where no statute interposes, the law allows but
one w itness. Natural reason requires two wit-
nesses in case of so great crimes, because that
one witness can he no rule to guide your
judgments; one affirms, the other denies ; this
is equal ; and presumfitiou ought to be on the
side of innocency, rather than otherwise ; but
we ho|)c, in this case, it will not be thought
reasonable to pass the bill to condemn sir J.
Fenwick for treason, and to condemn him to
the basest of executions, upon the testimony,
na}', upon the parole of one witness. And it is
no more than W Goodman had been dead, then
you would not have done it. If Goodman and
Porter had botli come to this bar, you would
not have done it, but hare referred him to his
trial at the common law. Mow what is there
pretended by them to induce you to judge the
oontrar^, or at least without so much as an
allegauon in the bill, that sir J. Fenwick pro-
cured his withdrawing? I propose it to your
consideration, Whether there be any proof
that Goodman is withdrawn ? He was once in
CQstodv, let out upon bail, the prosecutors ap-
proved the l»ail, he never yet called upon his
recognizance ; nay, there is not one tittle of
evidence, but that Goodman may be in the same
lodging where he was : and then suppose,
when you have passed this bill, Goodman
shoujil apnear ajfain, and contradict his testi-
mony he lias eiven before ; then it may be too
late for you to do rij^ht to sir J. Fenw'ick. It
is not su much as offered that Goodman could
not l)€ fbiiiut ; thoy offered a printed procla-
mation, uhich lam snre the king's serieant
will not allow to be any eviilcncc. Whether it
ptissiMi tlir j^reat sral before it was printed, or
wlieiluM- it |ns«!iMi ii at all, non constat ; for it
was not n*!ul ; tiny wavetl it. It does not ap-
pcii.- sir J. I'tMivuik oonwnlcd, or procured
(jo<iHm'iirs \tiili(lra>yinsf ; he could not pro-
cure it, for lie was u prisoner, and so not likely
to aft'tct it, being a prisoner, especially for
his life.
As for my lady Fenwick, whether she did
so or not, 1 am sure you will be of opinion, it
ouifht not to oireet sir J. Fenwick: suppose
Cl.iui y a sti-an;rer to sir J. Fenwick, and in
trulli lie never saw him : or sup])o^.» liini a
friend, and tie otiiciniivly did what he did ; he
ought to answer for it;' and I think he hath
nn«!rr^oiie the punishment the law tlmiitrlit fit
to iTiliui in iliat ense ; it is his own crime, and
hy tin- rules of just ire. no man's crime oiiglit
to tend to (he punisiinieiit or misfortune of ano-
ther Uiaii: ilie ad of one criniinal, tiiouulit to
he a party, or aeqiiaintaiice, or a frienti of sir
J. ri-nwiek's, <»Uirlil inU in affert him, nor
noiNMly iiui the actor ; it is he that hath suf.
fercd for ii.
And what hath been said in thatnmtleroogh
not to influence your judgments ; for it is no
improbable, but what Clancy told Porter ii
false ; yon wilt never a1k>w hear-say, nor per
mit your judgment to be governed by an}
thing but what is certain, and bath all tlic
moral niles of persuasion : hear -say nai
never, by any hiw, in any conrt of the worVI,
allowed, nor indeed believed in private con-
versation.
As to my lady Fenwick, there is this fur-
ther, That husband and wife, in respect of
crimes, are distinct persons ; and what ooe
docs cannot affect the other, no more tlian ibe
deserves to be executed for %vhat sir Jobo
Fenwick did : aud as to what Porter says cno-
cerning it, it only relates to himself; it prorei
no suggestion of the bill, whidi is, That Good-
man is withdrawn, because a stranger to sir J.
Fenwick (and it must be so in coustmctim of
law) made an attempt upon captain Porter;
therefore Goodman being withdrawn, there
was an attempt upon him, and by the cum
person, and by the same means : this is no evi-
dence ; it carries no logic in it, and will oot
prevail upon your judgment.
We ofier another thing to yonr cons-
deration : it is said, that one Roe was spol-e 19
by a solicitor of sir J. Fenwick's, Whether or
no he could say any thing to the discredit of
Goodman, as to his robbing or clipping P The
asking of that question was lawnd ; and to
desire him to testify it was lawful : I mat
agree, to offer too great a sum*of money may
subject him to an information in the Kiog''
Bench ; (but IMr. Atlorney knows that bnt)
but God forbid it slioulfl afieet sir J. Fem;ick^
Mr. Dighton was not his solicitor at that time,
not ap)K3inte<l, nor had any liberty to coioe to
him ; besides, it cannot be an cvidenro, uor
cannot induce yon to bclicre. That the sanM
person was instrumental to «^ away GooJ-
man, because he asked Roc, if he knew (iooJ-
man to be guilty of those crimes ; for there ii
no evidence, that he asked him to persuade
him to withdraw himself.
There is another thing wc could offer to yoa:
there is no proof of that, which, upon the' tint
reading of this bill, was aimed at, to be pn-
nished with greater pains than the common itw
inflicts, and tiiat is, the giving of false paneii
and accusations against great persons ; tney
have not attempted any thing like it ; so that
that is to he taken as if there was no sudithia^.
Neither is there any proof of protractinj^ hit
trial, b}' any promises of confession or disco-
?ery ; they oi)entd it, but did not attempt the
proi»f of it, but waved it.
liut take it to be so ; I ho^H; you will not patf
an act to at'aint a man for making a false ae-
cu«;!tion, whieli only incurs an action of &aa-
dalum Mai!nnluut, or tine and imprisonmcit
upon an imlictinent; and, 1 hope, you will nrf
anulemn him to a i^reater punisliment, wben,il
the time he did it, he had no notice of tltf}
punishment. Tlic design of the law ts to it
fluence men by fear of penalty ; and how CH
hl5]
tqxm a Bill of Attainder.
A. D. 1696.
[646
lal be, when penalties are not known at the
uie the fact was committed ? I speak with
abmissioD still ; it seems not just, that I should
Drbear with so much caution, from an action
hat exposes me to the penalty of ^OL as from
in action for which'the law says, I shall forleit
ny life: now. Sir, in this case it mif^hl he ex-
[MKted that he should incur the penalty of fine,
[Hllorv, and imprisonment; hut not that he
could incur the |»enahy of death.
Then, Sir, as to the protracting of his trial
\j luch promises of confession : certainly the
iiuttiog^ off his trial, in itsellj is so fur Yrom
beiDg- acrime, that it cannot be thoufi^ht but law-
ful: it is every map's dutjjr, upon the principle
of ielf-preservatiou ; and it was at the liberty
of the government and ministers, to do as they
ibougbt fit in it.
Id the next place, we do insist, that tiiere is
no treason alled{>;ed nor proved in this cose :
there is no pretence of truth nor charge, in re-
ipeet of the assassination ; nor of buying of
smu or liorscs, tlicHigh mentioned in the indict-
meat: and if sir J. Fen wick had been to have
been tried upon this indictment, and they had
bad both these witnesses there, all tliat could
baielieen proved, must be of the consult ; as to
tbe rert, he must have been found not guilty :
and 1 believe it is most notorious, that the whole
company there could not have raised what was
Ulksdof. Now, as to this single act, it hath
beeasaid, that a conspiracy to levy war is not
UMioa : My lord Russel was atUinted for it,
aad that attainder was reversed upon tliis very
sceoont, and the act declares the reason of it,
be being denied his lawful challenges, and by
Hiaiaed construction of treasons he was unlaw-
fnllv convictifl of treason. Now the overt-act
iaUie h.dicUnent was this, that my lord Russel,
ud others, did consult and conspire to seiae
tbe king's guards: the proof of it went further,
tbttthey sent sir Thomas Armstrong to view
tbem and seize them : but then the question is,
■bether the consulting to send a man to invite
Amifn Ibroes, is any more than a consult to
Mj»e the king's guards ? We say each are
levying of war, and it is not within the clause
of sdhisin^ to the king's enemies ; for they
lUK be either present aiding and abetting it'
tbcn, or sending them money, arms, and am-
Buailiuo, and tlie like; and 1 think, for that, I
■ty appeal to your act made against corrcs-
pmiog with the king's enemies; which, I
uppoie, if the law before was otherwise, it
onded not to have been made. Now here is
•olv a consult and agreement to do this act.
It bath been questioned. Whether tcribere
«f "ffre f But here it is only m'UUrt ; nay,
A is aot so much, it is only agreare mUtcre ;
Ki nieo had between them a little private dis-
Mvse, and at last one of them did agree to send
Uaraock to France : The question is, whe-
m the law of the Und will warrant this to he
iMMSB ? And if not, then you must not pass
lis act upon audi a single luiint. Dr. Stury 's
Mn is dtoicd to be kiw ; tliis case is no more
bM that IB nj lord Dyer, for writing a letter
to invite the Spanish king to invade England ;
and it was a time of great fear of them, as it is
of tlie French king now ; and he was attainted
upon that, but that judgment hath been ques-
tioned and denicil to be law. My lord Hales
expressly, in his Pleas of tlie Cruwn, says, that
a conspiracy to levy war is not an overt-act of
the king's (leatli ; and thai attempting to levy
war is not treason. Now the sorts of treasons
are these three ; compassing the kius^'s death ;
levying war; or, adhering to the km j^'s ene-
mies. Now for compassing or agreeing fo levy
war, to apply that to 1m* an overt- act of com-
passing the king's death, hath been always
complained of as a strain of the law.
Upon these reasons, we think this would not
have been an act of compassing the king's
death, as laid in the imlictmcnt; and then if it
be but a question, whether it he or no ? u e hope
you will not proceed in your legislative, es|te-
cially when he is deprived of the advantage of
insisting on this at his trial at common law :
witnesses are there upon their oaths ; he might
have had a challeuKC to the jury ; he might
move in arrest of ju(igment. Now the questioa
is, whetlier you will pronounce sentence of
death upon him for high-treason, upon one
single act, a year and a half ago, just after the
act of parliament for regulating; trials in cases
of high-treason ; and if wa had had a trial at
law, we should have canvassed these things, if
we had \y itnesses u|Mm their oaths ; for the
pardon reached the 29th of April, they could
swear no new discourse but just in May ; and
now they say it was in the middle of May ; if
it had been before, the king's grace would have
exempted sir John Fenwick from punishment ;
and these things we should have had the ad-
vantage of, if we had had the liberty of a trial.
There is another consideration ; sir J. Fen-
wick hath pleaded, and hath so pleaded to
issue, and issue is joined, and a Venire Facias
is awarded. Now we submit it to ^-nu, whe-
ther you will thiuk fit to take it out «ii the hands
of the common hi w, when there is no exti^or-
dinaiy necessity? And the considiTntiun we
have to offer to you, if you do not cast out this
bill, if we should have the good fortune, as we
hone for in amMher place, sir J. Fenwick stands
still liaMe, ami must submit to his trial, if the
king's counsel think fit to prostmitc him, nnd
we think it hard to undergo your censure, to bu
condemned in this place ; and if (i-crhaps) he
he acquitted here, to nnden^n the liUe danger
in another, and then to be tricii in a tliiid : and
for these reasons, we hoi>e, you will reject this
hill. ,
8orj. Gould. May it please you, Mr. Spc'aker,
I have hearkened to what these gentlemen have
objected, nnd could not he aware uf all they have
said ; they have enlargnl u|>oii sc\crul to|»ics ;
1 shall recollect them as well as I can, and an-
swer them in the uu'thod they have taken. I
never did think, that the parliamei.t \touhl take
things out of the ordiiiury cotirse of justice,
nor atbiint any of treason, unlrsv in cases ex-
traordinary ; and these gentkruiun hate agreed,
047] 8 WILLIAM m. Proceedings against Sir John Fermnci, [641
that in cases extraordinary they have done it.
They likewise have agrreed, and sir Bartholo-
mew Shower has told you, that there are some
treasons, by the statute of 25 Edw. 3, re8er\'ed
by that act, to be declared by parliament. Sir
Thomas Powis says, This is taken out of the
ordinary cuui'se of justice : So says sir Bartho-
lomew Shower ; says he, here is an indictment
before you, the party hath nleaded not guilty ;
and they say he may be tried in the ordinary
coarse of the law : and therefore they look
upon it as improper to bring' it here.
The grentlemen arc mistaken very much, to
think that I did say, that the exammation that
I said was evidence here, would lie allowed
below. If I had thoupfht so, I should have
thoui^ht at the same time, this House would
not nave meddled with it : but f do disagi-e^
with thom in this ; and take it, that where a
case is extraordinary, you will come and med-
dle with the matter. Here is au abominable
treason, that is agreed on all hands. Here is
plot upon plot ; here hath been a plot now to
take away the kiii<t's evidence ; there was two
witnesses in the beginning , and it is very plain
that one of them is not here ; for that here was
a proclamation produced, and I did look upon
that matter as taken for gfranted, that Good-
man was witiidrawn, and for that matter they
may be easily satisfied. They say, we have
not' iiroved I'lic sugyfestious of the bill ; but
we think we have : for first of all, captain
Porter bath here sworn it expressly ; it is not a
ihin^r of looso, baretalUin^if, but hehath proved
a delilKnito ami forntcd conspiracy ; he hath
pr()Tti<l, tlii'tt it was actually ai^reed upon a firet,
and at a srconil liiuc ; ai:d that Charnock was
sent ill onkr to llin execution of it : an«l what
was it lor ? It was plainly to dc^posc the kinjr-
lie tells yon, f*;r tliat purpose they had de-
sired «,000*^ foot, 1,000 liorso, and 1,000 dra-
goons iVuiii iUi'. r. cuch Uir.ij ; and these gen-
tlemen a£»roe(l to join tiu'in. Now can there
be a greater evidt^nee ol'deposingthc kinp, and
conseqiiitly of iinapcininij his death? It is
an cvideiiee* of xUn iiua<;iiialion of the death
of the king, as writ as of the rebellion ; it
hi'iuix s(» in the ni'cessary ronscquence of it.
Nuw, 1 1 111 Ilk lie h.itii fully proved that. Then
we oiler to \on, how far ym will allow of this
examitiatioii : \\ hy i* btcanse upon a secon<l
coutrivanec licre is a witness withdrawn : and
can We j^ve you jrrcater evidmioof that than
we have gfi^cn :* ;u' have proved that there
was taniperinu', h t the thiiiuf nm as Car as it
will. Ca;/tai:i Pnrter was dealt willi, had 300
guineas in hansl, anil ;}00 more he was to have
remitted to l:ini ; and wos t«) have SOOi. a year,
whereof sir J. I'enwiek was to pay one. It
does follow lifter, that he is withdrawn : we
must leave it to this honourable llousr, what
construction you will make ol' thai ; W bother
here is i.oi li second plot ?
Ni'W this in.itter is brought before this
hoiiournhio House, wc have gone so far in it,
astoproduer Cioodinan*s examination that was
taken before a justice of peace: we have shewed
you the evidence that he bath girea nmm
former trial ; and now he is gtme, snre nolwdi
but must justly infer, it is by sir J. Fenwick^
means : so that here they ha?e taken awtj
the evidence that is necessary in the o^
dinary course of proceedings. In such an,ex<
traordinary case I think it hath been usual for
the parliament to interpose : therefore, what
they pretendeil, under favour, tliat this sbouM
not be evidence, is all taken off. For now we
are in parliament, you will make use of sack
informations as can give you any light into the
matter, and may obviate and curethe distemper
that is upon us ; and you are judges of vonr
own methods, and how fa csu* J. Fenwickhatli
been concerned upon the instances we lure
given you, that is in your judgments. Asht
what sir Thomas Powis tells you ; says be,
tbir power hath not been executed by padia-
ments very frequently, but it hath gewrally
been doue where persons are withdrawn fnm
justice, and caimot be come at in the onlioary
course. Why, we are in the like case ; if m
be we cannot come at justice in the ordinary
course, and that by our evidence having kes
tampered with, and drawn away ; thea, 8ir,
under favour, by their own arguments, it ii
pro|)er to come before this honourable House;
so that notwithstandin||^ what hath been aaiil,
we do think we have given you evidence.
And as for what they said, that we hareDH
given any account that sir John Feuwick, by
giving assurance of his confession, had piv>
traeted his trial ; for that I did appi}' myself,
that Mr. Vernon might give vou an aecowit ot
it: so that ufMrn the whole 'matter, we uiust
leave it to your ronsideration, and hope ne
have given you goml satisfaction, thattbtre
hath been a great plot against the government;
and there was no evidence of any other niatlrf
before the judges, ami they allowed it to be
hiifh treason. Here is the same eriilence,
only we have not one of tliem virta voce,
Serj. lAToeL Mr. iSpeaker, 1 shall not troaUe
you nor the House very long ; but I humbly
ho|>e, with a little pains, to satisfy ilie Houfe,
that most that hath been said on the other 9^^
is not much to the purpose. Sir, I will coo-
sider, with the leave of this House, whalibe
common law was l)efore 25 Edw. 3, and lio*
the law does now stand ; and draw some coo-
sequences from thence, and the necessity ol
this case.
The statute of 25 Edw. 3, I must obserre it,
is not an enacting law, it is only a law decla-
ratory ; for all those particular instances of
treasons that are mentioned there, wcretiva-
sons before that law was made ; an«l so, by
the preamble 4>f it, plainly appears : hut tbc
judges had a gi-eater lilnTiy upon constnictivt
treason, and i!jH»n accumulative treasons ; WJ
that was left too much at the discretion sM
lil>erty of the judges l)elow, and theexectfi*^
powei- of the law.' Then that statute coineiii*
restrains the judges in that point; and Uf^
that they shall not gi\c judgment in any csn
of treason, but only in these cases paiUcobfij
.9J
upon a Bill of Attainder.
entkmed there: and that statute says, that if
ly frtlier matter which shall be thought trea-
a should come before them, they shall not
meed to jadement, but acquaint the kingf in
iriiameot with it. I only make use of it, to
rote bow treasons stood before that act, and
ow it eomet to be altered from the common
iw : and I am sure it is not to be denied, but
hit one witness was sufHcient at the common
aw: but then comes 1 Edw. C, c. 13, and that,
br the security of the subject, does ordain,
nst in cases of high-treason tiiere shall be
two witnesses of the fact : but that statute does
MA liter, but was made for the security of the
nbject in point of proof. But in that statute
•f 1 Edw. 6,c. 18, that does provide there shall
be two witnesses in cases of high- treason,
dltfe is an exception of treason for counterieit-
y^ tod forging of the coin ; and that is the
itMOD that the law is taken now, that though
1l»re must be two witnesses in the cases of
Hber treasons, yet in the case of coining there
seeds but one. Tlie offence or crime is never
liw ifreater, because there are to be two wit-
BOKs to prove it. In this case that !s here be-
lure you, we come to desire your help, because
ene of the witnesses is by art and fraudulent
nctni withdrawn : Does that purge the crime
at all, or lessen it ? No man wUl say the crime
ii lees, but it does prevent a regular trial before
tbe oDurts below ; and that is the reason why
we did come here ; and we hope this defect
ibit be supplied by a sjiecial law. But, say
ibef, it is very bani a law should be made ex
M facto to take away a map's life. It would
■e very bard, if the case was as they have
Mated It, to make a crime fx post facto that was
sot to before : but I do not take it to be hard
<br a law to be made to repeal another, to mnke
s matter triable that was not triable beibre.
^unpose a law should be made, that all trea-
•Mu from and after such a time, suppose from
a time before the fact is here supposed to be
ceamitted, as May was twelve months, should
be triable as at tlie common law ; no doubt the
parliament may repeal a law in part, or in all.
no man can , say but sir John Fen wick might
be tried at the conimou law by one witness,
befiMe tlie sUtnte of 1 Edw. 6. So that I do
^baerve, and humbly submit it to you, that this
lew, by the aet, is not changed us to the crimej;
H» enme it as it was before, it is only changed
!• to the number of witnesses. The instances
tbat have been observed on the other side, with
bunUe subraissicm, I think, do not reach our
ctae. We do not insist that there are two lethal
vitaesses ; we do confess the information that
balb been read is not a legal proof; but this
'loaie, in tbeir lej^islative capacity, is not to be
1 to the evidence that a jury must have
This House may take what ways and
•iCbods tbey please to satisfy themselves. Say
ibf , here is the life of a i^entleman that is con-
Mad. 1 know all goodmen will be tender of
ha life of a inan : but here is the life of the
m, aod tbe talety of the kingdom, the peace
mmkij of Hi oil, Ibat is ooDoemed in tbe
A. D: 1696. [65d
same case ; and let them put these things into
the balance, and consider which ought to weigh
most.
Yon have a record before you, of the convic-
tion of Peter Cook, who was indicted by the
same witness.
A learned gentleman, that is of counsel for
the prisoner at the bar, did make the same ob-
jections as are made now, at tlie Old Bailey (it
may be, there are some other particulars now) ;
and after all the debates and arguments that
could be used at that time, it was unanimously
resolved, that the crime was high -treason : and
if it was hi^h-treason in Peter Cook, it is no
less in sir Jobn Fenwick,. who was present at
the same time, and engaged in the same busi-
ness : for what was a crime in one, was the
same iu both.
I think it is too diminutive an expression, to
say, this was nothing but a little twittle-twattle.
Tliey did there meet upon a solemn consulta-
tion ; and not only once, but they did meet a
second time ; and what was it to do ? It was to
invite a foreign power to invade this 'and, and
to make war with the king and kingdom ; and
they did promise and solemnly engage to assist
them with armed forces; and it was > proved^
that they did agree with Chaniock to go into
France ; and Chamock was not willing to go
the first time he was desired, till he found tbey
were staunch and steady in their resolutions ;
and upon a second meeting they were all found
so, and then he would go : I think that is an
overt act of treason, if there be any. And when
he came back, be said he had been in France,
and brought an answer to the message he went
about: This is all now laid before you. But,
say they, this is an extraordinary case ; I do
a^^ree it; but because it is an extraordinary
case, and for the safety of the king and king-
dom, it is fit there should be an extraordinary
remedy.
They ask, what mischief it would be if this
gentleman should be left to the ordinary course
of law ? It hath been the wisdom of au ages to
make a law, to punish such as by their artifice
would evade the law. Here is this gentleman^
as we say, guilty of high-treason ; but that we
submit to you.
This gentleman was in the prosecution of
the law, and might have been tried in the re-
gular way, and had the witnesses upon their
oaths; (the grand jury have found billa vera
upon their oaUis) but we must appeal to a wor-
thy member of the House (who because he was
a member we did not call uiK>n him) to give you
an account how he did delay and protract his
trial ; and now they know he cannot l>e tried at
all, tbey pretend he is willing to be tried : and
because be cannot be tried, tbey would have it
as an argument that he should not be punished
by any other means.
Sir, if- so notorious a crime as this is should
be committed against the body of a nation, and
go unpunished, either in the common course,
or by some extraordinary methods, the nation
would be io »doubtftil aod daiigeroua e&fe.
When this House hath passed their judg-
ments in this matter, it will go to another
place, where it wilt have another examination ;
sjid it will have that refjfnlar consideration that
all other acts have. We are in an extraordi-
nary case, and do think, that this extraordinary
case does deserve an extraordinary punishraent.
Sir B, Shower. I heg pardon but for one
word : no man docs abhor such consults more
than myself; but I do not think, that discourses
are such an overt act of high -treason, as de-
serves the punishment of death.
Sir John Fen wick and the counsel then with-
drew. And being withdrawn.
Admiral RusseL I think this may be a proper
lime to ask quctstions : if so, I think myself
euough concerned to trouble you with one or
two. I think, in Uie paper [meaning Fen wick's
informations] that hath been read, I am men-
tion^ twice. These are the questions I de-
aire to have asked, what proof he hath of
this ? whether ever he saw——*? And, what
proof he has that 1 sent captain Lloyd over,
and that I gave him a list of the ships ? And
that 1 said, we could not fit out SO shi^w in
May ? aud whether or no, since this revolution
he hath had any conversation with me ?
Col. Crawford, What that honourable per-
ion savs, calls me up ; my name is mentioned
in air J. F.'s paper ; I desire you would ask
651J 8 WILLIAM III. Proceedings against Sir John Pentoiek, [6S!
Col. GranviL I desire he may be asked
what proof he can give, tliat my lord Bath wsa
to betray Plymouth into the hands of kin^
James, or the king of France ; and whatevei
else my father is accused of in that pspcr ?
]\Ir. Hurley, J humbly propose it to yoa
for the roctliod of your proceedm^ since yos
take this method, whether it will save joo
time for you to look upon that paper, aud uk
him as to the several parts of it, wnat prooTbe
can make of it.
Mr. Howe, I do not oppose sir J. Femtick*!
being examined to this paper ; but it mjJA
have been more to your credit, if you htd ex*
amined him bei'ore your vote : [a vote made
a little before, by which that pajter was cod-
demned]. But here are a CTcat many gestlsf
men rise, to ask a man to that which be doci
not pretend to any proof of. The best nay for
saving your time is, 1 conceive, to have tbeie-
veral parts of the paper that does conccro
these gentlemen, read to him: and to ask kiia
upon what grounds ha gave the king tbat io-
formation. This will lead him into all tbat be
knows of the matter.
Mr. Bogcawin. I am not against the ques-
tion tbat is proposed last ; but you inav ask
him tbat at last. But there is a nnble lorU tbt
is reflected on in that |Kiper, and that is my
lord Godolphin : I desire you would please i«
ask the same questions as to him.
Lord Coningsby, I did inteud to takt* care
of my lord Godolphin; there is a hard reflcC'
tion upon that noble person ; but under favour,
you must, I think, let liini know you liriwsucb
a paper ; and then ask bim in irt-nt^'ral, wliat
proof lie has to the particulars of that paper?
And then you ^ill do inj(ii»lico to nobody.
Mr. Norris. There have been several quel*
tions moved by several worthy members ; aud,
1 think, the questions ought to lie asked: but,
1 think, there is one previous qucstiou to ail
these : and that is, when you tell him tbat you
have such a paper, I think the first quesikn
should h(>, whether ever he delivered tliuae
papers to tliekiuirp
Sir li. Deluval. I And I am named in tbat
paper that sir J. F. hath given ; I desire that
part that relates to me may be read to bini ;
and that he may ^ive a reason why he balb .
said so of me and Mr. Killigrew. ■
Lord Walden, There is another mentioned,
and that is commissary Crawford ; I desire be
may be asked, what proof he hath, that be
gave Mr. a list of ihe army ?
Chancellor of the Exchcijucr, I can't blaM
gentlemen for asking questions that conccn
them or their friends : some are for reading if
it to him, 1 am against that : but yet I would
haye you to enquire into this naper. Aai
being you intended to do it, it miufht have heM
as well enquired into before Mr. Digbton cast
last to him . 1 think you may put yourself idi
an easy method, and avoid all leading fMip
tions ; and ask him u(>on every name ui tM
l>aper, as you come to it. What be kBpwvW
thatgoDtieman? ADdaskhuBUPOllMrqiMfliU
him, why he mentioned me in his paper, as he
hath done ? And that you would require him
to make proof of what he says in relation to mc.
Col. Godfrey, I desire some questions may
he asked him in relation to a nolilc lord, my
lord Marlborough : if he be guilty, 1 would
have it known, and 1 would as willingly have
it known if he be innocent, as I believe it will
so appear. I would have him asked, whether,
since the beginning of this war, or fr(»m the
time of this kinif's landing, sir J. F. did ever
sneak to him, in public or private ? Or ever
did write to him, or reeeive any messuufe by
word of mouth, or letter, from my lord MarK
borough ? He says, that some service he hod
Eromised king Jan^cs, inclined him to promise
im his pardon: 1 would know nhut that ser-
vice was? And in relation to his sending Lloyd
into France, whether he can, by any body
else, make tliat appear ?
Col. CrauJorJ. That gentleman hath nut
me io mind of one short question : whether
ever he conversed or spake with me in his life?
Mr. Bridges. >Vhethcr sir J. F. hath any
body but himself to support the hearsay he
hath given an account of? And I desire a
3uestion may be asked him on behalf of the
uke of Shrewsbury ; what proof he has that
the duke of Shrewsbury came into the oHice of
secretary of state again, by the operation and
consent of king James ?
Mr. Vernon. J desire a question may be
asked previous to that, because it is so in Ume ;
how he knows that noble lord was io treaty
urith king James, before he went out of the
secretary's office, when be fint came there ?
iS]
ufOH a Bill of Attainder*
Mr. Smith, 1 was staDdinpf up to the same
nrpose : I would not have you to put words
ilo liis mouth, nor let him know b}' any qiies-
un what answer he is to make.
Mr. Speaker. Crcnllemen, I am willinsf to
o you any service 1 can : but here are long
nformatious, and I never read them, nor know
be contents of them, but as they were read at
he table.
Mr. Attorney GeneraL I think the method
late'.y jiroposed will save you a great deal of
;tme', and is proper for the discovery of the
truth : that you will name the persons to him
in order as thov are in the paper, and ask him
in^oeral, Wliat lie knows of those persons?
Bot when you call him in, f am not for askin?
bin to the particular thin^ he hath said
aipunst them in that paper ; l^cause that paper,
thoDj^h it is under his own hand, is not his own ;
asft if he knew it then, be knows it still.
Col. Murdaunt. I wonH pretend to propose
aay thinf*-, only fur the shortenings of your
time: If after you have informed him there is
such a paper, that you should ask him. Whe-
ther he will own it?' And then, What sort of
proof he will brinj; to prove it? You will find
be will either tell you, he will advise with
coimsel, or whether he will give any answer
at all.
bml Cutis. 1 have only one question to.
bf^askedsir J. F. ; It is not a question that
rrhtfs to any person namefl in that paper. I
think thei-e is no one jierson that he hath
macd, but in emiuently known or believed to
beia the interest of this gfovemment; and none
bat what are in some post of trust and eni-
filoTaient in it. Then, I think it highly ne-
cesnry to know, how it comes to |iass that he
biih had so much conversation with persons of
thttchamcfer, and none with those people that
hekatb been acen daily to converse witliP And
if he hath, why he hath not discovered them,
as he hath done the rest?
Mr. Speaker, Is it your pleasure I inform
him we have the informations ?
Mr. Palmer, If I am not mistaken, when
pa firrt called sir J. F. before you, he referred
iimself to what be had informed the king;
ud referred himself to that paper, as of\cn as
VOQ asked him any questions. And if you ask
bn genera] questions, I presume be will give
Tw die same answer : Therefore, I think, it
Kay be proper to ask him. Whether this is the
psjKfthat he delivered in, or not? Or other-
*iie, I doobt be will tell you, he knows uo-
Ibiog but what'ii in that paper. Now, if he
jcftn to tiiat paper, you may ask him, if he
faowi it again, irit be shewed to him.
Mr. Sloane, What this gentleman has said,
kii partly interrupted what I was goinj;: to
*ftr ; but aa to what he says. That when he
*ii here before, be referred to his confession
^fivcred iu tu the king; we did not tell him
^kKw of that: But he put it further, That
"WasiMlbmind to accuse himself, and that
^ he md might be |^ven in evidence
im ; anifO ftr he was in the right:
A. V. 1696. [654
For if he knew of any body that was concerned
in a conspiracy against the government, that
was misprision of treason at least in him. I
don't question but it was a very mischievous
contrivance ; but if he should confess it, with-
out some assurance of being indemnified, be
proves himself to he gnilty of it.
Mr. Vice Chamberlain, You are now upon
the mathod of your nrocecdings. There is great
suspiciou whether this paper he sir J. F.'s own
or no. If you will tell sir J. F. that in the
paper in your hand he hath laid tliiners to the
charge of persons of trust, whom this house
hath a good opinion of; and that this house
desires to know. What ground he hath for it?
if he does not think fit to give you an account
of it, there is an end of your enquiry.
Mr. Jamet Montague, The house seems to
agree, that they will have sir J. F. sent for in :
1 suppose you will not have the counsel, nor
solicitor, by ; and when he withdraws, I de-
sire he may be kept private from bis counsel
and solicitor.
Lord Cults. By sir J. F.'s behaviour, when
he first appeared at the bar, and by what he
said then, I believe sir J. F. did tell you to this
sense. That be had assurance from a noble
person, that what he then said, should not rise
against him in judgment ; and I think he was
told. If he dealt ingenuously, he might expect
favour, or to that effect. I do, for the saving
of time, mention it to you, to consider how far
the house may give him security, that what he
here says shall not rise up in judgment against
him ; and that if he dealt ingenuously he might
expect some favour from this house.
Mr. Hurley, You are upon the nicest thing
in its nature, that possibly can come before
you. I think before you call him in, it ought
to be understood that the questions be very
plain.
Mr. Manley, I think you liave been wdl
moved from the other side, That we shonkl
not read this paper to sir J. F. : And I am of
that opinion from this consideration, besides
what hath been mentioned : We are here in a
judicial capacity as well as a legislative; and
this paper I take to b^ an examination made
upon sir J. F. ; and as my memory serves ne,
some things he speaks of as matters of fact,
which he does positively assert ; which being
contained in the same paper with other natters
of hearsay, if ^ou should read that paper to
him, and ask him a question. Whether that be
his paper ? That, I dooht, will be contranr to
the rules of law : Fur it will l>e asking. Whe-
ther this information against himself be true or
false ? And I think it does not become the
dignity and honour of this great assembly, to
ask him any questions that may make bim
accuse himself.
Mr. Vernon, I would observe to yon, that
he has not considered these two pspers : The
first of these papers I think the bill refers to,
and that is under sir J. F.'£ hand; and there
he does charge nothing at all upon himself, but
it is an accusation upon the persons named.
I
I
I
C55] 8 VVILHAM III.
in the first paper be does sny. There ^m a
•elect numbei to niaoagc the atHiir^ of king
J«mes, II n J ivas sent over, but lliey are
not named ; and ai\ern aids he went about to
exnbin it in the sccood ; and the bill refer ring
only to tlie first, I aLi|*pose you will confioe
J'4|ur8elves nu\y to the iirst papr.
Mr. Chan, of the Eich, I wouM ibiok of
wme w^y to recoucile these ihiojir^ you are
^oing upon : For thoui^b gentlemen are in
U»e rijfht to pres!» fcir these qtic^Lions, yel [ do
not tliink it the buMnesf U liire you. There-
fore 1 think you ijbauld acquaint sir J. F. that
this ptper huth been presented to you, which
litis house huth thought tulse and scandulous ;
But tKftbre be goes awty, this house has a
inind to Ue^r what be would say to it ; aod let
birn say what lie would upon that, then you
would not kad him by any question. The
Iirst person that is named f hafe a g^reat re-
apeet for, and aiit as witling he shonlJ be fin*
Vacated as anv. The first question that you
o&k him is, \Vhat be knows of my lord Godol-
phin ? But that you should literally ask hita
qut*s>lions» as the ]»ap€r state* it» 1 don't think
it proper for tbis as.'iemhlv to ask; tor there arc
facts *>eyi»nd the Act of Indemnity, many of
ibein. AiXcT you have done wttb fbe pnper, I
have some qaeslions to a&k him : I take tht'5e
matters to lie fatsc ; but I shall have some
^uestjoos to ask him wliitih I believe will pi-ove
true,
Mr, Bndgci. Before you call iu sir J. F. I
n^uultf fjffcT one thlna^ to your eonsideratiun : I
Uunk lliut puper you lire unon is written v^iih
luv .1. F,^s own hand. Why may it not he fit
f«r you to usk fcir J» F* if that be liifr Imnd ?
MemUrs. No, no.
^Ir. Siicttkcr. Js it your pleaiore that m
John Feu wick be called iti ?
Whieh Question being |)iit, it passed in the
atEmiaiive. And he was biMJuy^ht in ^\ithout
his counsel.
Mr. Speaker. Sir John Fen wick, tins house
does uudeiTiiund, that you have given inforniu-
lions againiil several ]»erson^ of great qunlit}',
that hare been in the government: and they
do expect irmn >ou, that you j^bould deal
clearly and candidJy with thetn, rind gfive them
an account of what you know iii relation to
those [lersons. 1 aro commandnl in the lirjit
place to ask you, What you know of my lord
Godoiphin, iii relation to this mutter f
8jr X Frtiukk. I am under a double pro-
secution tor my life : I know nut but w hat I
say may turn to my "\*ri prejudice: I Iioj»e
the liouse will not iiiink it nri t>hstiuiicy in me ;
and since tlu!» hout^e have done me tiie t'avriur
to hrar me by my counsel, I hope they will
please to f?onsiiler what they have said.
Mr. Speaker, No donht the bouse will con-
•ider what you hove staid hy your counsel, that
is, in rpference to yonr own defence ; but they
do expert from you, as 1 I old you before, that
vou do deal candidly with ihcm iti what you
iuQvr of this mutter*
Proceedings againH Sir John Fcmvklf
Sir J. Fennick, Sir, I am nudw
tji»fi for my life: and, I hiqw, ihr hmu
please to consider, thai I kri'>w Oitt what m^
cimvenitncy may come upon me by it; sad 1
hope^ the hou9«; will excuite nH\ f jr I do it oot
ont of ohhitniicy, but lor my own |»i »*vervali*Mi,
Mr. Spi'oker, Vuu would do wt^M to 4dtiM
yonrself well in this matter'; it is of fftvtt
concernment; the favour *tf llr ' fvw
deserve it, may be of' trrcui k in i ' i I
have only iu command to It'll > .u, ..,t^i tW
house ex|vect, and you are to courtlier liow ta
answer it.
!Sir J. Frnicick. I hope the lions*' will doI
IMit me upon any thin;:^ that will hurt myself
should be sorry to incur the dispkn^fure of
this bouse, hut I hope they will eouiiid«fr mf
cojiditiou ; and I am sure the juMiicf> nsm\
honour of the house is such, that they wdlint
press any inau to do auy thizig that uiay kol,
Mr* Speaker. Sir, tf you please to withdraw*,
[Aocordbgly sir J. Fen wick withdrew.]
Ijord Cutii, I would himibly propose
thing to you to save \onr time, »tid removi
this inconVenieDcy. The boost* have Uevi
what hir J. F. say*i; 1 cannot but say, t
in matters of blood %ve cannnt be too tender
hut that I would jtropose to you, if this
approve of it, is ihis: suppose yon wa'
whole matter to the l^st moment of
your hill^ and then I shall have hmii
more to say to you in the matter.
Mr, Clerk, Now 1 think it may lie rttf
pn»per for you to proceed in yollr*le^i.4attfl•i
oapacity. I am glad the house have taken a»|
much pains in this examination ot' tlit- matter
and it is no small s:tti>»IUciion to nie« ituvl tti#
l^eoilemau was bronifhi to liie bar upon ibii
enquiry ; very prohuble, iinother tiinc nwi/
induce' liim more to comply than be does it,
present; though, if t luity spak iny opinioap^
there ii tittle hope of tlit* centleilian's ftB-"
swering your expecf»tinu here: and I tliifill^
the first thing you are tu do tam'^ is lo km
your bill.
1^1 r. Pultenei/. Oneof the allegaliont^oftbij
htll is, that hk trial was put ofi* upon si^vrml^
repealed pretences of niakitig a confessiwi.
The conuHcl for the prisoner look nolrce ibit
that allegation wjis not pro\ed: the coans<fl
for the bill told you, they must refer %o *,
worthy member ot'this house, who could nrcFTt^
it ; the w orlhy member it Mr. X'^ernon. I fcup'^
pose, before }0U enter into a dehalc, as tber»]
will he after the second reading of thp bdl#
gentlemen will desire to have all the evidenet»;
And t find your order is» that Mr. Virnon d<i
give in his evidence while sir J. F. ih at tha
Cari and tlierefore I humbly move. That sir
J. Fcnvuck may be called iu while Mr. VernoA
gives hi» evidence. 4_
.Mr. Speaker. I suppoae if BIr. Vernon gtvc|
evidence, you will call in the couuael.
Members* V'es, yes.
Speaker. Pray^ ih«P{ bear Uie
is bggi
meiffin
Mr.
G57J upon a BUI ofAitainderm
thatlmlh liera made; 8ha11 1 put the question,
that 8ir J. Fenwick and the counsel be called
io, while Mr. Vernon does ^ve his evidence ?
Which question passed in the affirmative;
anil sir J. Fenwick and the counsel on both
sides were brought in.
Mr. Speaker. Gentlemen, you that are of
counsel of both sides ; the house, before they
proceed any further, was willinff to hear the
testimony uf a worthy member of this house,
vrhich halfa not yet been ifiven ; and they
are Willi o<^ that sir J. Fenwick and you should
be present while it is ipTen. Mr. Vernon, will
you please to acquaint the bouse, &c
. Mr. yernon. If I understand the counsel
for the bill aright, that which they did appeal
to me for, was about the protracting of sir
J. F.'s trial, and upon what pretence it .was.
The account, 8ir, that I can give of it, is tliis :
that sir J. F.'s trial was put off, will appear
best irom the freouent adjoumraentsof the ses-
sions at the Old- bailey ^jr six or seven weeks
tugeiher. For when sir J. F. was committtnl
to the Tower (which was, as I take it) on the
19th of June, there was, 1 believe, a sessions
to be held soon after ; for, as 1 remember it,
the first application tliat lady Mary Fenwick
made for putting off sir J. F?s trial was u|>on
the 30th of June; anil the petition was, that
iie iiii^lit have some friends come to him to ad-
Tise him how to make his application to the
kinfir : on the 30th of June or about that time,
my lady Alary Fenwick did lirst propose, that
soOielMidy should be sent over from sir J. F.
to the king upon some matters of im|»art&iice,
but dill not decUre what they were ; but only
that she was told there was such matters, and
she had a (iroper |ierson to send, and would
arquaint the Iwils justices with the man, if he
mi)(iit have leave to ^o to the king : but after-
wards my lady Mary Fenwick said slie could not
pruride a fierson so soon ; and, 1 think the 'Jd of
July, she <»me and offered to go herself; and
said, if it was not as much f»r tlic kintr's service,
as sir J . F.'s beiietit, she would not undertake tin*
journey. 81ie liail leave to go, and would have
capitulated, that the trial should be put off till
■he returned ; but tlie lords said, when she
should return, would depend upon her plea-
sure ; but they would w rite to the king at the
■anse time, and gave notice of her intention,
and that the trial should not gu on till they had
an answer of their own letter. -*There was a
passage in the lrans|)ori-ship going to Holland,
and my lady Mary Fenwick desired to s|)eak
with sir John in private, in order to her jour-
ney ; the same night she came back again, and
said, she had considere<l of it, and ' said, she
"Would not go ; and several reasons she gave.
Upon the 7th of July there was a noble lord
that was in the commission for the adminis-
tration of the government, said, he had had an
application maile to him from another noble
peer, ray lonl Carlisle, who desired that he
would gu to sir J. F. for that he had been very
«acDe|jt to speak with hiua. That nuble lonl
VOL. XIII.
A. D. 1696.
[Qsa
did acqniint the lord justices with it, who ac«
quiesced in what he thought fit to do in the
matter.— He went the saniteday to sir J. F. and
the next day the lords justices met again ; he
then told he had been with sir J . F. and that
sir J. F. luid told him, he had sent to the king ;
for he did not allow it should beotlierwtHecom-*
municated. My lords then thought it was fit
to stay for the kmg's answer. This was the 7tU
of July ; and by what acciilent I know not,
but no manner of account came till the 71 h of
August, that the letter was receite«l ; but the
7th of Aug. the letter was acknowletlged to be
received; and the answer that then came to it
was, that the king had not received an v great
satisfaction by the message ; (I know not what
it was) but that sir J. F. should lie trieil ; but
withal, that noble lord ac(|uainted my lords juSf
tices, that the king was pleased to write to him«
that what sir J. F. had to say, should be sent
him in writing. It happened at that time, thai
the judged were ufiou their cir<>uit ; and there
being the king's directions to receive what sir
J. F. had to say in writing, that noble lord did
undertake to go again to sir J. F. ; and, 1 sup*
pose, he did receive something irom sir J. F.
which he sent to the king : w hen the answer
to that came it was in September, and that
noble lord was at the Bath ; and so it required
a litt'e time. — Why then it appeared, that the
king*s direction was, that what sir J. F. had
sent to the king, he should prove it ; and he
should hkewise shew his ingenuity in coniessing
what he knew of any other design^: against the
government: and the 10th Sept. as I take it,
I was (liriTted tu gu to sir J. F. who was then
in the Tower, and to acquaint him with this
message. fio:n my lords justices. S.r J. F.'s
ansvter was, Tiiat he had no more to say, or
soine Hui'ils to thut effect; and then he must
prepare for his detence us well as he could ; but
if hecou'd speak with tliat nuble lord, he should
be glad to df> it ; but he w as not come from
the Bath, and direction was then given for his
trial. A gum, in the mean lime, that noble
lord did come, and he did go to sir J.. F. and
he brought an account from him, Tiiat sir J. F.
would |iruvc to the kiosT, and make out what he
had sail! ; and was ready to give the lords jus-
tices satislaction : and upon that, I w as sent to
sir J. F. ; 1 carried the message in writing,
which you may see when you please. ; and it
was to osk him, Whether he was witling to
make out hy proof, what he had already said
tu the king; and whether he was ready, iu
compliance with the kim^'s direclitms, to give
the lonls an account of \Uiat he knew of any
design against the government ? I carried siri.
F. this message, and he returned an answer in
writing, That he was ready to make out to tlie
king what he said, and would ac(|uaint the lords
with all the matter that he had not ob^iervetl to
the king ; (his arraignment was then to have
come on the I7th) hut he did dicUte a pa|ier
which was brought to the lords, which they
thought fH to 1)0 sent to the kiug ; and tlie trial
was put off as to thai time i and before ai^
3U
659]
8 WILLIAM IIL
«ntw«r A-oni tbv-kin^ came, it wu (I believe)
Ihebeffinnini^of Octolier: and this u the ac-
count I have to irive you.
Mr. Siteaker. Gentlemen, yon connder that
this evidence ii fifiven, with relation to that
part of the hill, that sets forth, how sir J. F.
hail delsyed his trial by offers of eonfewon.
You ba?e heard %vhat the evidence is ; if you
have any lhin$r to observe as to that point, you
may speak before you withdraw.
8ir Tko. Fowtf$. As to this matter, I can
6nly say, that in itself at least according to our
rules of law, it is nut, in any dej^ree, treason :
what you will construe it to he, I cannot tell.
IVe think it is only what is very usual when
fiersoRs are under an accusation ; they will
put off their trial as long^ as they can : perhaps
their witnesses may 1^ out of the way, or
somethinfOr ^^ nnay be the reason of it, and it
does Tiot rarry any crime in itself; at least, not
of the nature that this bill is of.
8ir Bartk, Stumer, We do think, with sub-
mission, that, oonsiderinfir the nature of the bill,
and the particular case of sir J . F. will (in some
neasihv) answer this fact : 1 take this sinirly
in itself, as it hath been observed, not to con •
list with honour ; but it does not import a
crime, tor any man to use little insinuations to
put off hi<4 trial. But, suppose it was unlawful,
•r that which they call prevaricatini; : I lio|ie
St is far Irom makint^ him (ruiliv of hi|fh- treason,
which is the prreatest crime this bill designs to
|>ass sentence for ; and, I hope, you will coii-
aider, if it Lq an offence, it is so at cuimmon
Jaw; and ttie same evidence will prevail to
briny^ sir J. F. to coudic^n punishment by the
common methods. And if it be no offence, 1
hope yuu will not by law make it an offence,
BO as to inflict the gieatest punishment for this
artifice.
Mr. Speaker, Mr. Serjeant Gould, have you
any thiniyif to nay ?
Mr, Serj. Gould. No, Mr. Speaker.
Mr. Speaker, Then withdraw.
And heinnf withdrawn,
Mr. S/oane, 1 propose it to you. Whether,
if tlie paper be evidence, it should not be read
in the presence of the prisoner?
M*mbcrs. No, no.
Then the (jueMion was put for Candles;
which passed in the affirmative, and they were
l»rouji>ht in. — Ordereii, That ihe counsel be dis-
cbargi'd any tuith(r attenduncc at tliis time.
Mr. Mtihuen. There car he no debate
previnutt to the ren«ling- ol' your hill. 1 desire
tJiC order of the *\.\y may be read.
Accnrdinijrly the (htlvr of the day for readin|i^
of the Uiil a sec4i*id time, was read hy the
olerk. I'hen the liill was read a second time
by the clerk.
And bi'in;^ afterwards opened hy l\Ir. Speaker,
anil he havinvf ex]>ccted for some time, and no
member rihin^ up to speak:
Mr. .Speaker, Shall 1 put you the question
of comuiitmentp
Sir Thit. Djfke. Sir, I hope you will not
put the qiiestioa of comiuitnMQt uoVii some ez-
ProceetUngs against Sir Mm Fetmd^f [M
ception is made to the bill ; I «m Mta'il is n
liable to exceptions as any bill that bath ham
brought in a ([{Teat while : h is * laiidcr anhjeH
to speak of, the pretence of the bill b^n^ftr
the preservatio:i oftbekingand giovcniMBt;
and if I thought it was really so, I tboaU hi
heartily for it ; tor I think there it no coft
rison lietween the vmlae of the king^ life, smI
that of private personi : but that halk ksn
often said, but not proved ; thwefote, 1 1
I may tell you my reaaoni why I aiD i
the bill. That the fMriiameot balb a
to make such a law, is agreed ; but I tl
ought not to be oicd but upon 4
occasions, when great peinea ai
that cannot be otherwKe brougbt to ^
and when crimes do not Ml nnder ibadcai*
mination of the law, which is not tfaaDnMl
case. ThiscaseiSftbatageBtlemaDiseMigil
with treason ; and it is proved but by eue vib
though the ooansel did asy, tb^ a om
salt io levy war was not treaaoo. Now site
it will not be the crime that is alledged, or itb
not proved. Here you are jndgea, proi
witnesses and jury: 1 woukikiyiw
country it is so i* Begidei, the
produced here, and not sworn ; and Hpoa tin
whole, tliere is but one witnesa. Sir, I m
against the bill, and against it, as being af te>
gerous consequence.
Mr. Ptt//aey. This matter befiwe yoa ii rf
such a nature, that as a debate is risiBg npaii^
I hope all gentlemen will bear one aaolhtf
with the greatest attention that may be. Ths
worthy member admits you have a powOH
pass the hill, and I do not find that contatfd
by any iKMly ; thou^^h (with submission) ibi
latter part of what lie said, contradicted wfait
he admitted at iirst ; but since that is so nsck
agived, 1 shall say but little to it, and that il
this : that without such a power as this, asy
government would be imperfect, and wcaM
want a sufficient power for its own preservstii^
u|K>u extraordinary occasions. You havebeoi
told, this hath been an untrodden path ; hot, I
believe, gentlemen are pretty well satisfied it
hath not beeu so untrodden, and many prec^
dents of that kind have been quoted; aodlhs
counsel a^rainst the bill have aduiitled, thtf
there have been frequent precedents. Aa ok
jection hath been made to some of them, Ibit
they were made in ill reigns; but I take it Is
be no olijection, that the precedent was niio
at one time or another, since it is agreed, thtf
we have such a |M>wer, and that that povtf
hath be<'n executed. — The cliief matter beta
you is, Whether in the present case, there ii
sufficient {frouud for you to exert that pow«f
And u|Nm that, give me leave to observe ikt
nature of the crime of this gentleman, and iht
evidence that hath been brought to prove Wm
guilty of that crime. Hiscrime is high-treon
the highest crime in the law : it is tor oamf^
intr the destruction of the king, and tbeoMfr
thruwintif of the government. The etort'Ojt
which tiie bill tells you (and which io mm
tioned ia the indirtrnmi) m Ui ntiiiiV * ^
I]
tcjBOfi a BiU ofAtiainder*
A. D. 1698.
iGtm
nch firae, io aidtr toaceemplith hit design,
his crinia woaM admit of iggravation, some
er puti of the bill would aggravate it; but
link it will adDit of none. The counsel at
bar made • doobt, whether or no, that
ich was laid hi the indictment did amount to
jfficiettt oYert-aet of high-treason ; and his
viDent he drew from a book that hath been
oat by a learned gentleman of tlie house ;
the gcntlertian could easily have answered
irelf ; and, I presnme, diil not speak his
a opinion. For that gentleman did write a
ik, called, * His Majesty and Government
idicafed :' by which he endeiroured to over-
ow the argamenta in the other book of the
lergentlctnan. — A* to the proof before yon,
a nave bad the testimony of Mr. Porter,
wse evidence hath been justified by the se-
rai convictions grounded upon it ; and by
t eonlosion of several gentlemen, that hate
nedthe fiiut at the very time when they have
CD gomg out of the world : and there hath
en no evidence brought by the prisoner at
e bar, that should invalidate the testimony of
ia gentleman. And so (with submission) you
ite one undoubted evidence, that doea char^
a prisoner with the fact mentioned m
cbill: you have other proof that does not
«e op within the letter of the law ; but you
ife strong circumstantial proof, that e^ery
iotleroan will apply to his conscience in the
d^^nvent he shall give in this matter. One of
e aliegation<i in the bill, is, that he did, by re-
nted prnmisea of making; a confession, from
na 10 time, gain a delay of liis trial. It is a
vat presnra|ition, that that was in order to a
iBjpi that he had of scilucing Mr. Goodman,
at was one of the witnesses ; for it was ob-
fved to you, what practice there waa in the
nr, with* the other evidence, Mr. Porter.—
r, gentlemen have objected the consequences
^ BMking a precedent : you were very well
U by a worthy gentleman tliat spoke the
kn flay, near the place where I am, that in
K case of a good parliament, it is not to be
Ngined that they will make use of this pre-
Mt, but Dpon as good a ground as yon have
Nv ; and an ill parliament, they will have the
urn reaaoB. lor they will copy afVer the same
laoedcnta that have been made l>efore, and
iR not stick at doing of it. Besides, let gen-
Men coaskler the way of arguing: I have a
■var Io do such a thing, and yet if I have
Mb ajjroond aa ia anfficient, I shall not make
H af a : to aay.yon. have a power, but shall
atsMvt it, ia uffwid aa to aay, you have no
aver at all. Tnere were some preceilents
iltd bf a learned gentleman that spoke against
b biH, and be particularly quotea that cif my
■dIftraAiffd ; and the act of parliament that
i^eab that attainder, waa in part read to you :
■■t, ar, the veaaooa given in that hill of refieal
■fay kird Stniffbrd'a attainder, are, that it was
teitil ID a t&maltaoua manner, which infln-
indlha parliament in doing of it; and that it
Mid in Uia house of lords, when most of the
vii warn aiMCDt : and at lait, the lung, when
he gate his consent, by commission, to the
passing of thebill, it was with great reluctancy.
It is certain, all these are reasons that are
given; but there is not one that questions the
parliament's power of doing it ; though upon
the trial, gentlemen may remember there waa
a doubt in the law, whether the evidence waa
sufficient. Sir, it hath been urged to you, of
what ill consequence it would he, and how much
injustice, tu make a law to punish a man ex pott
facto ; hot that the parliament may declare
that to be a crime, which was not so before^
nobotly doubts; and without that, the clause in
the 35th of £4lw. 3, signifies nothing ; and I
do not imngine it is a greater injustice to sup-
ply in point of form, aa to matter of evidence^
when the fact committed by the prisoner waa
against a known law, at the time when it wa«
committed : and the rather, if I think that de«
foct of form in the courts below was occa-
sioned liy tlie prisoner. It is a matter of blood,
it is true ; hut 1 do not aim at this gentleman's
life in it ; but any man must believe he must
be concerned in great matters, to bring to pass
this great design ; therefore, all I propose by
it is, to get his confession, which in all proba-*
bility we might have had, if the other witneaa
had remained here. — Sir, U)M)n the whole mat-
ter, I do think we have power to do this : I do
think here is good evidence (1 speak with re-
spect to myself) to think him guilty of thia
crime. 1 do think, if this bill does miscarry,
there is the greatest blow that can be given to
your constitution. Ami give me leave to lue
this expression ; I think, if this bill miscarry,
it not only turns this plot upon you, but makes
it impossible ever to come to the depth of any
other; and fur these reasons, I am for commit-
ting of this bill.
Mr. Newport. Sir, I am unwilling to troa»
ble you at any time, but more especially at this
time, when 1 am afraid I am like to speak
against the opinion of the majority of theliouse ;
for I see gentlemen are in great haste for the
commitment of this bill.— Sir, in this matter I
louk upon myself, as e^ery gentleman here, to'
be a judge; and therefore, I will in this case,
aa in all others, go according to the dictatea of
my own conscience : I must be saved by my
own faith, and never will pin my faith upon
another mau's sleeve : perhapa it may be a
weakness in my nature, that I am very tender
in the matter of blood ; but i hope ^entk»men
will not be in so much haste to commit the bill ;
for * De morte hominis, nulla est cunctatio
* longa.' A gentleman below said, the other
day, it waa iidssible in his own private opinion,
he might believe the prisoner guilty ; and aome
notice was taken ot those words : hut, Sir, I
would put a case for nrgument*s sake, and
would have it taken no otherwise ; and I would
go a little further than that honourahle gentle-
man ; and suppose that 1 knew, of my own
private knowledge, that sir J. F. was gnilly;
yet. Sir, with humble submission, as a judge, t
do not think it ought to weigh one way or an-
other with me; and will give yon my raaaoa
863] R WILLIXM. III. Proceedings against Sir Johtt'Femeiek,
f«
for it ; for as a jud^p, I am to p;o ac'corHin^ to
my judicial knonletl^e, and not nccordioj^ to
my private . kno\v)eft|j:e. Jt is a maxim * Nil
' refert cyiiiil notat judex, si non iiotat forma ju-
dicii :' and it (Hits me in mind of a cnse in
ilen. 4*8 reijjjru : two men travelled toflrethcr,
and one killed the other, an<l the jud^e saw it ;
'afterwards that judge went the same circuit,
and nu innoirent man came to be tried before
liim for it ; and yet the juil;;e, in that case,
^as obliged to go acconlin^ to his judicial
Jcnowleilgc ; all the judg^e could do (the man
bfintf found guilty) in that case, savs the book,
M'as, to respite • the jud(;meiit and execution,
and to make applicutinn to the king for the
p<K>r man's |nirdon.— Thf e\ idenee that is pro-
oucefl, is tirsi a living witness ; the next e%i-
deuce was the confession of Goodman, taken
before a justice of peace ; tor that, trnly I did
not think yesterday it was a le^al evidence : 1
^m sure in a court of law it hod id not be ad-
mitted ; but the house was pit a-ed to read »t,
and gentlemen, when they pressed it, tnid us,
.read ii, • v:leat quantum valeie puU'st.' Then
if you strike this paper out of the cwse, with
4iuudde submission, there is notliini; 'eft hut
^le lesinnony oi' caiitain Porter ; and so then,
in that cafse, yu uave but one wiincKs. It
•wouid seem a little strange, that the commons
of England, that lately it ere so very careful of
-the lives of ihc subject, and were so desirous of
passini^ a bill, that did provide, that where
•lliere Mere t«o species of treason in one iodict-
ment, and one xutncss to one spe<'ies, and
anotlu'r witness to another specie*:, thai that
shonlil not be i;'Oi:d evidence to convict a prr-
aoD of high-treat^on ; that tliry should be at-
4ainting a man for treason upon one sin;,^le evi-
dence ! Surely they willssiy, we have mi<;htily
changed our opinions since last sessions. J
■ a|»eak not this upon the account of sir J. F. ; I
know him Uid, though I am not a stranger to
bis character, and 1 hear that is none of the
best : I speak it as it may be my case, or any
man's whatsoever. God* knows, we live in an
■unsettled time, and how soon a precedent of
this nature may turn upon any man whatso-
ever!— Amongst the gieat irregularities com-
mitted in the late reign, 1 thought that of 3Ir.
Algcmoon Siilncy one of the greatest strains I
•aw in ^\'estmiiistcr>hall ; for there was my
lord Howard a witness against him, and the
next evidence was a book that he had wrote
against sir Uobeit Fdmore, which, 1 think, is
printed since this revolution, and I have it in
'my study ; anil I hope, 1 shall not he hangeil
for it. 'I*hat was conatrued to be calculated for
a treason that hath not beon committed abov«
two months, and was the second witness to
convict him ; but that attainder was reversed,
and it was tit it should he so; tor 1 thought it viiter, the idea of which new punishiiieiii L
a hard strain to convict hrin w^vu that evidence. , sibly arose from Rouse's having been a cook
this gentleman has told yon, itf, that be pr
mised to make an ingenuous coDfession : b
any man might have easily seen ihroo^ib tl
confession, that it.waa only an ■rtificetoaba
the king's best triemls ; nay, the ntberp wbi
this gentleman's bi-oiher bad aerved tins vei
government, hut two or three years ago, ll
same trick. We know my lord Pl^atun in
attainted of high- treason, and then lie murt d
something for his {lardun ; and lie madeao is
gen; ous confession, as he called il, wheicb;
he aceiiseil most of the great men ; and Hhci
he liad a pardon, though his confeasioo wm
under his own hand, and deliTered to the kinr,
he denied every woni of it ; and what be tflU
was to save bis own life. My Deigbbonr ritf4
you several precedents ; 1 have' lucked iols •
great many of them, thev are mentioiipd io
Kushworth^s Colleiiitms, in the great Aifu-
ment, that Mr. St. John made for |ms»ingtbe
bdl against m\ lord StraflcMnI; aiid as tnibtw
precedents, ail I ran say is, 1 could not but
come up to them, it I had livetl in those tiain.
The last precei'ent was ot a c«iok that put (loiMB
into the p(»t of the bishisp of ftochister: Aod
\«hat di<l they do? They did enact that he
should be boiled alive.* I have a great hi-
noiir tor the present binhop ; hitt if it bud btp*
peniMl in his famdy, 1 should hanlU hauecy*
scuicd to the like.'t * Judicandumi'st lii;ibK
* lion exemnlis.' 1 should be glad (his goi-
tleman might suffer his due puiiiNhnivnt; Itnl
I am not, hy any means, sati>fu-d lu the pall-
ing of this biM ; and as to what grtir.tiiiin nf
is the reason why this man was not iriril, be-
cause it was thought he would ha%e nuiii^ IB
ingenuous ronlVssion: Sir, if they ha^e tnajte
any mistake, 1 will not help it by the passiri^tbii
biii of attainder. I ask your pardon tor troub-
ling you so long : 1 am a judge in this niuWfi
and ought to deliver my opinion. 1 ho|«c no
man doubts but I am as zealous for this go*
vernmeutas any man whatsoever;, but let wbi'
will come of it,'l cannot give my vote for pin-
ing of this hill.
Mr. Svlicilor General, This is a bill forif-
taintingsir John Fenwick of high treason : iiii
the greatest crime we know in the laiv ; and, 1
think, the greatest crime known in a gnfffa-
inent. 1 1 is much greater than murder, or loy
* See Foster's Report of William Nicho-
las's case (Crown Law, pp. 68, 09.) **TI»e Sta-
tute 22 H. 8, c. 9, is printed at length ia Rif
taps edition : and by thf preamble it apprtf'
that one John Hoose, a c(K>k, had poisoned*11
persons of the bishop of Uochester's family, tw«
of which died. John Koose, therefore, by i
retrospective law, is made guilty of high twi*
son, and he is ordered to be thrown into I
I am very sorry this bill is brought into
this house; nor can I imagine, after all that
hath been said by the learned gentleman, why
this man was not tried when there were two po-
sitive witnessus against him, All the reason
Darrins:ton's Observations on 1 £dward 0-
•f See some particulars concerning hifli !■
the Introduction tn the Trials for the KytAw^
Plot, Vol. 9, p. 362, and ia the Seren BiiMr'
Ctse,VoL 18, p. 180.
GBS];
iipon a, Bill ofAltamdtr.
A. D. I6g(S.
1666;
thioiif else ; became it sabverts the grorernraent,
and the law whereby these crimes are punished ;
and persons should be deterred from coinin it-
ting these crimes, li hath been made a ques-
tion by the gentlemen at the bar (1 think two
ot'them), whether this matter that sir J. F. is
indicted and accused of, is hipfh-treascn or not?
1 must confess 1 heard something of it without
doiiTs ; and that they wo'ild make it out, that if
he was guilty of the matter charged, it was not
higli-treasfm. 1 thouj^ht it somewhcit a bold
matter, but did not think they would have
undertaken it in this place, thou;r|| they might
have pretended some flaw in the indictment :
But it seems they have the authority of a good
lawyer in it ; and they ha%'e qnoted one learned
author, as they please to call him, thou^^h I take
that ftir a great ccim|.IIment : I believe they
may mean mvKelf; and they have done nie
some hiniuur ; for they say, my lord chief jus-
tice Hales was of the same opmion ; and then
said soraelhing of Dyer. Now he bath read
something at large out of that author hu spake
of, and cliallengeaany one to shew any opinion,
that ever, a conspiracy to levy war was high-
ireason within the statute of 25 Edw. 3. Now,
1 would give a challenge on the other side, that
he would shew me any opinion before that
time or since, that a des^igii to depose the king
is not high-treason within that statute. The
author that he speaks of says that expressly in
tlie iiintter of my lord Uussel, and tells you
particularly ; and in * The Government Vindi-
\ cated,** which was only an ans^ver as to the
prosecution of my lord Kussel, there are several
cases cited, that a design to depose the king
was hif^h-treason, and agreed to bjr that very
person \ and it always was agreed to be high-
treason. Then take the state of this case, and
tliut of my lord Russel : The groat matter was,
that he sent same persons to view the guards
(it was said, in order to seize the king) ; this
was evidence against my lord Russel, for a coii-
spiiacy to levy war : But it was said, that tiiis
was nc>t so much a conspiracy to levy war
■gainst the king, as. against the guards. But
this is of a quite dififerent nature : Captain.
Porter hath given you an account of it (and I
think Goodman's examination is to the same
purpose,) that they met in I^eaden hall- Street,
and consullefl how to bring king .lames back
■gain ; and the only meth(Ml they could think
of, was to send Charnock over to' king James,
that he might prevail with the French king to
■end them 10,000 men, and they would meet
him here with 2,000 horse : And for what pur-
pose was this? It was to bring back king James
igain. I would be glad to hear if those gentle-
Den that were at the bar, or any body else,
cnuld say this was any thing eUe but a design
» depose king William : And they cannot shew
me one lawyer's opinion, but that designing to
Jepose the kin;*', was evtr called imupfiiiing the
leath of the king, within the statute of 95 E. 3.
The first resolution of this matter was pretty
. • SeijVol, 9, p. 741;
early ; I think it was Henry 4.'s time, and that
was pretending Richard S was alive, and that
he was the lawful king : 8o that the matter is
treason, as it is charged in the indictment-
Then, as to the precedent, that it is ao ill pre*
cedent : I must confess, I am not afraid of a
precedent of this kind : I should be glad if
these gentlemen should turn back, and see how
many attainders have been by act of. parlia-
ment. But I dare say, tliere have beep more
men destroyed by the irregular judgnoent of a
conmiission of Oyer and Terminer, than by all
the acts of parliament, whether legal or illegal.
— As to what they say (»f my loril Coke, who
mentions the aUainder of my lord Cromwell
and sir J.. Mortimer ; the gentleman pretends
to repeat my lord Coke's words at large ; but
he did not deal so well as he ought to do by '
you ; for he should have-told you all my lord
Coke tells you ; that Cromwell was never
brougl)t to answer, never permitted to say any
thing for himself, neither in parliansent, por
where he was. Now, pray. Sir, is this the pre-
sent case ? Hath noi sir John Fenwick been
heard by you ? I woukl be glad that gentle-
man, or any body, could shew me, that any -
person hath so fair an hearing before commis-
sioners of Oyer and Terminer, as sir John Fen-
wick hath bad before you. As to sir John
Mortimer, it is much of the same nature : My
lord Coke says, there was a jealousy of sir John
Mortimer's pretending to the crown ; and be-
cause they suspected him, they did give out,
that he said, that the earl of March was heir to
the crown ; and if he did not, he would pfe-
tend to it himself, ^c. Now, says my lord
Coke, this was but a bare pretence, and no-
thins: else : He speaks as if he did not ever
think him guilty of those words, and says, hav-
ing indicted him, they not being able to proceed
that way, they made it good by act of parlia-
ment, and he was condemned : 8o. that what
my lord Coke complains of, is, that these per-
$ions so condemned were never heard ; and if;
this be the truth of the matter, these precedents
(with submission) have no affinity with yours.
But I believe this may be said in this case, sir
John Fenwick hath Lieen heard, and that more
than ever any one in parliament was before, in
a capital matter. — As to the case of my lord
Stratford, he had counsel assigned him to stand
by and hear, but not to prompt him. if there
arose any point of law, he was to propose the
matter to the lords, and the counsel was to
assist him by their direction. And in the case
here before you, you have allowed sir John-
Fenwick counsel, not only to assist him in point -
of law, but to assist him in point of fact too.
They have made answer for him ; so that 1 8ay«
he hath been tried fairer than any man evec.<
was in parliament, be it upon bill or upon im-
peachment, that is, as to the matter of prece-.
dent. Then it hafh been said, this would not:
be good before the judges. I must confess it ; ■
hut the evidence captain Fortcr gave of his owb-
knowledge of sir John Fenwick, every body-
will agree is %rhat thv lajv will allov. .Bi^t hei
8 WILLIAM m. Proceedings ogainH Sir John Tenmek^ [M
at the KingVHeaA in LeadeBhatt-RtrcH, m «l
Mrs. Hountjoy'8, for tba purpoM gifCB in m-
denoe, ba ought to be ai(auist the hill ; but I
think, every maD that ia of that opiaiiMi eqabt
to be for the bill. 1 am one oft' thoae thai daak
he is lifnilty, aod therefore am Ibr oiMnnMttiiy
the bill.
Mr. Harccurt. I ean readily a|raa with the
gentleman that apoke last, that hyh^tieam ii
the higheflt crime in the laiv ; and father, thil
the matter of the indictment that b mintioart
in the recital of the act ia undoubtedly bigbi
treason ; and I am sure he will agree with at
in one thing also, that the greater the eriiM is
that any person ia accused of» thedeanrtks
proof ought to be by which he b eonriek^iF-
Some gentlemen have begun their disooune b
relation to the power ; but aure it b no arma-
ment, because I can do a thing, therefere 1 wA '
do it ; because we hare |)Ower to repeal Msfss
Charta, and all other subsequent laws, vhni
bare been made in favour of life and likrtff
and property, by the sanoe conaequeaca as
ought to do It : A better reaaon must be gifoi
me, before I consent to this bill.— Then fcr Iks
precedents, it is said, there have besa msn«
and many have been mentioned ; and if I thaogU
it worth while, I woukl mention many bmis
you have not heard of. As for preceosats b
s(pneral, they are so far imitable aa tbev SN
^lunded upon true reason, and agreesMS Is
justii e ; but I do not remember any one pitee*
Hent of this nature, for a fieraou in ciolsdy,
f'orthcoroiuf^, to be tried, yet to be attsialed
without a trial al law, but what has been uu-
vcrsally branded ; and they all seem to be rs*
proaclies even to those ill reigns in which tbcy
were usually made ; and rather to be marked
out HA rocks for us to avoid, than pattrras for
our imitation. — Before I particularly nieatioa
thq fuels how they stand beture you, 1 wouU
lieg Icove to observe upon the general method <rf
your proceeilingn, and tell you what stains
ine ill it. — 1 have of\en- heard this callsd a
trial, and that we are the judges ; the gnHb*
man that spoke last gave us an otber title, sod
tolil us we were the jury also. I know no trill
for treason but wliut is confirmed by Ms^aa
Cliartn, per judicium pariuntj by a jury, whkh
is every kngiishman's hirth-riglit,aud i'salwajs
esteemed one of our darling privileires j or fer
le^em trrra^ which includes impeachmeols b
parliament ; but if it be a trial, it is a pretty
strange c»ne, where the pcrMin that stands opM
his trial hath a chanoe to be hanged, but noat
to be save<l. 1 can't tell under what charadcff
to consider ourselves, whether we are judges sf
jurymen : I never heard ol' a judge, 1 am SOU
not of a ji:ryman, before, but he waaalwaji
ia hot a aingle witnesa, and you ought not to
wocaed upon the eridsnee of a aingle witness.
Let oa see bow the law stands upon the whole
matter : You have made an act of parlbment
last sessions, and I own the law was before
that, that thcare ahouU be two witnesses in caae
of traaaon ( but all that goes no farther than to
triab in the King's-Bencn, and commissioners
of Oyer and Terminer, and gaol-delivery. And
if you look upon those acta, it is very plain ;
for they refer mostly unto the judges, what they
ahall do in such and such cases : But then you
will see what b the reason of making those
rules ; I think there was good reason that you
ahonkl not put that power in persons below,
that yon have in yourselves : You give them
rubs to proceed by, and they are to keep up
strictly to them ; you may act by other rules.
It is one thing when I command my servant to
do such a thing, and another thing when 1 act
myself. And Uiere is a difference when a ju-
dicature ia by fow, and when it is by manv ; the
law pots a greater confidence in many than in
a few. The ordinary trbl is by twelve jurors ;
but if it be a matter of an high nature, as an
attaint, then it shall be by twenty -four ; and
you do prefer a greater number in every thing
to a few. It b aaid, though a judge do think
in hb conscience a person guilty, yet he ought
net to make use of that private knowledge ;
and a caae was quoted out of Hen. 4. But I
think that judge might have bchavetl himself
aomething better than he did ; and sure I am,
now lie would be blamed. I do not say, that
a jndge upon his private knowledge ought to
judge ; he ought not : but if a judi^e upon the
l>ench knows any thing, whereby the prisoner
night be acquitted or convicted (not generally
known) then T do say, he ought to be cal!eil
from the pUce where he sate, and (fo to the bar
and give evidence of his know Ie4l;rc ; and so the
judge in Hen. 4.'s time ought to have done, and
not to have suffered the prisoner to have been
convicted, and then get a pardon for him ; for
a panlon will not always do the business : for
there may be a forfeitnre that the king's par-
don doth not restore. But though we act as
judges here, do ue act only asjudf^t^? 1 thought
we were as well triers of the fact as judges.
There is this difference between the judicature
of Westminster -hall and this court : They are
to judge upon a fact found by a jury ; hut we
act both the part of a jury m trying, and also
of judges in judging what'the fact amounts to :
8o that if a juryman may make use of his pri-
vate knowledge to acquit a prisoner, as (1 think)
nobody doubts but it is his duty to do, then
every gentleman in this House may make use ot'
his private knowledge to ocquit the prisoner,
or convict him. — I confess, tor my part, I am
satisfietl, that sir John Fenwick is gudty of this
crime for which he stands accused. 1 do think
this crime b high -treason ; I think there is no
danger of a precedent in this ca.se, if you con-
vict him, being convinced upon the evidence
you have heard, that he is guilty : 1 do own, if
any gaatlenun think he b not guilty of meeting
upon his oath : I never neard yet of a judg!^
but had power to examine witnesses u|ion oalhi
to come to a clear sight and knowledge of thi
fact : I never heard of a judge, (lut if a phsaasi
came before him, the prisoner was alwaystsM
he stood upon his deliverance, ami had natanlj
a power to condemn the guilty, bnt to aave tki
innocent. Have we this power T SuppoaasfH
6691
vpon a Bill of Attainder,
A. D. 1696.
[era
mach a (rial a* this fif it roast be catted so) K
nny to happen, that a persrtn that comes be-
fore lis, shuuid be the innoceutest man in the
worid ; what judf^inetit is it tliat we can i^ivc
ibrso much as such a person hath ttmfle his tn-
soeenej fuUy appemr ? Is the Speaker, hy his
warfBot, ta send him hack a^iti to Newt^ate f
You eao*l diafioae of hitQ otherwise, though you
waitt tftlMed of his innoceDcy : but in such a
cm^ tHe party mo^ uDrterj^o a double trial,
wbich is eontrary to all ibe nile« I iia^e heard
of. If 1 am a judgr in the ca^e, 1 beg le^ve to
tell yon, for my own jiistificatioD ottly, what a
detinitiofi 1 liave met with of a judo's discre-
lioa ; my lord chief juBtice Cuke says, it h
* disoemere per le^era ;' and by that discretion I
beg'leare to cnnsi^ier ihiscase : if judijes make
tlie law thpir rul^i they can never err ; but H'
the uncertain, ai biliary dictates tjf their own
fancies, which my lonl Coke ealU the crooked
of discretioo* be the rule?* they go hy,
I errors musi be the effect of such judfir-
jnoita.— As to this particular c^se, I did expect
from the |^i}tlt:man that spoke last, that he
»ould hare told you there was a plain evidence^
why you should t^o on to the paHstng* of this
tttl ; hut in&iead of that, I am surprized in hear
ttUa^ meotioiiedf that in parhameutary pro-
ccading9 A roan may be lian^ed by one witof ss ;
eeitainljr that is ntit to be taken ]iir ff ranted, —
Aa CO this particular c^se, I %iould t;^ke cuptain
Porter as upon his oath, i\)r stxppuisitioD : You
Ittano one witness ag-atost sir John Feriwiek of
fe^gh'treasHO , and, with your Ipave, I desire to
evsmine what you ba^e more in this ease. —
Veaieuiay you voted a paper to be read, Good-
■NMi'0 ntrntive or examination ; it is a dif-
feent eaiie now you have it hetore yuu to rtr-
termioe ujm>ii. Yesterday the qucfitinn was
only for heann^ ; hut ^enllemFo nmv consider
Imut f^r they ou^bt to believe it, and the other
tffiilefice ipri? heard. And 6rf:t, there is some
^■fdeo4-e that Clancy tampered wiih Porter,
^Hd i^ave hmi a sum of 3O0/. and so th^'y would
HWlrr, l>ec»use I'orter was tampered » ith to l»e
ae, thererore Goodman was. ft was t^dd us
r(uod 1 desire 1 may be irdiarmed if j am
ftken,) that Clancy said, he outue fi^iiri sir
I Fetiwicrk; and afterwards my lady Miny
Itewiek said, she w<»uld make ^ood what
' had said ; and IWmo tht?se arj^uments
jr jprvsume, that iir John Fentviek koevv of
6ive iiw leave to ItW you a rnle 1 never
1 43ontradieted, that uresumption is io lie
t in favour of life ; but in pt etiume u mnn
because Porter wa£ tumpered ivith by
because he fiaid it wm by sir John
t*i onler ; *ihaU \4e presume t^ir John
ridr did it? Is ht>ar-say tt* be endeutie?
^ li # von to be had to the j^dlovvs upon pre-
tionf How olten, »nd \utb hnw much
tMive we heard ei^cbm^ttiufui s^aiust
Mipoti presumpUotis, iimi^ndu^is, con
(iTe aod accumulative treason ? Ace, —
Bfihcrr is some further eviitence, and
i Mf of «rhal was sworn at Cook's trial ; and
t tbotight 6t to liAve the record
read, and an examiontioa of whit wi
there. I can never ^ ao te as to think it rea-
sonable, that what evidcooa bath been g-iven in
ooe case should affect aoottier man ; but all
this is to he aoawereiJ^ by calhni^' it parlia-
mentary proceedinifs We doubt it is no e?i*
dence in llie courts below, but they are meD-.
tinned with some kind of disdaiOf as vary incon-
siderable. In this case. 1 he^ teav«> to tay this
in their vindieatton, thai whatever the ndea in
Westminster- ball are, it is not therefore reawm
because it is a rule ; but because it is itras^m, and
reason approved of by lon|r experience, tlvere*
fore it is a rale ; andiftliey make their rules
for that cause, I hope that is a catise why %••_
should imitate them: but I would not liai#|
those rules thoug^ht matters ol' lorm, Itot an
stance, ar more properly part of the law
— ^Upon the whole matter ; if do ^ntlemsn wflf
g'ive OS a reni»ou why this is eviilence, but one
witness, and that not upon oath : and if we are
to come to our parliamcutary discretion to sup-
ply that defect, the w ant oF the other^ it is ^ ^
discretian I will disclaim all the days of i
life. And I hope you wdl ffject the bill
Lord Cuits. If, sir, the gentleman tha
spake last had l>een speaking to Westmiosier-^
hall, I should think that he had shewed a ^*eat
fteal of reason, and spoke with a firreat deal of
juil^raent ; but since I thuik you are here upon
a quite diJferent foot ; I shall not ff»llow him
(because I will not ijoneceii#«arily detain yoa)
ti» an&wer every particular.-^ I renieinber, when
the counsel for tlie pri«»(tTirr first spake, they
took notice to y oil ^ that preredents wire pro-
creative, and one bej^al another, and they are
apt lo multiply ; therelure I do think, it is of
the hi|;liest moment to you^ what preceiteat
vou make to-ui§^lit : and if any |rentlentan can
be satisfied, that the precedent of passing this
billt will he of worse consequeficethan the pre-
cedent of notpassiogr it, I shaU humbly submit.
I do tliink» sir, tl»e matter lietbre you is of the
hi|^hest im|X)rtance ; and i must coofosa, it it
with a 4p-e«t (Teal of satisfaction to niyself, that
i do see t^^entlemen si*em to apply tliemaelves
with a L^reat deal o^' seriousness lo this debate,
a't^f I shall nut pretend to make a particular
answer to what the r^^unselfor the prisoner did
say ; as to the prece^tents of acts of parliameflt,
I think rlns answer is fiutficJcnt at present for
I hat, thai if we have no precedent^ we are undor
a nuees»iity ofiuakiug one. It is l4ild us, that
ot all till; pivcrdentH utHie i» ill justify us in this
proceeding,' ; Uu at the hAma time it must b«
considered, that we are in a iftse, the like lo
which iievt^r yet ha[mene*J in t:^n|^hnd. — ^The
first ihin^ I shall apply iii\seil t^ii is the juris-
diction of parliaments ; and iruly, I thuik, it
ivill be very r»eceosary to say a little upon that.
I have lieard tionc call this ^Ktwer in ipieslioe*
Ihe Ihint^ sjieaUs itself; it is ttie lejfisltttve
power, and the ctymologfy of tlie word tells yoa
what it is : tt i-i a power that cao muke laws,
and alioltith them; a power that is superior to
hII other [ittwers whatsoever, aod wo are part of
ihat legLsUttive ^wer^aad tberefbi^ I ikall aay
.671] 8 WILLIAM III, Pfoceedingtngmnti Sir John Fenmdc, [GTt
not one (;peDtleman within tliese waH^, nnr that
walks the streets, nut a livintr soul, that doubts
of his crime. But, 8ir, 1 wouhl nnt Ihis matter
yet further ; 1 am not only satisfied in my own
conscience and reason, of the justice of yoi:r
proceedings, which ought indeed to be the
foundation of e>'cry man's opinion ; hut i am
satisGed, that in this wav, there is no liaitUhip
imposed upon sir John ten wick, if he will be
his own friend : for I doubt not, ii|»on what
iiath passed in this proceeding, that l>efore
thingH are bi'oucht to the last extremity, if sir
John Fenwick be his own friend, if l^e be m
much a penitent and friend to the government,
and to posterity, to tell truth, and lca?e off his
dissembling, and be plain ; I doubt not bat he
will find favour. Now, Sir, I would )»eg leare
only to answer one or two ohjections; for some
thini^ that hare been said ogaiitst the passing
of this hill, 1 do not think material. Oue ob-
jection thut Si^ms to me to carry the i(Teatest
apiicarance of ivcight, was made by ono of the
counsel for the prisoner: he said, It would look
strange in alter a^e^i, that the same parliament
shoidd pass the hill for regulating of trials ia
treason, and this bill of attanider. Sir, I desire
you will please to oliscrve how this matter
stands ; and, in the first place, as previuas to
that, I take leave to observe a few things : it if
a proposition generally agreed to, and not to he
denied, that that which is designed for the pir-
servation of any creature, ought not to be ntafJe
use of to their destruction. Now this treaso:i
hill was deai:;ned for \our preservation, to
MMeen yon ai^iinst the" jhiiijjfer of arl;iiiarv
poucr, and llii* iiiilii.e of f;il.se uiliii'ssrs ; ami
! this hill (if ;:iiai!uicr is bro;ii»lit to scivt.ii Noih
1 umaml ilio co\i.'rnmciJt iVoiii your t'licmies,
I both abni.tii nod nt h'>ine. Aiid I tliiiik the
; trea*»on !» il i*; no i>i>|(<iii)n Ujio.-i tiu-sc toi^i-
df r.uidus : bo>ijle*, tlio ti't-uson liill was <>ri!y
maili' lo III! a rule to intirior fourt-^. T!i3
ii'anuMl ixi i.i'i man tlial spake last, told vou,
'. the rules ot \\ estinin.stcr-hali w<Me not rule*
i>i'oaiisc tijey were observed there, hot b<-c;\use
i tlii'v V, iro trrf^undcd uj>on reas-m. Why, Sir.
! ill aiiL,Nv<'r n» tluit, I \m\\ oiiI\ \.\Vv leave io tell
I hiiu, that that wliicli is reason in \>'c=«':nnr.siii*
j hall, docs iu>l carr\ the san>e wfij^ht {ilw. I
■ thill!; tliat matter was so \rt-ll explainu) hy iV'
I Uaniod i-fntltnian at the bar, that iherc lutd
■ no more to that, it being a matter agreeil,
that wc have a power to proceed in this mut-
- ter. Now I will take leave to observe some-
thing as to tlie particular case before you. —
Though a gentleman that sp^ike some time
since, did speak to you of the nature of the
crime ; yet, with submission, I think there re-
mains something to lie addeil to what he said.
. The conspiracy of which sir John Fenwick to
. rue appeai-s guilty, is not only against the life
of the king, not only to depose the king, not
iivXy a conspiracy to raise a rebellion, but at
the same time to contrive an invasion from
France, and bring in a fureign |M)wer. I know
not what better expression to tell my thoughts
in, than by using a term which physicians use
in some desperate cases ; they tell you, there is
a complication of distempers ; and I think this
is a complication of treasons: this is the high-
est crime, and it is atlrmled «vith all the aggra-
vating circumstances Uiis crime can admit of.
Now, in giving uur opinion, and passing our
judgment upon this matter, I think there are
two considerations ought to guide us : there is
a consideration wc owe to tlie prisoner that is
' brought before us : and another considcratiou
which we owe to the conunon security. As to
the first of these, it being a matter of blood,
wherein the life of an Englishman, the lite of a
. man of his quality and figure, is at stake, wc
ought to proceed uith all the calmness that is
t>08sible ; and I do agree, if there was noihint^
mt presumption, that ought to be in favour of
life. But pray let us consider how this matter
stands: \vi ine desire those gcnlliiniu that are
of opinion weouijiil to have so nuieli lCiulerni*ss
for the prisoner, to lay before iheui nnnthcr
Geene, and S(»rt of eonsideration, at tiie same
time. J do consider the hanUhip (if I nniy use
that evpression) of passing this sentence ; I ilo
consider what a eoiuiiii'Mi uc had been in, if
tlie voniri\anri' thut i. as laid ha<l laki-n rth'rt ;
that is the i\cii;Iili< .>l pari of the matter JM-titii'
von: anil tiiooj^h it was di^a|ipoinl(d then, 1
know not how far oil' it is at present ; litis
onyht lealiy to weiiih v.iih>on. And I hope
I i;ia\ taKirK'avc, npnw tins oecasion, lo ohs^-rve
to yjjv, what one ol liic wisi'-.t and h/»«i r|" ih»-
l{uiii:tns said upiui an (ieca>>i)u in tills natnri':
he tells \oti, 'i'hat a man r:;;;t \;o;;Id (•.•ii^liUr
fiis dniy arii^iit, mnsl consiiK.T the maU«.r i:i all
i\s p.irts and eirenmstanees ; aiid wlun that is i nothin;r he added lo it. Ilett>hl ymi \er> well.
<!oi;;\ nau\ act adKpiat,-, as wi.il t.i tlit- < vmu- | it {% one \\\\w^ what 1 trust to t\M hy my sc-r-
mniiity, as id h;:n^. It'aml his i.t i:;h!iOMr. I j Kint, and an-ither thing what I di by my-
ivntiMaiijdy that t.) ih.- pro.^cnt e;. .e ; and wonlil \ self, ft i«< Mvy oi»\ions to any man's imilrr-
1 11.-.'
h....
i;«.!ilUni.n ll.at i'A|r.tss ^..l !:ii;rh
iJU'Ss m ilii-; casr, lo ha\c s»inn {or tij«'
,;i:r Til. ana thciisi-lvis. li wa*. l.Id y«:ti.
ii'C pri^-cmi-r hir;<ri' \ou dn s n<.t s'. .nd
■ ■ d 'ii a:"!y eriiiic; it was told yon at thf
li.'it iIh: mo. t '.le on'^ht lo j)r..t;.i.i! t<j, is
no li.i i.ier than t» leave hiiii iii ilu* <<»nt;,i:..!i \. i.'
i'.twW, u'ww. I think, Willi siibni'issi«<n, ;ht' pri-
. s »!»• . ■ ;...mI-> fofivi.-ii d<.'t'hii;h-lna«on, uith the
•Ii:;^1m -i coi.vielioii upon t.arlh, and that is, the
^« i.t ial i:oiiM.!il tif all mankind ; l'«n' 1 will be
•luid tu buy, I do \ erily believe, thut llitre is
slaiidini;, it" ihis |<ovvtr wen* lodired in tlir
inil^cs, wh:;t use tlii-y luiniit make of lliis
(ioiiniiied powir; h.it no i^i ntleman can mis-
triisi :4ny thiny tliat siiall be tlonc by this bousr.
--\notlier ohjeetion that was made by the
eoiinscl for the piisomr, was, says he. This i»
i\ i»K nee, or ii is no ev idenee ; it" it Ik? e\ ideiue,
linn, says In-, why do not you try liim at law."
It It he no cvidenee, w hy do >on admit it here*
Ni:\r,Mir, with >uhmission, this carries the fac<^
and form. of an ar^nuunt ; but if you take it to
' pieces, I thluk there is uo couvincing weight ia
rrs]
itpoii a Silt of Attainder.
A. D. 1696.
ieii
t: for, Sir, the reason why this matter comes
wtore you, is, because by tlic absence of* one
if tbe witnesses, accordiuf^ to the formal part
cf the law, sir John Fenwick will be acquitted ;
tint it is tr(*nrrally ajpred, that the consf-quencc
of so great a crime (roing* uiipuhished, may be
dansreroiis to your posterity. This bill ot at-
taJQiirr is bnuinrlit into the House, thai you
ihny supply that want of form, you bein^ con-
TiD(:('«i f if 'the reality of his crime. — Anotlier
ol)jiTiinu made by the counsel at the bar,
WIS as to captain Porter, w horn he refleclccl
iinoa ; says he, shall a man that hath owned
bimself guilty of such a villaiuy as the murder
of the king, of a sudden have such credit as to
nray with you ? I would take leave upon this
•ocasioii, to rcfieat to you what my L. C. J.
woo the bench did observe at Chamock's trial :
Ine same thing was urged and pressed home
(j Charnock; and ray L. C. J. was pleased
10 take notice, that it consisted with the wisdom
aid justice of all states and governments to
aflow of such evidence, because without it
they could never come to the knowledge of
aay treason or conspiracy ; for, he added,
VMin will you have an account of these things
ibm but the actors of them ? — And therefore,
when they are penitept, and willing to atone
Ibr their crime, by doin|^ all the service they
no to the state, and justice to mankind.
We ought not only to receive, but encourage
Ihein. — When the danger the government
woaid be in, if you did not pass this bill, was
vged ; it was answered, but what danger will
ra and your posterity run in not passing of it ?
think tht> matter appears so plain and clear
lefere }ou, that when all the other parts of the
meiUo:! are passed over, I should think it a re-
fection ufion the House, to enter u|k>ii a par-
licalar answer to it. I had not said what I
kave said, that 1 think any part decisive, but to
char roysplfto the world for the opinion I am
foing til give ; and perhaps what i have said,
■ay give occasion to some others to say somc-
Aiag that may be much more to the purpose ;
hot for thereasooM 1 have given, I am for the
liH.
Mr. Sloane. Sir, I as little care for me<l-
Aflg in mattprs of blood, as any man, and
Aould he glad to avoid giving my opinion in
ttb case ; but I think it is incum!:eut u[>on
ttfiy gentleman that hath the honour to sit
kft^ in point of trust ; I think it his duty to
ttem whom he represents, to the king and king-
iaiia general, to give his opinion when he is
Aar and satisiied in it ; and ir I was in the least
tetisfieil, f should venture the displeasure of
peers.^ Tliose gentlemen that have made that
objection, have initicly. forgot the other parts
which is the next sentence ; Nee super ibiiuuSy
* nee super cum mittimus, nisi per rcgulart^ju-
* dicium parium suorum vel per legem terr.T.'
What do they make that to l>e ? ft is true, in
the ordinary course of justice, persons must be
tried, a commoner by a commoner, and a peer
by a peer ; but there are several sorts of trials
and laws in the land : and when you come to
consider what is meant by ' per legem ten*a;,'
you have the commons lex terra ; you have
the statute law, and lex iocif the laws of par-
ticular manors ; and there arc several sorts of
trials besides that by jury ; there are trials by bat-
tle : the defendant in case of appeal may try
it by battle, and he that is kdled loses the
cause. Then there is a law above all these
laws, and that is the law of parliament, which
nciy lord Coke calls lex parliamenti znd lexpar^
liamentaria in another place, which he says if,
* ab omnibus inquirenda^ but * a paucis nota;'
and it is not fit it should be known now far they
can go (and so it is in chancery), and that is s
law that is unfimited, and that b one of the
laws saved by Magna Charta. 1 say, there-
fore, that without .any incroachment upon
Magna Charta, or any law whatsoever, you en-
ter regularly upon his trial. — 1 would answer
another thing that was said against a trial in
parliament ; and I must confess, 1 <lid wonder
to hear it from that honourable ancient nnem-
ber, that if he was to be tried, he should rather
chusc to be tried in Westminster-hall. Why,
sir, bcf«jre I should have given so sudden a
judgment as that, I won If I have consfdered
what my case was : If I had had such a case as
count Coningsmark, a bad cause and a great
deal of mon«;y, I would rather be tried there ;
or if I could on tried as sir George U''alceman
w as ; but if J had a good cause, aotl would use
no corruption, instead of twelve men that might
l»e corrupted^ 1 had rather be tried by 4 or 5(X)
gentlemen that are beyond it. You sec how
trials went below, the trial of my lady Lisle, that
could neither see nor hear ; and there came a
person to her house that wus proved to be in
iMouniouth's rebellion, and she was burned fur
it. — Then as to the case iK'lbre you, 1 would
oiTer my reasons why 1 believe this gentleman
to be ijuilty ; here is capt. Porter, he hath po-
sitively sworn, that he had another meetbig at
Mrs. Moiintjoy's, and there they did consult^
an«l ai^rce to ^^end Charnock over to France ;
and Cliarnock was directed to go witli a iites-
sago to invite a foreign power ovc.r here. .^Noir
the cpiestion i.i, whether he is to be believed ?
Ik* House to alMcnt ; but upon the whole case, { nnd 1 would go upon the same reasons for bc<
iUt&c proof that hath been given, I am very i lieving a witness, as they do in Westminster*
4BBr that sir John Fenwick is gtiilty of this i hall ; and will go as far alimg with those gcn-
^|NOD that he is accused of; and that it is trca. ; tlemen, as to the cre<1ibi!ity of a witness ; but
■Ivitboat any strain, and well wiirninted by | if he be to becretlitrd in Westminster-hall,
Medeots. — I would first take notice of what ' why is he not so here ? And therefore, if they
said to your jurisdiction in general ; I re- haci brought any testimony :igninst his credit,
iMer it wafs said this was an incroachment as made him guilty of perjury, or forgery, it
^tfaffna Charta ; for by that, no person is had been an objection ni;ain>t his testiiuouy ;
fWtriedfbr Lis life, butby the judgment of his but it was so far from that, that they did not
roL. xfii. . SI X
675] 8 WILLIAM IIL Proceediiigs against Sir John Fenxvick^ [67S
offer to prove one word of that ; bnt what was
■aid waa laid from the couosel, and that is to
go for DO evidence. The counsel did indeed
alledg^ against bis credit several things, but did
not prore any ; and if they had, thev would
not hare taken away his testimony in Westmin-
ster-hall: that is, that he waa concerned in
the late intended assassination, and treason :
this was the same objection that was made
below; and they brought witnesses to iirove
that and some other thinss, but they did not
weigh any thing ; for if it should be an objec-
tion that he was in the conspiracy, then vou
can haye no evidence of any villainy, for they
will never trust honest men with it Therefore
I do take it, that Porter stands before you as a
Tery credible good witness, without any imputa-
tion whatsoever. Then, sir, say they, he is not
ujpop his oath ; that is an objection to your ju-
nsdictloD, and thou^ they say they own your
jurisdiction, yet when they say so, they speak
against your jurisdiction ; and by the Kume
reason you can go upon no impeachment what-
•oever; for you can in no case give an oath.
Then, sir, they tell you, he is but one witness,
and that it is in the case of treason, and there
ought to be two witnesses ; and therefore though
you have jurisdictiou to do any thing wliatso-
^^9 yet yon have no jurisdiction to go upon
this caose. Now, sir, because this seems to be
the moat formidable obiection that is insisted
Ob against the proceetlin^ in this rase, I beg
your leave that I may fully answer it. — And
taking it to be true, that the fact is proved by
one witness, I conceive we may proceed in tins
cause, though they can't in Westminster-hall ;
and I do take it, that there is a great deal of
difference between one and the other ; and I
do not take your proceedings upon this bill,
being there is but one witness, to lie any
strain, but what you may extend tlie legislative
to, without going beyonil what hath been done.
I tlierefore heg you to consider what the law
oi-iffinally was as to treason, and how it came
to be altered. Before the statute of 26 Ed. 3,
it was uncertain what was treason, and what was
not; then the statute came and reduced it, that
as to all inferior courts, these are your treasons,
and no other shall be adiudgeilso; bnt the
parliament reserved to tuemselves a i)ower,
that if any case should happen like them, they
w ere to determine it themselves. So, sir, tliit
at tliat time, and after that time, one witness
was good in case of treason : as now it is at this
day fur robbery, felony, or any other fact but
treason. And till 1 £d. 6, one witness was
good in all treasons : Then comes two sta-
tutes in Ed. 6's time, and the first takes no-
tice, That since the U3 Ed. 3, by several
statutes treasons had been made which were
unseasonable, and therefore re|)eals them, and
makes several new treasons: Then c^mcs a
Proviso at the end of it; * Provided always,
* that no person whatsoever, after the 1st Feb.
* then pcxt coming, shall be indicted, ar-
* raigi»ed, condemmsd or convicted for any
« ofignce of tyca«>n, &c. unless the offender be
* accused by two sufficient and lawful wit-
* nesses, or shall willingly, without violence,
* confess the same.' Now that Proviso relitei
only to the treasons particularly mentioned in
that statute. Then comes the next statute 5.
Ed. 6, and pursues the same wonis ; But nwr
this did not mean any facts whatsoever that
were left to the judgment of the parliameot,
because these facts were not within their cog*
nizance. They are nqi parliamentary wordi ;
indicted, arraigned, convicted, but only nscd bj
the courts below. Why, sir, if it be so that ooa
wimess is sufficient, here vou have not only
one credible witness, but be is propt up ei-
tremely well by collateral circunislaDCes ; and
though I do not allow that below they can |»ro-
c^ed upon one witness with pregnant drcnii-
stances ; yet for the reasons giv^, consideriw
how this evidence is propt up, I think it isut-
ficient before you: For tnere was another
^ itness against him, and it hath been profcd
what that witness could have said if be wh
here; aud it u plain that men have died
upon the same testimony. I must confii^
wlien I was for readim; of Goodman's ezann**
tion, Sec. I was not for reading them as ooa*
elusive evidence, nor do 1 thmk them so ia
any sort, either the conriction of Cook, or
Goodman's examination before a jnstioeif
peace ; but it is a stronger evidence b tkii
case than any other, because the witaea ii
not dead, nor is he withdrawn by the meaai >f
an)[ body but the prisoner, or his friends;
which, as I take it, appears upon the evideoce;
and if so, I think it comes to the case. That if
any one gets luy deeds, if he will not prodooa
tlicni, they shafl be presumeil to Ije what 1 aj
they are. I must confess, the at-ting of his
wife or any agent mi^ht not be evidence, if it
appeared tiiey tlid it ofliciously without hit
knowledge ; but being Clancy said he cams
from sir John Fenwick, and it was for sir Jtfka
Fenwick's advantage, I will believe it was by
his privity : And for myself, J think it DO
strain, if iii tliis case we take him to be a good
second to captain Porter, though it ought ool
to be ndmitied in Westminster- hall. — Thcu itii
said, 'i'hnt you have no jurisdiction to proceed
by attainder in this case, where the person does
appear, and he is in the hands of the law, and
ready to take his trial : 1 quoted you ao io-
slance the other day, 12 Car. 3, where they
attainted persons that were dead, without exa-
mining one witness ; and 1 have viewed aH
the boidka since, and there is nothing appeait,
but the bill ordered to be brought in, one read-
iue, and another, and some petitions for maluBg
of savings : There is one rank of people thai
were dead; a second rank, which, as JH
were told from the bar, were the kingr*s judgv:
some of which, it is true, were tried by As
law : But how ? Not by the direction of iM
parliament : It was before they came into Ac
nauds of the parliament : and the uBiliiniri
takes notice they had been tried. That vM
another sort that was neve a tried, bat abseanil
and though they might have cotM iail Afl
npon a Bill of Atiainder.
r the hw and been out- tawed, the par-
took cogBiance ot'thona, and attnmlcd
trpasoD. Hir, I do take notice, that there
ronrth sort of people convicted at that
>r if we were confined to the rules of
nstter-hall, do doobt we could not give a
udnrroent than that for treason) ; there
i lord MouDSon, sir John D*i\nvers, and
and the statute recites, that they were
ed in the murder of the kinc^ ; yet in
to many bad actually suffered, they did
e them the judgment of treason but
t their estates, &c.— This is to shew
jurisdiction the parliament have over
;, and how they can alleviate the punish-
■cording* to the circnrastances as they
kfore them ; therefore I think this is a
iHif that we have a jurisdiction to go on
(* bill ; and at the same time, I say this,
I put it out of the case, whether the pri-
* a little man or a great roan, that is
judgment before us ; and I would put
the case, what a good thing his disco-
)uld be ; I do not think that a good ar-
: neither do I think it any argument if
n escape, what danger we shall be in t
0 give my judgment from the argument
uilt, and our jurisiliction.
Ptlham. Sir, %Ue learned gentleman
ike last, seemed so very clear in his
, when be began to speak, that I was in
e would have given me and every body
tiun ill this great point, especially when
D with Magna Cbarta, which says, That
lan shall 1^ tried by his peers, or by the
ihe land : I do take \i to be part or the
the land, that no man should be con-
1 for treason without two witnesses ;
r that he did lay his finger upon the
itold vou, the great objection was, that
rts of Westminster hall are so governed
3 down, that they cannot pass any sen-
6r treason, but upon two witnesses ;
told vou, they ought to be tied so : In-
i did say we were not tied so : But 1
you, he did not give me any satisfactory
why we should not be tied so. It 9
e are not tied, and it is impossible we
for no act can tie thele^slative power,
eral gentlemen have said, that though
re aereral statntes th»t declare there
t two witnesses in cases of treason, yet
> say, that in case of attainder by par-
, one witness may be sufficient. Why
not be thought, that these acts extend
mslative, as well at the statutes of £d-
rbich itb presumed, that the parliament
(weed open one witness ? And I take it,
se beine no such hint, it is a presump-
it the ux terra does crave an observa-
it by the legislative powers — 1 did pre-
estenlay to tell you, tkat Mr. Alffemoon
did staad upon it as bis natural right,
ey eould not proceed against him, there
mt one witneM : I dtd not bring his
pmllel^to thi% or think that his autho-
* yoa } but he was a man
A. D. 1696. [6T8
that bad that love to liberty, and the good of
his country, that he would not have said so,
even to save his life, if he had thought it inoon-
sistent with either of them : 6ut I have k)oked
upon his trial since, and there he does declare,
that the being condemned by two witnesses,
is the law of Ck»d, and the law of man ; thejust
law that is observed by all meu, and in all
places ; it is certain he reached even by these
words, the' power of parliament; when. 1 do
say power, I do not mean, but that when such
a law is passed, all are bound by it ; but in
some sense we may say, you cannot do what is
not just for you to do ; you can do but what i«
just and agreeable to the trust repotied in you.
— The gentleman says, he thinks it a strange
opinion of him that said, he had rather be tried
Of a jury than the house of commons : Indeed,
it be could be sure of such a house of eommont
as tiiis, he might retract what he bad said : But
I have seen that done in the house of com-
mons, which hath not made me extremely fond
of that trial. I have sat here when 6 or 7 no-
blemen have been declared enemies to tiM
kingdom without any evidence at all, and Um
reason was somewhat like what it n now. The
power of parliaments was brought in as an ar-
gument then ; and it was said, it was enly ia
order to an impeachment, but no impeachDMsnt
followed ; j^et these noblemen went whh that
brand in their foreheads ; and if any distnrbanoe
had been, they had been exposed to the fary ef
the people : And though we are sure of this
House of Commons, and may be of all in this
reign, yet I know not how facts may arise, and
what parliaments we may have ; and upon that
account 1 am very unwillmg.a precedent shoohl
be made, at least contrary to the usage in all
manner of courts whatsoever.
Sir Tko, Littleton, Sir, I shall not troubia
you lonff in this ddMle, that hath taken up se^
much of your time already, in the consideration
of some matters we have been upon ; though I
did think your time not very regularly spent,
tili this occasion offered itself : 1 hope, there-
fore, now it will take up k'ss of your time. I
see the great matter that was insisted on be-
fore, is insisted upon still ; and I do think we
may say it among ourselves, though we would
not let the counsel, that we are ti^ up in this
case by the rules of Westminser-hall ; but I
believe if that was the case, and the question
was no otherwise, than, whether or no we are
tied up by the rules of* Westminster hall ? I be-
lieve it would receive a determination, that vre
are not bound up to those rules. — But 1 will
take leave to tell you what I think is proper for
us to ground our judgment on : I think one
great reason even of those who are aeainst the
precedent, why they did admit sir J. F. to have
coonsel, and to examine witnesses, if he had
any, and to cro^ examine the witnesses, and
why they were wiUing to hear evidence on both
sides in the nature of a trial ; the great reason
was, because that in a case of so great conse-
?|uence as this is, they would have the host in-
ormation they cciold obtain. Why did they
8 WILLUM III.
TR
679]
de^^ri! tf> lie iiiform^r but that afterwards Ui^y
tniM hy ihdr Ua^nd^ upon their b^ar^i, iinil
gi^i! ilielr juiTgitjetit itjHJii iheirpritale oj^inion,
\vlidt*cr Jfc(5 w II ji guilty or no? They sity we are
ftOl U* {fivf? oyr jiidg:a]ftitu{t'>n our ]inv;t^te ojii*
11 Jfij*, I id\f II v^ witt (J I V, as not long tkgo i^« were?
fiot to liiWe oyrreljj^iw up m our private opi-
niu'ii iidUji:r ;) And ivheu | am jutstLiit:d in tbat/
r will i-ely »po;i il. WUellaer tbb be sirietly
)i:^il i!f iJcoc^i I do not lay so iiiutjh wei||ht
tijion il| iie» whaber It bath fcatistied my con-
sul en ee ; ftfid 1 beliefs ther# b etot a man in
the llotiGe but b so (upon what lie bath lieKnl,)
{Still datli ticlleve that tiir J, F. is |f uilCy ; and if
we believe be ta guilty, 1 would be glad to
know by what rules in ihe world jiny man can
gtr«? hU rot€ Et^in^t ibis biH, b^ng uf tbai be-
E^r. And 1 lell you wby I ihxnk every man
bt'li^res so ; be cause erery map iu the kb^ilocti
tbat haib not heard scimueh %& we hare beard^
doe^ believe him tiA 1>eso ; oo'd I cannDtthiuk Limt
tbelr repi<esenta tires only should be of another
opt iii 0 n , — \V b at c V ideoce b a r e y 0 u b ad f Yon
liare had eapt. Porter's e%'ideucef Eind that woald
be gaiod «veu. in iiirerior eonrls ; and b^des
fhali you have the evidi^uee of what GiKidmaQ
iljd a Wear beJbre the gfrand-jur^ ; you have
bearti ii'hat be did s^v^eiir, anu the gmnd-jury
dUI bcUefe bia» ; you have heard hkewiiie ^vhal
Uti' did »w tear ill another cause t^lhc petir-jury^
nnd tJiey belief cd h\m^ and eonfi<ited the pri-
HotHu* upon it : And though this be nat legal
ft(mi\ atrictly speaking ^ wUl any body &ay tnat
llEive tttiaou lu disbelleire this luan, and thinly
|ie had sworn talse f — Ay, but here h but otie
M'ilot^t g^enUernen tell ^ou. I ivill put you a
casti where 1 believe this hiiuse woultl attaiut a
inan without aoy Witness. Suppose two per-
sons had seen sir John Fenwick kill the king
{ I believe we should not hsTe pulled him in
pieces in a barbarous manner, but he would
nave bad a trial) and suppose before his trial
'they had been conveyed away, if before they
hadswomthis to ajg^rand-^ury, and they had
found the bill, [ beheve this bouse would have
attainted him for it.— Sir, I do not ihip^ that
We should stand upon these little niceties, nor
|be hound by . the little formal proceedings of
other courts, when the government is at stake.
We are sent hither to take care that the public
nfety do not suffer any mischief from the
enemies of it : We have had plot upon dot,
and I have heard so much said on behalf or th^
Lancashire plot without doors, that I wish we
(do'not'get an ill name uoon ourselves before we
)iave doae. We have tnis power to exert upon
jBxtraordinary occasions ; and here is a inan
that' hath endeavoured to subvert the govern -
yaeni and well-being of them that sent you hi-
gher. 1 hope you will use it now ; ana if they
1
)cnew who were not of that opinion, I believe
those tha^ sept them would banjly seqd them
JMiy more.
Mr. Howe, Sir, as to the argument, . that if
it was known bow we gave our opinion, those
^ai are against this hilf, the. people would not
pb'usethei^ai^: lampotftfraidoflhat; I
Proc^dmgM againd Sir JoJm Ffntdck^
havcf been t*dd so oiVu, and vH I flf^J Oir \^r^^
pie I live ftfo«n:^st^ uae ine Wtler aim ^ \\*\
fvery tlay ; and I believe, air, tbtiy v :
III i^ me I when I bey vviU Iwy *ilhtr tr
I tuusiiii some ineai^nrr i, nrit what w; mr{\
tu be rellrcltd oti aii Ir '^'^etiiltman, m
thirt be taid, be bad' r.«i<.(^ . ^^ Mi*d hy 12 \.\\^n
40Q. I Hill of bi^ npiniuOt Eind thkni m my u-^*
*ou for it; 1 ha*i ^.v liiwr-il vXiAli^vrv- in tJi-kit
oftl^e n\ and iT .11
have offended t J . . ; .: .,* n;^ i.; j t .. .Lii-
drawt^, aud that i-auuuL be dtxie in any case
here, — But genlbmen piU the %tre^ of their
ar|2^uiiii'i)t n^kin ihalwbieb nob^MJy dt.-nit^ ^M
prove it hjwjdsutndy ; and well ttiey nmy ; kt
it is self-evident^ ibe powtrrof p^irliameut tbey
insist on, when iii*bfrdy preUnids biU we bavf
u puner i<* do what wre piVaT»e ; but I muL^say
(if their power, what Brat-UJfi jWiys of theking'f
poweiv *■ tfoc tamen nan uote^t facere^ i)w»4
' noil potest justfe factre.' it ia saiij« \Veare
no I tied up 10 the rutes uf lVestmhi»ier4iall ;
^ve are not m ; but 1 beg leave to id} ibem, tj)^
what is reason aiidjuitiee in \Vciitmit^titer^b>4
is so every where* And I do take these pir-
tieular paints we speak of, to be grounded upoo
reason and justice, Qiid si> far we are to pa^tif
tliem. — Twi> evidences waa not given as a r»- '
$U'flint upon W*pslminster<hall, for feox iky
should do aomeibiij^ that is ill, for they are u«
awtrahU^ f^r erery lb Lug they do ill i but ibey
were allowetl tt) Ihe people of England, tltuS
they might have a fair trial ; and it wna lltiiu^lit
conformable to the laws of Ood, the law uf
rea^ou, and the law of all couiiliicfs, that csj
mattes titie shall be taken away upun aoy pani-
cular occasion. And iur to say, that a mim'f
lilti may be takeu away by tv^o v^iiue!£se!» ia m^
place, and hy one in another i b to w^y^ ibut
there is no certain rule lo prove a vaM\ g nikj
of a crime that may forfeit tiis Ilt^^ which is u^^t
adfuilted in aoy country wbauoever,— Bu|
truly, sir^ we are going a little further ; f«r tlie
geiitlemeu befure told you, there was no npt:J
of livo witue^se^, one would serve i but ii{>w
{bey go a little fui dibr, for they tell you, ibcre
tieeda nerer a one al all ; ibr I do say^ if every
gentleman here ij^ to be guided hy bis private
upiuioi?, tjieraia no man but before he biactl t
this cause did conceive in their opiuiou sopf .
Judgmeutof bia guilL And, sir, J tuink no uma
but would bale told you« that would have k^eo
au unjust judgment. — But they do say, Tliat
tiie bill ot tretrsou that was made last sressiijns
of parliameat waa to Itiuit VVestuiinster* ball :
and that [ will tru$t iliat with mysielf, wbidJ I
will not trust with my Kervaut. W hy tndy^ if
t^or my servant, was to commit an error/ ur a
great erime, 1 bad mther my ^rvaiit did itf
Uian myself : but 1 do not think that my s^t*
vant should be hound up from duing an ui^
just things and myself shuuUl have the liberty
\ii do it. Another tbin^ that Uw providcfl
againat was, that people stiould not b« han^
witbuut sumeient evident^, and tlieae tbiogf
have been loug complaiueil oi : bur I never
thought that }£^ eYideoce of ojie witness, mi
.4t ^
681}
*vpon a BiU of Aitakideu
«ic» witoeMi woiiM be sujiport^il in ibe^e Oays,
«— liut^ mr, wimt ha*e ^oii dune? We have
^pt ' bein^ <^3crciite(i by an arbi-
Kb .n aD tinkwi'til way in Ue^t*
TSiu'iirf jiau : i kit if you give Ibis cxoniple, yon
bate broughl tbe same pEXHrt-eilitig^ mto Uits
^^use, anil ijiat ihey mfty be perpeiuuijy exe-
^Bleii here, auil so tbe sttljject \\l\l be nt^rtT
^Be .s,iii r for ih^ bill oi' treason. — kmi \ k\q be-
% ^e, Tbal It is btUer ibal a very
bei ' i,t, or a mistake, sbould be com-
Weii ill VVesltQiiiiiter-hail lor icu years fo-
Lbtrr, ibnn once peqietrated in t bis house:
1 my reanati is liiia, because We^^l minster-
bare a taw to be tried by, if'lbey transgres-s
|t lav« ] and there is a wuy by turning- out of
^, and other things ; audtbis boiisie hatb
riur pow<rr ; and \4 beii they do a thing,
|Ue i» tt Uw J s^ tbut this houM* (as it
leu bet"t» observed) can make this na*
$\ milin^uty, liecause this hotlse cMi oidy
^^hli^ih aruitfiiry power and misery upon this
|ji>n by a law. — 8ir, as to the evidence, to
ftunietbini^ to it, sinc« every botty hath
ke t<i it ; fur my part, I do confess lo you.
Ioniser I sit here, aod the more I hare
Urd of this trial, ibe ks;* I have bi*en con-
witbiii myself, thai these w itnesses can
pw any tiling of sir J, Fenwick's guilt. I
re heard captain Porter jiive his evidence ;
: that i^ DO liufiicient proof to rne : I have
heard what evidence Guocbnan did i^ive to ibe
nd jury ; l>nt whether they did ask such
qtions as 1 i^huiild, tf 1 hail been of the
I jmy ; or vt bcihcr llicy did confrtmt him
ill €\ idence, I caiinol telb 'rhcrulbre though
l^rand jury %va» convinced by it, it bi no
un \Q convince us 9 because we mi^j^ht not
[convinced by the same evidence — But to
further ; there is very great reai*ou to be-
te that (jiHiilinan was not then at this place,
th^t hot onti word tbut (joodnian says is
1 iiaie stich rea.son for what I say, that
Dk*s trial had been before this liouse (not
(D arraign Westminster -hull, 1 hough I think
|i^e are ti nujR'rtor ^Kiwer^ and I muy say » hat I
fiteastf Qf thitt trial) ; 1 s»y, if Cook*s 'trial had
beeu before it)i^ house, and what I have ticard
be true^ 1 do tliink tlicy would bardly have
iwuml Cook guilty np^m Uooihiian^s evidence :
■r there Here three as positive evidence a?
^pihl h4^ that he wus not at the place when
^E - was. And I observe a little failure
H 1 ' »r(i;r'ii evidence in that point ; for
T 0'» iJ"t I lank it proved hy captain Porter,
tlfttt Goodiiiun was by whe^ ifns discourse wa^ :
he says, he fepake of thi^ ihtng at Mrs.
Ia/j03\s, and dined there. \^Manbcrs. No,
" , W416 at ihc Rtng's-head.] Well, there
t one place where it was. Now whether
Porter heard them talk of it before
I oame to, or whether Goodman be a
he having been ihere but the
' part fjif the lime, which seemed to nie to
lime ihcy should have given over their
"lie buainess, they lii&ving been so long
ll^VA'e I but it du^eM uol lippear ,lo oie
A. IX J 686.
that Goodman ean l>e a good witnes^^.-^Bot I <
take it, that it is not junt nor reasonable to Bnd^
a man guilty upon one witness, and circuin^ 1
slaoUal evidence. I did inentinn a case whefi^
ihere was a positive witness, and a ch'cum-*!
srauiial witness, it was in my lord JDelanjere'^j
trinl; anJ yet that was not thought a con-
vincing ari^ument by the lords to fnni hini
guilty ; and \ hope no c(»nsideralion will oblige
us to do that, which I am sure we should hlain^ \
them lor doirifj. — -Tlie consequence of thiis, gen-
tlemen say, they df> not fear. J believe, if sir J. ^
F. bad bet n told, when he waii major-general of \
king Jameses army, tbal I should come here ta
sit upon bis life, be would have laughed at it«
and Umu^ltt it impossible ; but the contrary haf 1
hapjieoed: And 1 have seen parties hang onfi
ancnber with such violence, I pray God wp
may keep from it : 1 do noi know ; we are al|
eonrerni'd in some measure, it having been thfltl
unhappiness of this naiion, that at one time nip I
another every body halli been concerned, that *
they may have a proceeding of this sort again^ ,
lliem ; and this surmounts al) tbat at present ,
gentlemen can do; for it extends beyond all
pardons, and will reach beyond the act of In-
dcQinity. God knows who may lie served so^
notwilhstandiog all the act of Indemnity.— 1
Sir, there is one thing that is said further, wbicli (
the gentlemen at tlie bar conclude with as a
substantial argnment, tbat we do not aim ajfe 1
sir J. F.'s blood (Gnd forlnd we shouhl), but a|
his confcsiioo : Vou will bear read the biU ,
once, and twice, will commit and pass the bill,
(sir J. F« not confessing), and f^till tliis is not to
aim at his blood.— But it ha}i|jcns, perhaps,
that this man knows no more of this matter ;
and this man is racked in a manner to dealh»
from reading to reading, because be dues cot •
confess ; and at last he comes to be hangeif,
drawn and cjunrlered (instead of high-t eason)
for not c^'ufesstng i I. —This I lake to he ihf
dangeronsest part of all the arguments thai
have been nrgeil: For ibis I must tell you.
That according to my private opinion, I do
beheve thai sir J F/does know of no more*!
persons concerned (nor do 1 beliuve he knowa
all that he jays) ihun be tells you. He hatb
not hten a man that havb kept company with
gi'eat men : lie liaib generulty relfeved the
^oor Jiicobite otBcers : Ther* are five people^ 1
as 1 lake it, he hath told you he did converse
with : I would fain know iu what plot any maa
converses with abciva five of tlie plotters^.]
There may be a plot tbat may be most danger*
oLis, and yet a person ibal knows of this ptpt,.
may not know iibove two or three others iha|
are concerned iu il.— -But the great arguntenX
ln^ Take care of your government. In tt^
lirst plut^e, ibe}^ must suppose the safety of ih^ *
gavernment depends npno his execution, of'
why do they u>e it ax; an argument ? Bui I wit^||
iJicy would shew me the government would b^
one penny the worse, if the bill does not pass^
Do you want examples of nunislmient to detar
men. No ; you had lawful proof against fout
or tiye pervouB^ aad tbej baje been tyecuied |
683]
S WILLIAM III. 'Proceedings against Sir John Tenmckf [0BI
Here are examples made, that nobody for the
fUtnre raay presume to plot tog^ether, aod not be
executed.— VV hat is the reason of this bill
then ? . Why, there is a plot going* on. Sir J. F.
hath been impri^oneil this six months or more \
and will vou hang him because there is a plot
going oar What coaseqnence is thai? Do you
think that he knows any thing of it, or that he
can discover itP It hath been startf^l since bis
confinement, it may be, and be knows nothing
(»f it : So that as to what is pressed of his con-
lession, I know no one thing would be gained
by it, that could be useful to the gorernDoent ;
for I believe all hath been discorcrad already
that he knows, and that plot bath been utterly
disappointed, and they have been fain to make
a new one. Will you proceed in a bill of at*
tainder, unless the matter be of tlie createst
consequence ? The nreamble of the bill fur
attainting the duke ot Monmouth, gave a sub-
■taDtial reason for it; That he was in arms,
and could not be brought to ju&tice. That im-
plied, That if he coiud have been brounrht to
justice, they would not have attainted him. —
I think I need not give you mora arguments in
this matter; 1 wish 1 could hear those that have
been cnven, well answered. 1 shall say no
more, out 1 know this, that my private opmion
ahall never guide me in this case. It is not
the same thing with the case my worthy coun-
tr^^man put : In the case of religion, my private
opinion does not affect other persons ; indeed
it does the papists, where they will murder
others that are not of that religion.
evaded the co<;fnizance of Westminster-hall, be
is now brought before you ; and there are
several instances, where this House hatbtakn
notice of offences of a less nature, and for t
less reason than this is brou||fht befota yon.—
To quote precedents is a little drysubiect;
but however, I will instance in one, that (I
think) does assert the power of parliaments id
this cdse, which has not been mentioned jit;
and that was (as I remember) in 3 Rich. S, of
an agent that came from Genona, who wai, kf
a misfortune, killed upon a quarrel that hip
pened in the streets ; he that killed hin wh
brought tr# his trial ; it could not be bitnfk
williin the statute of 25 Ed- 3, hut be ««
Crought to his trial, and it was found only m if
fendendo ; but he being a public muttter, k
'was thought fit that the nation should lakcBMK
notice of it : and he was attainted afkernHb
by parliament, and there is a record of ii:
they did not think fit to make a general Imr,
but they made an example of the roan tlitf
committed this fact.— A great many gentfcMi
have supposed this, and supposed that, ui
what ought not to be supposed ; but 1 wl
make an easy Kupposiiion ; I will suppose dut
we are the Commons of England in parliasMil
assembled ; and if so, sir, we have a diwre-
tionary power to do whatsoever we see b fir
the good of the kingdom ; and if we are to
be circumscribed by tlie rules of Westminster-
hall, and we are to do nothing but what tbef
wouUi do, to w|iat purpose do we sit here ; If
we are intrusted with this power, and i
Mr. A'brm. This is a very solemn debate, j exert it, I think here is a fit occasion for jot
and it is upon a very solemn occasion. It ns a * ' '* " *»-:*- »2: »- "■-' -
case of blood ; it is a case that in my life-time,
I thank God, I never had to do with yet ; and
in this matter wherein I am now to be judge, I
will use as much caution as any gentleman
within these walls- I am so conscious to iny
own inability in what I have to say, that I
cannnt expect to convince any hoAy ; Gut what I
say, is to dischari^o my own duty, and satisfy
my conscience in that. I doubt not but every
gentleman considers the station that he is in,
and the trust reposed in hiui by tliose that sent
him hither: we are intrusted with the lives,
liberties, and proiierties of every man in Eng-
land ; and we are answerable for them to those
that sent us hither, to our posterity, and to
ourselves. In this matter, many things of great
weight and importance are before you : here is
thchfc of a man, the preservation of the king
and govenunent, and the power of parliaments
to be considered. Sir, as I shall be cautious
of taking away the life of a man, so I shall be
careful of the preservation of the king and
government, and the power of parliament ; and
though I do not think it requisite, nor never I That he does not believe^ captain Porter if a
will give my ronsrnt to support the government
or honour of this Hou«:e atthe expeuce of inno-
cent blood ; yet I shall not he afraid of giving
iny opinion in this matter, to bring a crimmal to
punisnment : besides the treason he hath com-
mitted, he hath crimes of a nature almost equal
to treason ; and for which, because he hath
to exert this authority. — Sir, give me leave to
take notice, that the strain of argument tint
w as used some years ago, is very niuch altered
by the same gentlemen; (I wiCl mention it) I
think it was 1678, when the bill of ExcluMoa
was brought within these walls ; tlie arguuieats
run then (for I have seen them in print) tbotf
that were against that hill ; What will you iJo?
say they ; Will you do this thing? Pass'ajodg-
ment against a man without hearing of bin?
Hath he been brought to your bar, to aoswer
what you have to say against him ? How 4i
you understand that he is guilty of the criiflct
you accuse him of? And they did. not on
those arguments against them that were for
disinheriting the duke of York : But the answer
then was. Do you dispute the power of parlii-
nients? Is there not a discretionary peiweria
the parliament ? I do take notice, that thoie
gentlemen that used that argument for the
bill of Exclusion, now use it a quite oootrvj
way. Sir, 1 think the fiower of parliament ■
not to he trilled with. — It hath been uigedy
and said a little while ago by a gent!
good witness. I will give you a good i
why I do think ho is
they at the bar think
would have given a great i
him off; and for the same reason, I I
Goodman to be a good witness too: SirJ.F*
was satisfied, that Goodman dkl know htv fhr
a very good one, M
; so too, becaose Ih^
at rewaid to hate lahci
■»}
t^n a Bill ofAUaindeu
was concerned, and be hath been prevailed
h to be out of the way.— Sir, here are a
at many circnmatancea that agree so well
:ethLT, that (I think) no person can doubt of
J. F.*s guilt ; and, 1 think, it is in this cose
ibe body polittc, as in the bod}' natural, when
uau is almost past tlie cure of physicians,
ipn a man hath a ping^ne, or a rotten
Hnber. which the physicians by the ordinary
•ans cannot.cure, the remedy the ctdle<Te of
lysicians themselves in that case would use
,thev would say, * Immcdicabile vulnusensc
-ecidenduin est/ — I am of opinion, that the
gidativc hath this power, and that this is
-oper occasion to exert it ; and to compare
nail thinjrs with great, it is like thunder and
engeance in the hands of Providence, that is
N used but upon extraordinary occasions ;
ad then it ought not to fail, for that makes a
an trifle with, and despise that power that is
M effectually able to exert itself; and if the
sord of justice be drawn, if they find it rusty
nd will not cut, they will have a mean opinion
r jour power for the future. — Gentlemen arc
Tiiid of precedents in this case ; for that rea-
BB 1 am for committing this bill, because I
wild make this a precMent ; and I will tell
OQ why ; Because it may happen in future
^, tliat ministers of state, and persons con-
mmi in the government, may be faulty, (I
lunk I miy suppose that) ; and as the law
liads now, be is but a bungling politician that
iDAot ruin the government, and yet not come
riihia the bill of treason to be hanged for it :
ind therefore tor the keeping an awe upon
loiitcira of state, and because I would have
bii House always have it in their power to
visli future offenders, as they shall see cause,
■ well as this unfortunate gentleman at the
v, I am for committing this bill.
Mr. Finch. Sir, tiic question now before
<ii,arises upon acase wherein^'ou have a man
eoKed of high-treason, and tur that there i&
« one witness, which by the rules of West-
■iner-hall is confessed by every gentleman
Mt legal evidence. 1 remember the other
fj when this evidence was offered, and an ob-
aioD madb to it, the answer was, Tliat wc
^t to hear it (thougti in Westminster- hall
Eild not do it), because we sit here as
ind we can distinguish what is legal
, mnd what is not legal evidence, and
I ffire iti just vreight to every part of it. I
oMcrve now, in this debate, some part of
\ eridenct, which no man can say could
re heen given according to the rules of law,
inasted upon, and weight laid upon it. — And
re they have taken mto consideration the
wcr oT parliaments ; and the method of par-
mcDls has been insisted upon. As to the
vcr of parliament, Whether the parliament
i do it? And whether, if the parliament
iJMlo do it, they are tied up, as gentlemen
I ficued to express it, to tlie rules of West-
■Her-baJl ? That the parliament can do it,
if a bard matter to ^rain-say, That any thing
Mi€f the reach of the sdpreme power of a
A. D. 1696. {^66
nation, the Iccrislative authority can do every
thing: Yet, though gentlemen' have said this,
and others have ob^rvcd. That there wanted
no authority to prove this, being self-ciident;
yet give me leave to instance in some par-
ticniars in tills case, with the authority of the
judges upon it, where the parliament have pro-
ceeded according to tlicruUni of Westminster-
hall.— We read in Hen. Uth's time. That the
lord Cromwell, earl of Kssex, was attainted in
p.irliament ; and history tells us. That he was
attainted by a law of Ins own making. Now,
says my lord Q.oke, That seems strauge ; but
enquiring of an ancient person that lived in.
tliosc days, he told him the meaning of it ; that
lord had consulted with the judges, Whether
or no, if a man was attainted by parliament^
and was not brought to lie heard, such attainder
would be good in law? The judges started at
tlie question, but could give no other answer
than this ; Truly, if such attainder lie made, we
know no law to find fault with it, for it is done
by the legislative authority. It fell out, that
the instance of condemning a person in parlia-
ment (not according to the rules in Westmin-
ster-hall) fell out to be the nobleman's case ;
fur he himself was so attainted immediately
after .^-Oivc me leave to instance in another
kind of authority, the authority of parliament
touching these attainders, and what has been
the consequence of them ; If you w ill look into
the reconl of Rich. 2d's time, I do not mean
the record that bath been quoted, nor the case
of John Imperiall, for killing the Genona am*
bassador, which was declared treason in pariia*
ment ten years after the man had been tried in
. Westminster- hall for it ; but I mean the 11
Rich. 8, how many were attaintc^d by tlie pro-
ceedings of those Umes ; I do not mean by acta
of parUament, but those attainders were in ad
extraordinary manner, not according to the
rules of Westminster- hall : And 21 Rich. 2,
the whole parliament, and its whole proceinl-
ings were reversed, and the parLament annull-
ed : In that year were the persecutors of the
1 Uh ^'ear tliemselves attainted : And 31st year
of Rich. 2, the act that repealed that pariia-
ment repealed the pardon too ; but in order to
come to the attainder of those |iersons: that
being done, was not enough; for the lord
Arundel had a pardon the 17tli of Rich. S.
Upon that they made a law to repeal his paidon
bj^ patent, that they might come to the attainder
of that lord; and that lord was attainted by
act of parliament. But I must observe one
thmg a little further, that that very parlia-
ment, that doubtless knew their own |H>wer
well enough, and that their attainders were
firm, being made by the legislative power, yet
they bad a little jealousy themselves of their
proceedings ; for they passed an act to make it
capital to go about to reverse any of those
laws ; and another act, that all the lords and
bishops should be sworn. Now see what fell
out after: Rich. 2, was deposed, for consenting
to those laws ; and Henry 4th, in the first year
of his reigU| abrogated the whole parliaraenty
es7]
S WILLIAJf III. Proceedings against Sir John FenxKteh^
And repealed all those laws. These tarns have
b!leen upon these extraonlltiary proceedings of
parliament. — Give me leave to frive you an-
other inRfance, and that in another > case, as
oHioas as possible could be. In the na order of
£dur. 2, there was Roger Mortimer attainted
in the first year of Edw. 3, and the record says,
That it was notorious to them all : and wnat
then? They adjudged him to be attainted in
parliament. VVhen time had a litile worn off
that extraordinary zeal (wfiich truly was com-
itiendablc, tliough it had transported them a
little too far beyond the rules if justice)', and
they came to consider what precedent they had
ihade for posterity, it had another face; for in
98 Edw. 3, was thatattifinder reversed, bccanse
he was not brought to answer as he ought to
liave been. There was also an act for attaint-
ipiT the earl of /Vnindel, which in the same 98
. Edw. 3, was reversed, because he was not
brought to judgment by due process of law. —
$ut non^ wea^ told, we are not tied here to
- the rules of VVc^tminster-hall. Gentlemen do
not enough distinguish in this matter ; the forms
of Westminster-hall, sa}r some; the rules, say
Others; and others say,* there is no difference
between the form of proceedings, and the' rules,
of Westminster- hall ; but I hope no cenllemen
do think but the parliament, ihou|rh they have a
liowerto act as they think fit (as instances have
been given), yet the parliament itself are tied by
the rules of common justice. Now I would have
gentlemen that say we are not tied by the rules
uf Westminster -hall a little to consider the
matter. Are the riiles of Westminster- hall no
either than what are necessary for the executing
of justice ? I f they are no other, how can we be
said to go according to justice, when we go be-
side those rules? I desire them to consider of
the consequence 'of this proceeding; there is
no danger, I hope, of this parliament: but if we
shall say, that the rules of Westminster- hall
are not such as are necessary for the proceed-
ings in a course of iuslice, we shall shake those
barriers uf our liberty and property, I am
afraid, a little more tlian gentlemen 'think of
at present : and shall we declare they are not
necessary, when our ancestors have thought
them so, and their wisdom hath dc-rired them
to us, and the wisdom of the nation in parlia-
ment hath established these rules? — I cant say
what consequence may follow upon this. This
parliament can never do any thing to endanger
the lives of the peopleof Encrland; but hereto-
fore parliaments have been damned with* seve-
ral brands, set upon them by succeeding parlia-
ihents: as for instance, one, I think, in the
afR H. 6, 39. That parliament was wholly rc-
pealcil, as packed, and passing laws throiigti
i^ncour and malice, and having passed no
good ones. Now, suppose a parliament slionid
com6, that should not be so tender of t!ie liber-
ties of the people as this ; and they should be
io bold as to snake those laws that are made
for the rules of justice, if they have so good a
Earliameut to guide them in it.: will not this
Ban ^duoement to such a parliament as that,
to shake all our laws and liberties ? Dol
trouble you any longer, my h^ad will i
me leave. I inn against the bill, anfl have
you my reasons.
€l)l. M'harion. I hope gentlemen, in
ter of this moment, wdl have patience
one another; and since e\'ery geoileni
give his vote in this matter, I desire to \
reasons for my vote : I am of the opi
another gentleman, that we ha^ not i
the sore yet ; yet I do not think, that tl
/or Westminster-hall are rules for ua
gentleman that sjiake last, as he alwa}
made a very florid and elegant spe»
brought you several examples of ati
that nave been condemned from one par
to another, in several reigns : but I
wonder at that, wl^n the crown wentfi
to another. An instance was given
case of the lord Cromwell, which wa
tb from the bar ; and sir Thomas Powy
great stress upon it, that this was conder
a wrong judgment, because be was not
I believe that may be a reason why n
those attainders were condemned ; pei
might be a custom uf our ancestors
bills of attainder without hearing the
This person, hatli been heard, and fully
and I believe no person, that hath been
ed, hath had so fair a trial ; and tb^reft
liaments having condemnc«l bills of ati
because the persons have not been heai
will be no reason why any parliament
condemn us. A gentleman told you, t
law of God and man was, not to condemi
but upon two witnesses ; but there an
instances to the contrary. — It is told \t
Porter, here before you, is not a good ev
because he is not sworn ; and that yoi
go by the rules of Westminster- hall. S
gentleman that spake last, yuu are tc
their rules, but not by their forms : I mi
less there is a groat diflfercnce bet wee
two ; lor a form is only the manner ai
thod by which we proceed in doing
thing ; but the rale is the foundation we
to err from ; but 1 can't agree we jare u
same rules as Westminster hall is : the i
Westminster-hall are, when a man is 1
upon his trial, the jury are all to be um
oaths ; b}' which oath they are to maK<
judgment according to law. This is
ease here : if I was a juryman, and wa
a man, and one witness swore against tb
and no other witness; though I did
conscience believe him to be guilty, yet
case my conscience is discharged, and
find him not gudtv : but no man can i
is the case here. — ■\\'hat are we now a-
flere is a bill to attaint sir Johfa Fen'
hig^li-treason : if 1 reject the bill, I do '
him not guilty ; and if I do thidk hiu g
do declare against my own judgment ;
judgment here is not bound up as a man*
rneiu upon a jury : for his judgibeiit d
up to proof, according to law ; aiid n]
ment b l^und up by my oifli Ufitf :
3
upon a BiU ofAiia
the (irogf i rouKt^o by ; atid I tliink every ni«Q
U bouoil in ^itr^licti antl ilutv to Uis oimiilry, as
he believes »it Jolm Feiiuick in be i^mhy ^ to be
for tbe eotarnitlQierit of thU bJl ; huiI tiE{ utiy
genLlemAti frilt cauvincc me, that tub is w^i a
rule 1 am to go by, 1 inu^l conriaue m ibis
opmion.
Mr. Boy/tf. The disonler that worthy qfcn*
UeioAa WAS in, makes me the uiorf* L-uuceroed
for (ear of fallmg into it mysulf. I hope, in this
deflate y genltemea will be very eautioui* of
using it as an arfrutnent, what applicatioD our
votes ^ball have without iloonif aucl with tha^e
we represent^ wheo we are to ijiie juilginfcnt, as
far as in us lies, for the hJe anU dejith of a
naftn : and therefore I must (observe, that the
eftgeroesa thatisjus^tifiable upon irn peach me uts,
may not look «o well now we are ju<l|fe* upo
a Vill of attainder. Von have gone over the
whole course of the evidefice, and I belie tre
liiat this debate will shew you pretty plainly,
^ftat is to be the fule uf this bill ; for 1 believe
^p the argumeDtji will now be useil that can be :
9M to what hatli been said of extortiog- a coo-
fenion, I take it to be quite out of the ca^^e, 1
am sorry to be engag^^eil ooe way or another r I
would not, if I cuiild help it, out of the house,
be upon a jury of life and death ; yet in that
case, 1 should know the law, or be told it by
the judg^« : But in this case^ we are both j ury -
men and judges, and know not what rules we
t to go by; but set up a court of eipjity,
ch hath no bounils but our own conseiences.
^ to sir John Feawick, I know htm noi;
I his cauiie, 1 am sure 1 am a^fainst it ; but
' far I tbink him guilty or not, 1 think is not
\ tingle point to he considered : 1 must eon-
, lliere have been several people accused of
t couspiracVf and have been named by tlie
nee at the ti-iats; and I believe tliey are
ch alike guilty, bein^ nptin lbe«ximeevi-
pce ; but as to all that bath bei^n opened he*
> you, and proved, it can amount to no itiore
llian this: There is but one evidence, whieh by
the law would ii(»t be a good evidence to con-
vict him lit iinoUjer place: and therefore I da
;ree with the ^;entleinan lb at Rjiake under the
Uery, that this is a very extraordinary case;
one witnessi is not Kutficient at law to cou-
biin^ and the taw W(»nld be very ditfui-ent
of I am tu judge according to my own
Bnion, and nut by the rules ^Tt'Siribed by the
f ; but thuu^h tbi« proceeding is not stnelly
girding to the law of the bntl^ yet if it was
Bh au extraordinary case that refpnred you
[jdispeuat' v^ith those farms ^ud come to this
r^ordinary mnnuer ol pvcH'et-ding ; I thiuk,
* my own part, it mi^;hi be supported by the
»ity of it I for it is impowihlr that it should
[olherwiv« iu practice. Thus when the go-
Dfli*fitt i« dt Hlake^ and nothing will pre^t^'rve
bat the breaking thj on^rh the settled forms,
flieathe governiaenl wilt lireak ibrough ihern :
0ik»i wh ttever rule ynu prescriJH.', it will ;dwny»
^Bu^i S4K— There is a very exiraordinury
^Be and that was ni the conspiracy of the
^lOe uf Venice, above 100 yaan ago/l lliixikj
A. D* 1696,
[COO
set 00 foot by the Spaniiirds : Thea the state,
to get the nttole mutt^^r ottt, protniseil a par>
don to as uutiiy as were coiiccf ue^l in it - and
after they hml pro mi sett it, and tfeiiteil with
them about it, they ihiuight it necessary,
t(jr the preservation of the wb«de, to break
their fuith, and they were all put to death.
This was u|k»ii point of preservalHui ol the go*
vernmeiii. — Hut sir, as to precede utn, give me
leave to .say, I do nut give that authority tu
tbem, unle^ I know all the springs and secret
histories, and trausaclions that were their guide
in making those precedents ; and us to prece*
dentil ttiiit have been quoted, when the parlia-»
meut has declaretl what nas treason, and w bat
was not treason, or have declared constructive
treason, they may he grounded upou the statute
of 25 Ed. 3. But I think there is no statute upon
which tbcy can groutid the condemnaticm of a
man u|ion one witness, — In the case of my lord
t*traliord* upon constructive trea*sfius, it wai
there said, tliat it was a fire that had tain bid
for 240 years, and that it never broke out be-
fore, but to consume him and his panterily. Jt
was answered by Pym, If that was the case^ it
was not for want oi' law to justify »iich a pro-
ceeding, but ull that time had not produced
inch an offender,— I do not doubt, but if any one
will consider the late conspiracy ; and it that <
was the question, but it was aa extraordinary
as any thiug can happen ; for it was to subject I
their country to a foreign power, which is very
extraordinary, and several persons were con-
cerned in it r But there is <ma extraordinary
part which I do not remember tins gentleman
IS accused of; and that is, the assassination.
Treason itself is a very extraordinary crime|
but ^ive me leave to say, that extraordinary
part la not alledged against this gentleman |
and this bill does not seem to be brought in fo^
that, wherein he is conceroed in comn^on with i
some others, but for the subsequent matter al-
ledged In the bill. This bill is gmunded noti
much upon tbm he is guilty, as a great maiij, ^
raoie are, qa upon several cireum^taucef wbicb i
have happened to nobody else. Give m« !
leave to uistauce in a case, now in my head (t j
beg y^iur pardon tli*ii I ramble, it itVrom tlic
awe I have U|ion me from this assembly), i
Catiline's conspiracy ; and if that w as our case,
no doubt there would be another sort of argu-
ment tor it; titere they consulted what to do'
with Cetliegus,and the other conspirators: b#
was at the head of so army, which only expect-
ed his orders to lay Home in aiihes; the ques-^ ]
tiou was, Whether thev should l>reak the For-
cian law ; and for the safety ol the senate they,
were put to death beft>re the asBemldy rose.—
Now to ot>me to this pai t of it : Though sir J.
F. is a great offentler, yet I think his ca^e is not I
so extraonltnary, as to make you priKieed upoi^ j
this hill, J do lake bis living or dying not to
Ije of that consequence as this biil of aiiainder^
I know not how he comev to be so considerable ]
when in hold ; for when he walked about towa,
{ never heard he was led red or regarded at" ^
tbst lime. — But to came to the alleipitioos ie'
691]
8 WILLIAM III. Proeee£ngi aganui Sir John Fenwick^ [fiSK
your bill, apon which they are to gproond your
judfrmeDt : The first part is a iieir conspi-
racy, that is, foi' intending^ to create a jealousy
between the kinjp: and these noble persons. As
to them, vou hare already passed a rote in
their Justification ; and I think their actions
may justify them to the world, aa much as any
vote of the house of commons ; bnt whatever
that may be, I think it was a foolish (uece of
conspiracy, as well as an iJI one, lor one when he
was m danger of being honored for one plot, to
venture ujion another: and I thing, there was
at that time two witnesses to bring him to bia
trial, and that is an alleeation in the bill. And
as to the protracting of his trials it is natural,
and so justifiable, whether innocent or no, and
what every body attempts ; and nobody can
wonder al it ; but in one case or the other it
can be no sufficient ground to attaint him.—
The next thing that is said iti, that he hath
been the occasion of the withdrawing of the
evidence. Now I must observe, that is not
aHedged in the bill, and is proved but by hear-
say : But suppose it was true, and alleilged ; if
any man concemeil in treason shall endeavour,
by friends, or otherwise, to get off an evidence,
can that amount to that which is designed to
be punished by this bill, to high-treason? It
is the part of those that are intrusted with those
matters, to be in expectation of such practices.
What are gaols for, but to keep them in cus-
tody ? And the people employed in those bu-
sinesses are to take care of it. Are we to sup-
ply a defect of what ouifht to have been done
m another place ? — So that I do say, that a
Srecedent in an extraonlinary cuse is no prece-
ent to be used in a little "^case. It may be
urged, but it is but a pretence, when you have
jxassed this bill, which is the record, the matter
will appear no otherwise than are the sw^f^es-
tions ot your bill. A man hnth as^iersed great
persons, which is a gfreat fault indeed, (for he
IS not charpred with the withdrawing of the evi-
dence) therefurc attaint him upon one evidence.
1 think by tliis bill you will open a door for a
precedent of all treasons of tliu same nature.
Sir, there have been many precedents men-
tione<l ; I will trouble you with none, bccunse
mo«t gentlemen have read the argument of Mr.
St. John's in this case. I must confess, unless
there was that necessity as is pretended, which
I do not see, I do not see how yon can justify
pa&ingthis bill of attaMider, cither by the law
Of God or man, in any nation allowed. I must
confess, I have nn manner of concern how this
question goes; what i have said is more to
satisfy my own jud^^mcnt, than work upon
other |K'i>|>lc. I am not satisfied there is that
necessity that is prt'tendf.'d ; and therefore as
my jndjj^mrni is now informed. I can't give my
vote for c-oiuiiiiitin^ of this hill.
.'Hr. Smith. Sir, I own iinsolf to be very
unfit to speak in this arcnment ; but since I
am to give my vote in a matter of this conse-
«[iience, I he|^ leavu to give my rer'smi why I
give my vote, n^ I intend to do. 1 know *the
matter liefort u«». both in tin* unti:re of the
crime and punishment, at wdl as the conse-
quence of it, requires a very ddibermte oonri-
deratron ; but, at the same time, I do take the
hazard and danger of this goTeminefit to be a
matter of great comeqnenoe toOd— Tboogh
there have been several precedenti instanoed
in relation to attainders ; and though I have
obierfeil, that most have acknowlef^, thit
they might be justified upon extnorduiary >n-
casions; yet when they h«vo atsnted thU,
they have tobl you, they were upon a wrooe
foundation, aisd so were laid aside. Now, 1
think it no great matter to say, that those it-
tainders that were made in raneoor apon ooo-
tended titles, were re\ ersed when the opponle
[Nirty got the power, no more than if any ac-
tion, be it never so justifiable, should be reven-
ed when king James comes again, which 1
hope will never be. Is it any argument, tbft
when Hen. 4, came to the crov^n, and deJMieA
king nichard, that he reversed all the aUiii-
ders in his time? There might be resMt
might sway with persons for reveraiog ptiti*
cular acta of parliament, wliich might be vciy
good, or might be not so, tliere was tach i
change of government at that time ; bat tliey
take notice, it was made a particular article
against Richard 3, as if when the power «ns
come to other hands, they would not have de-
posed him if they had not had that arj '~
Neither do I take that argument to be of aiv
weight, That attainders have been rcvened,
because the people have not lieen heard ; wim
this gentleman hath had as full a heariag is
ever any person had upon any Dill of Attainder,
or impeachment whatsoever ; and he hath bid
the advantage of counsel in this case, i^birh,lf
bus been told you, was excepted out of tk
late act of parliament, and of the most eWf
couusel too. — It is said this is a matter of oe
great consequence, because it concerns sir J.
F.'s life singly; and he is not ihouglit to be
so considerable, as by his escape to nrii^ A*
public in danger. Now it hath been alwaii
one principle 1 have laid down, that if a pW
be discovered, and not thoroughly prosecoieil,
it strengthens and grows upon you, and tea !•
one if it does not subvert the govcmnient--
Now, God be thanked, that we have P"**"}*}
the design upon the king's |>erson, and scvcm
have belli punished for it; but I think •»
are not got to the bottom of it, and that we
ought to provide ag^ainst it in a mui^ otbfr
manner. Can any one think that air W«.
Parky ns, or sir Jolm Freind, and the rest tbrt
are (Uscovcred, were the only |)eraoA8 conceii-
al in this conspiracy ? 1 take it, that theit
have been much greater men in it ; and wbM
I see such a struggle both to eet people ool a
gaol, and send people out of the way, aad^M
sirts used that can be, I must suppose, irtit
such extraordinary courses are taken, ill
there is something extraordinary itin MR
done ; and I would not have men by bribtaff v
witnesses think to secure themselves: It I
been used as an argument to lessen the I
that tliii was a little after the act of I
E;
ty. Qui any Ibingf a^^^ravaie a thine; nioref
Ir, these ?ery ar^tneuti* tarn aijain^t liicin.
We 4ikre told here, tli&t ne itiiist tiut coui^ult our
own jirifat* iuilgmeuLi in the uiatttr; and we
are told, at tbe same tinier if there were t^io
witneasea thjit we did not bt^lieve, we must
not find Uini guilty^ We are to)d uFa judgie,
that though he knew a (K;r«an to be not guilty,
ytet it wai a com ui end a hi c action in him, that
■e coodrm lied the man : But that hndi been
very well aoswered already, and I sh»U not
meddle with it iinlher ; <m!y this J ii'iH say,
ibat I never ^vi!| m any case be a juryman or
ftjudgef where the convictions ni' my uwn con*
•oieiice «hnll not govern me, hut an evidence
Climt I do not ht'lieve. And because that titory
was told you, I will tell you another, ihail
think more commendable: And that was; a
lan was tried for a rnurdt^, and lh<^re was |»o-
Tlvc evidence ngHiust him. TUe Jury wAnt
fetf and stayed a ffrt^at while- Tlu'rt; wns
«l«vefi a^init 4)110 tor iiuilin^ Uim i^»ilty ; but
at last the one almost atarved tliem, and titey
AfOOgbt tbe roan in Not Guilty. The judg*
flaol for the gentleman, and di.*«iretl to know
■lb raaaoaa tor did^ring with the rc$t: And, at
^Klt npon assurance that nothing shotdi be
^bneto him, Why* says he, would you havi;
Aie find the man j^yihy, when I was be that
kilted the oiun, and he was innocent P Then,
•ir, if you take the evidence as it is; I (hiok,
int, here ii captain Parter ; I do not find aoy
body excepts to him ; and hia i^vidt'tice hath
lHi«li approved ol hy sev^ritl jurirs, and several
per&ons execute*! upon it, and nothing m#ie-
liai bath bt^eo objected ag^in^t it* I will not
myt "1^1*^^ ^ir ^- F' hath owned a g^rpat deal ol'
thm Uimseif ; be hath given i^very bmly salia-
iacCioo how tiir he stands g'uilty in hin <i^unioii ;
Imt it it» brought so far home, thut there u«s
«ir J* F/s own ietter was to convey him abroad.
Ifare hath been atiera|kta ujion other |ier«ona ;
yofi hear what hath been done by the solicitor.
They «ay, be was not bis f!oticit<ir at that lime.
Here are very pre^uaut circumstances. One
Eian SiLid, you ovg^lit not to make use of
Dan'a et id^ce here ; and yet he ould
t of erery ibio^ to dispara^ hitn; for
ba coolil tay, there were three jiositive wit-
■anca against Uira. — Now wheti it ia so noto*
liaaa mmX |iarties there are for king* James,
and we tlnd persons plotiinc; in every paii of
Iba kingdom : when you have an open inva-
•fan before you, and when designs are laid
agahnt tbe king^a lil^ every day : if this be not
a luaa to exert an extraordinary power, i aub-^
mik «i to jQu*
Bur Hd, Temple, Sir, 1 shall not trouble
TOO with any thing that bath been offered lo-
aaj. That winch calls me up, is the danger of
llMpfeoedent you art^ about to make, and the
Mnneiita tliat have been ased to support it ;
UMi^ 1 tbink, are more dangerous than that.
IflMlt^ODleBS it is a new doctrine to me, That
tka kwa tbat ore made by the jmrliaTnent, are
•a be no rule and g^ide to this house. Sir,
Iha birtb-n|^| we bare u in our laws ; aad I
did ever think till now, that the laws were not
only made for Westminster hall, hut for all tbf
subjects of England ; and espermlly, that they
were to he a rule to tiie parliament that made
them, till they should think tit to alter them —
Here have been great mistakes between the
power ot^ parliament and ibe jurii^dictton of it:
ibe {K)wrr of parliament is to make any law^
hut the juri^iciion of |uiriiament is to govern
itself by the law ; and this, give me leave to
say it to you, hath Veea ibe opinion of all yonr
ancestors, and the method tliey erer aaed.
Shall we make a law here in a (particular cosa
against all the laws otXnglaod ? ft is* ultimum
remedium et pessimum ;* yon may mte it in a
ca«e of ubsiilutenecess^ity, out otherwise it may
he a prece<lent to overturn all, — There are
several things iu tiiakin;^ this precedent, that
overthrow al; the laws tmd liberties of Eng-
luid: tirst, you are pas»in|r judgment upon a
man u|}on one witnes?;. I have heani a strange
debate to-day, that there was but one witness
ill treason^ before the statute of Edw. 0. Yoa
know, that in ca'se of treason, there was by
the common law required two witnesses: for
if there was hut one, the party might demand
trial by battle, and thut was tbe common law
of England. — There is another thing that is ex*
traonimary : here you are going to pass a a
act without any trial at all : for to say this it
a triul before \ou, the commons, is a mistakefl
yoii never dirf assume a jmistliclion of trytn#]
nny pc-rson, nor cnn you: you may for you"
own ir.tummtion hear what can be <>4)ered, bu
it [^ not a trial, where witneiisesi are not up
their ouihs. There ts no manner of power i
jurisdiction can be pretended for you to try^'l
iu that is a t>ec4tnd thin^'*. All ibe bills of al^ji
tuindoryou bafc ha«l, liavebecn in three (
[ where the persons have been either dead^ i
flefl, or have been without the compass of thfl
law, and could iKit lie brought to answer : and*^
you bare had snme bills of atttiioder ulVef'^
trials had in Westroinslet-hall ^ but never a|
one o^' those have been called triaL«, but thejd
h Live been generally rev erseil ; and for whntlJ
They tell you, that they have been reversed by I
one party,' and another iiarty : it was in tbt'i
same king's reign, in Rich. 9's reign, they wera^
forward and backward, as the court party or (^
the country party were up[»erroost. — There ii <
another thing in this, that 1 think of a mosli
dangerous conaeqnence ; and that i», that yott ^
are for making way, for what I know, by thisl
precedent, for a rack, for so it is said; this it
to force a man to be an evidence. Why, giva
me leave to say to you, it is a new way not
known in England, that you will hang a man
unless he \^ il) confess or give evidence ; but I
think it is something more than a rack, for hero ^
is hanging, drawing and quartering in the case 5
and I do not think this proi^eediug will maka
him an evidence with any credit or repaiatian
to this bouse, nor am I of ojnaion, that he can
diaoover any thing worth such a preoedent.^^
Now give me leave 10 say one thing as to tha
juriidiclioD of parliament. It batb
60S]
8WILUAM HL
iiare lor current, Ihat the pariUment hatb a
power to dedara what Ibey will treaioo, tkougii
ao by no other law ; it is the greatest mistake
in the world: I heard a fc^^ni debate D|ion
thia, u{MHi my lord Clarendon's Case ; and it ia
plain» that ataiule relatea only to casea bronght
mm ttTertor courts to parliament; foritsajra,
Ifattt if any other case supposed treasoui which
is not in that statute specined, doth happen be-
Ibce any justices, the justices shall tarry, with-
out going to judgment of the treasiin, till the
caiiae be shewed and declared before the king
Mid his parliament, whether it ought to he
judged treason, or other fekmy ? I speak to the
jurisdiction that the parliament has by that
atatute : it is, that if the like treaaon, for at
common law there was a great many treasons,
ahootd fall out, and be bronght before interior
csourts, of which they doubted, -whether they
were treasons or no? then they should Iks
brought before ihe parliament, to judge whe-
ther Uiey were treasons or felony : Bui how
■hall they judge ? By the laws iu being. Aud
who is this judgment in ? Not in the parliament
by bill, but only in the house of lords : Much
leas is it, that you may judge that to be trea-
aon in this house, that was not so by the com-
mon law before. So that, give me leave to
Bay, therefote there is no such power resened
to the parliament, to declare any thing treason
that is not treason before.^1 must say, it is of
the last consequence, that we should make a
law in a particular case, to take away from
him all the liberty that belongs to a sul»jeot.
Home gentlemen talk of the great lavour he
hath had at this bar: 1 know not what to
think of it ; 1 am sure you allowed the kinj^^s
counsel such privileges as I never saw before,
and that was, to offer that for evidence that
every body acknowledged was not so ; and I do
not think any body would think it a grejit fa-
vour to be heanl iu this mauntr, especially tu
things not in the bill.— It is said, every man
must ifo according to his private opinion, it is
not said judg[ment neither ; the instanceei that
have been given are of a (jnite different nature :
A man is not to give his judgment against his
knowledge : I think that judge ou^ht rather
not to have tried the cause at all ; but if we sit
here to judge, \se sit to judge him acconling
to the law ot £ngland, and then we must judge
him according to legal proof. Will you ait
upon a judgment that is not only not tied to
the rules of Westminster- hall, but is not tied
to the Uws of the land : and attaint a man
without a legal trial, without legal evidence,
and upon one wimess, when the law says, you
shall have two ; and after all, say it is a reatmn-
able proceeding? 1 know not how it came
about, that the act of grace was iiassed ; it did
not rise from this house; If it hath any ill
consequence, let them answer for it that were
the cause of it. — ^They say the government is
at stake, bccauae the plot hath not been found
out to the bottom. That ia not onr fault :
Tliis man hath been Ions' enough in custody ; if
i.^ U-.1. ._r^_j ■.. ^^ government, 1 a
lie bath trifled with
Proaedinff agai$ut Sir John Fervanckf [I
sorry he hath imposed upon them ; bat if i
so, 1 think there is nothing in this cast
that omsequence, as to make you make
precedent.
Sir Wm. Siricklaud. Mr. Speaker, I «
not make use of any ill precedent: And y
the present occasion, and the neoeasity ot'
kingdom required it, I would maiie a pr
dent. 1 am glad tlie several ill precedents
avoided in this case, and 1 would lie bol
say, whether this gentlemen auffera or no
man can say that he hatb been bared to d
by counsel. — Sir, 1 shoukl be aa tende
point of blood as any man ; but I do thiol
the safety of the king and kingdom is cone
ed, it is not one private man that we i
have respect for, so as to let the public si
by it 1 do think, that upon this occi
there have so extraonlinary things ha|i|K
aa have hardly happened in former ages ;
oue who is known to be in a conspiracy
liringover a French |)ower witha Piipisb ai
tu destroy our lives and liberties, alter bi i
haa been deferred by his equivocatioas
pretences to make a great diacovery ; fihr
comes to make it out, he accuses the be
your friends ; and this is only an artitice U
time till they could get the evidence out (4
wav ; think, if you do not take notice i
and let the legislative supply that deht
may be of ill constKfuence, aud may enooa
any one to commit the worst of mischieft, '
hopes, that if they can iret the evidence a
the way, they shall go unpnniahed.
^ir Fr. Winnington. 1 shall trouliie
hut a little wliilo, ii being late ; but gentli
sa\ ing it is an extratNrdiuary case, 1 ^liall
my reasons why this hill ought uut to be i
nutted ; for every menther here now isaji
and he must take the Idood of this gcuth
upon him in judgment, either to condeni
acquit him ; and I must confess, I have
much adinire<l, to hear that doctrine presi
that every man, as he is satisfied in his ui
conscience, ought to judge this man guilty
desire to know by what autliority v^e sit I
We sit here anil have a legislative autb(
and it is by the king's command v^e come
ther ; but at this time we are jutUcially t
this man for his life ; and therefore 1 b«
conceive, that we ought to proceed * accn
* allegata et probata ;* and tor any maa
private opinion to aa^^ he is guilty, he do
act by the commisaion he sits here. 1
tell you of the Lancashire Plot, or that i
shall not be chosen hereafter, seems to b
gument to enflame, but nothing to tbeqac
— Now, sir, I will humbly omr to ywu
si<leration, and the judgment of the I
1 think we cannot judicially
man, for I think the question of
to he the aame as of bis life and
agree u|K»n all the precedents good «
that have been cited, and doubt uoc h«t i
traordinary cases, it is m the li'girfrffi i
of the parliament to look after tbafM!
" ' *s*
am
k'mgdom ; but 1 shall ofier why
upon a Bill ofAUainden
A. J>. 1696.
[fiSfti
mme to that case. — 1 humbly cxincdve in this
&mmf fur i **ill uot efie^k tn the ruJes of We«|-
MttMlfrhaMt hut n|iot» tht* ntrltt tvAsnu ut ihe
JMliff ; for if it be rex^jon in WestmiusUrhiiVl,
^ktmv Im w% ht-rp, aiitl ihal ou^tit to overcome
^kiythiti;^; But wlifrea^ ^ni1emt!Q say you
have onr witiiesii, I do uot appnrhend ym have
uue iffHid MrirnesMf ami t will g-ive you' my rea-
ioii Ibr it, for ytni must take rapl. Porter upon
(lis p«rt»te, aiirt i.H>nai<ler what he says upon his
wonif au«t then I do appeal, if you take what
be says upon his « ord, *i lielher e»er tt»ey did
koovv that a bill of atlaiodcr proceeded ftj^ainat
any man upon bare affirtimtiou P No ; in that
c^ne you ihoutd hare turneil it into aoimpe^'tcli-
ment* if the thiiijf looked prolmhle, and then
Ehad the wrtnesii iipfui o&tli * and the aU'
I method of hilU of atlaincier used to Ije
by ihe im^teachment of the person, and
Itieo tu I urn it mto a hiU of uttaisider. — Then
me what it i» that is insistetl on by the king-V
Sti»rl, and recited in the bill, that there was
ill i»f indictment found by the oath i>f two
Mssses, thiit is, Porter and Good man : Un-
iler favour^ I ihitik tbey are ni»t In be connted
t m the jHimt ; and I otfer this as a
ftn*!^ I Ihinkf it is natural justice in all
«Biirls of the worlds that if a man be accused
10 a malefactor, he hatb the liberty to cross-
^■imtne the person that aecu$t?f» bim. Now
^m fcry Weil koow^ ihnt in ca«e of hills of in-
^■ifneut, » ben they are touud by the gfratid-
^M, they never admit the prifioner to put
Hbas-questions, Itfcnuse the bill of indictment
ii but Che ac^usuiiun ; and if an accunation be
«WMigh, who can be innoceot ? Why^ then, if il
Mk so, then this uatb thai was ^iven to the
^^ti'Ujury^ is not sucb an oath upon u hich you
«ao put auch a value. — Tlieu, 8ir, ^u bithe
paper of Giiodmoo, which you would read, and
eOfisidrr the vatidily of that; Goodman beingf
now absent, the prifconer hath no oppvrtimity
19 croii- examine biiu ; and 1 beieecb the hotisfl
In e^maidet* i be ill consequence of it: Any mi
oiater of state may come and g-et an examt*
mtioo before a Justice of [»eace, or aecretary of
MBte* ami the man is conveyed away, and a
bill of tttiaioder is clapped upon his back, aod
lliia aball be read as eviil^nce a^inst him : He
b but half a witue«a, and a witness u^iou an
4WCiiiiation, ihU upon a trial. — Then come to sir
^hbii Frnwick'ii particular case ; sir J, F. in in-
^ketl, issue is joined, and be hath Dotice of his
vinl » »ii«4 «ine of the witnesses (foca away, no
mma on 14*11 upon what account be went ; I
itmj believe why, in my private opinion, but
ibM if M>i our judicial kitou led^ : Then tf that
be aOt wa% it e%er known, thai when aoy man
wi« imlkncd, and issue joined, because his
ttrittl W9M defrned, therefore a bill of aiiaioiler
m0^ be broui^ht a^imthim? LI e re u re plots
Hgiimit the i^ovemnjeot, and it may be tbrty
■my be taken u|i for it ; and as to twenty^ there
■lay be two witnc^isef, and the oiliers may
kave llie ^ood luck to hare but a single viitness
1 ibem \ will you bare acts of attainder
; ftU Ihe real f If this bid been an exlra*
3
ordinary case, wherein the gorernment had.
been particularly concerned, it mi;ifht haven |
weighed with you; fin- no man can shew me
any precedent uf a hdl of attainder, but wheio
there was open act of hoMtliiy> or men ol ijreat. *
relation and power were coocerneil to subvert
the government. But what i^ «ir J . F.*t >raae ?♦*!
He 18 in custody, and the plot m deieclod ; if: I
he was runaway, you miuhtsttll suppose he
was plottinii^ against the govenimeni, because^
be was fleil from justice. Gentleuicn say tbfh
^oiernmcDt in concerned ; so it is io every fe*
k»ny and iiartieidar ii'ea*on; but must there
therefore he a hill of uttaiuder to punish it ?
When there is a M of atiainder, u must be
fit>m ao immediate danger thui tlirtMitens the
government eKtablisheiL liidt such a luiiu is at-
tainted. Hut 1 do not ^ue that sir J. F. hatll
any of these circuntstances All men agree,
Thntthis is an extraordinwrv way td' proceed*
ii*g: Thin the quei^tion j*i, \Vhfiber sir J, F-'«
case he fxtraoedinaiy i' or, W liplhtr he be •
more than a f^ommoo malefactor that is in
wicked conspiracy ? I do not sec that this case
of sir J F/ats m* extraordinary, that if he be
not hanged, the government mu$»t tail. — And,
ii.tid«^ favour, a prect-deut, when it is once
made, 1 know noi uhat time may lu'odtice
from it: It may be, after the death of Sus ma*
jeaty, that came u* restore our liberties, ue njay
haf e wicked members, and m«rmben» cbo«efi
as lu Hen. 6>h*s time. It mny be the con-
dition of every subject iu England. The powec
of piHt^mrtil we must gnvero by rea5<on and
com 1 1 »un justice ; and if there be noi so urgeul i
necessity to use tbu* extra or «lin«ry re»inHlj, be-
cause it may be dangerous to poileriiy, tJiere*
fore I am iigainst this bill.
8i»* Tho. Ltttlt.fon, The worthy gentleman
took notice, that the Lfloc-iiihire PAoi, tnd
stime tvords 1 used, were used t^uiy u* ind^mi^ | ,
1 can't ao welt gue«sat his tlurugUts. but 1 have ^
lieard liim streral times bring \\\» wite and ,
children into his speech*^, to no (lurpw^e at alL
Sir Fr. Winmnfiton, I liave a wilt? and
elii'di en, and that gentleinau iiooe ; Uierelore E
think I may make use of ihatcxpr ssion.
8ir Thti. Seymour, Mr Kpeaker, I have at-
tended your debate with the b*^i aU(*nlion 1
cjm ; and 1 liuve beard a great manv ai-MlltDentl^
and some very wild out^ loo. t hope, how
frig'tilfnl ?w}ever thio|;N h'»*e Iwt'Ti opnuetU they
will not leatl your undristauilmg inii of the i
methods and rule» of justice. I will not take
U|K»n me to (ell you, tUiut is nolhuig to the ]
qtn^srion, as, that treason i^ a ^ery givai ctime^ J
or, thai the parliuini.nt hath an mdHHindeil of'i
unlimited prnier, and «tre out tied m the ruteej
of Wciilmiiisrer liall; I think that m no port ot|
the suliject metier l»efi» re jdu. — Thaiuoihing]
bounds or can hoiit the patliuineut, is what I
every hotly doe« a Imit ; hut il is the right ap-» I
pliration of that pn^rer \i Inch is now to l>e uoiiiti
hideiedof: Fur yni may judife the prisoner, [
and i»thers will |ud;:e you. Toe norld wi||J
judge you, if you do not apply that power '
aright. — For tny part, I sbill avoid as much as
8WILLIAiM
I
CM) be, Uie saving i>f any tWm^ that hath been
•aid ; and tlierelbre I hope y<m will belierp
that my <lis<j!<iurse mitfit be very short : But
Uml which doe* inov« me in llm question, b
in flbort tbii, that I iln not give oiv juri<riiient
la C!Ontlemn any man otherwise dmii Ui« la«v
directs haw, unil upon whint term* 1 miMt^Te
it. ti* llic Uw hath saul, fhat Ijeason is not
to be IreaHon, tintcss ii he proved bv two wvif.
H^ I fim nev«T loyfiic my judgrnentio that
e, when theie a^»jM»rs heil one, — And ibis I
take to k' the state of the case^ not lo enter
into inuftttr^ ol' prec^nlent of attainders ; IWr
ihme are only mi^taivces of fo many facts that
hwre been done. And io all those instances
that have been iircr^d and qvioled, when liraes
have been seitat«* and cjuiet, iimrks have bet?D
put upon them, os was hiutHl by a j^cntleman
that spake very inj^eniously ut>on this Btit»ject
at the be^iuning of this debate ^ I say, marks
have been put upon tliein for you to aVoid, hut
not to imitate, J take it, that* the law hath de-
tmrtnined that there shii!l be two witnesses to
Ihe pftiof of treason, and there is no ti^ason
that hath not two witnesses to it, — There if* but
^nt attainder that wc nieet wiiItsI in sacred
bialory and ttiat h the attainder of Naboth ;
lie was aitftinted, and we know what inducec)
that attainder ; be had nothing to object as to
the forinatity of the procecihng^^ there was set
op tfatn^t h'im : And tlioui;h Jezabel's letter
IimI oisposed tbe rulers to deal by him a» they
<lid| yet there were two witnesses that did an-
|sear against him.— I take i% that two wit-
nesses are rt^iuisite for the knouled)fe of the
truth, that you may make a right judgrnient
whether they swear right or no, I will g-ive
you but one small instance more : I mnst tell
j^ou, Susannah had Itocu but in a Ixul condi-
tion, if one witness or circuinftanlial evidence
would hnire made her fr«dty,— A (fentlenum
liere says, it b Apocrypha :* bnt that which
w^i^ha \*ii!i me is, that there mt»y be inconve-
Qiences on one side, and there are no inconve-
niences on the other. 1 know not wb:)t may
be the cousefpienre of this preicilent, nor
w here it may brinn;' you : I know the conse-
quence, if ilr J. F. be not eitecuted upon a bill
of attainder 1 for noboily wiil beh^ive there is a
neeefl.<:tty for thi«i cxiruordinnry remedy to be
appli« d frn an otf'rnce, a year anil a IihU' after h«
balh been indri'it*d and* arraiy-ncd for it, and
they mii'ht ba»e proceedeil tt> his trial ; and f
know nor Hbelh*T it i» his fmdt that they did
not ; for it was not in his power to present it :
and if you, upon every occasion, come to sup-
ply the ddeci^ of them that are remiss in the
(roreromrot, it will make them more so.— As
to the matter of prcf^edtni^ ; Why, it may f<ill
out, that by thi» precfNient an innocent man
may be punished, and then we that make thiA
precedent are guilty of his blood ; and if he
snflFer never so remotely, ii will be i^qnirpd of
iifi, if they pri>ceiHl from'thin preiedtnt. Nnw,
if sir J, r, be not executed, uidesa in a legal
way, what is the ct»iise«ink:nce ol that ? Is it
thai «ir J, F. shall ^^ unpunished f Though
Prac0B&igi mgemst Sir J^hn Femwkl\ [TOO]
tfaev are deprited of one evidenec* that woi
make it tre«9on, be may Iks pcmiahed fur a
demeanor, and iniphaoned tor his Iffit ; aad
had much ratlier be did laniriii«ih in that
tioii, and I am aore it ii^ ni > ! «tr you* It
uu in oon%'etii<iii€y QUI ariKi ^ -^y { *«**^
take it tint when those tbiit ^re «Mir
disptUe which is the way, wc are Uf tnki
whuii i*^t.— The learn- '»( '
ed, ^i i> matter, as no^
upon sir ,t . r . he trsason ; I h tli not Ukc
me to determine it ; tliey drfler about it :
when Uiey cannot dettmiine it, will f <
question deUnuine it absolutely ? — \j
wliole, there hath been j*u much mid
counsel fur the prisoner, and s'l little
tl»e cunnsel ai^tUMt liim, andsu few w. _
ur^ed against him, that I tnusl sfilJ retai&tW
opinion J had. that there is not evHli«ei
enou|;^h for you to proceed u^ion this biM ol* at-
tainder.
Mr. Boicawerir Sir, { desire to give mf
i^ea^ons for my opinion in this matter. I bsri
DO personal disigust at^inst Ur J. F. ThegrM
argument ^r sir i. F. against this biU ts, Ibt
this is an extraordinary proceetL > ' t Iimv-
foreshouhl beagntostatiextrao^ noo;
and iu the next place, tfiat it •> ^^^nui^i lb*
rules of law. The rule of tlie law ia/thaltberi
must be two 1i«in^ witnesses : ai^ to that
ler, g^eutlemen generally a^ree, tliat it is
the law of parliament to attaint |<NipJe
oi attainder ; but they say they hut e bean
I
mi&apptied ; whicli I do easily, beheve, I
some nave been attaintetf, and liave
heard; and some have lieeu in tum<
times : bat this gentleman hath had a fair m
and a debate in this bouse; tiut f woald liiia
know* thonf^i tliey confess tiilU ttf attaii
may lie, bow it ean possibly be, if the law_
at the bur say true, that it must be uponi
and ymi *^iveno oath Y To say il may '
the houMe of lords ; under favour, 1
that a hit I Ajvuinst a commoner cannot
the ImiJ^ uf lords. And if you catiitol
witnesses ii|Hin oath, yon loust have as
eviilence as the nature of the thiu^ will aflbfi
that i«, yuM must have witnesses to coo?iiot
}our oonscieiices in the things; for if all thia
threat assemblv are satisfied in their con*«ci
that ho is gniUy of ini iting an army of Fr
to come intii England, I am a»t<>^ • ^ t'
that you shonld not pass thi« h i
I think, as to this witness, Portef, tney
not endeavoured to blemish htm ; but
argument sei-ms to run more npnn Goodi
not being present. I would know, if tliere ara^
two wiiueiseii, snd I do not believe them
my conscience^ whether I can pass ihfs bill f J
But f a|»peal in this case res iput loquii
the ibinj; is so phiw. How many have
attaitilid and sutfered for the samecrimi
have nckoiiwledg^ sir John Fen wick to Itl^
been present I There were several membefa
the house sent toei&amine sir John Frein^
sir VV. Parkyoa in Newgate^ and they
sent with this ioteatioo, that the house'
)1J
upon a BUI of Atlaviikr,
tercetle with tbe king for a purdon for them,
they discovered tlie full of tlie plot (it was
it tli« death of sir W. Parfcynsand sir John
reind that waa aimed at, but the preservation
the public) ; and vrhen they vrerc examined,
ley did ackuomied^fe, that they were privy to
le calliiij; in of the French, and that air'W.
^yns was to have a troop of hone ; there
as to be 2,000 liorse : but he would not re-
feni his own life with the blood of others,
kow I do Uke it, that there is evidence against
ir J. F. sufficient, in a parliamentary way, to
ittoiot him.— The gentleman says, the con-
ic^upiice of throwing out th» bill would be
wiliintr, and that sir J. F. is a little man : I
igree he is, but ii is the consequence of bring-
m ID a French army that is to be considered.
Would you pave the way for them to come
over, ind rn^e their entrance easy ? I hope
the people of England are concerned in the
tasty as well as their wifes and children. If
\<n let hiiu go, what will be said P 1 have not
Lianl one say, that he believes he is not guilty ;
there is none but think him gnihy ; and yet
irill you let him escape? What encouragement
vili tbi« b«f to your enemies ? He hath not de-
DMil till.' matter himself: navi he hath not
hnNigbt one gentleman to vindicate him, that
heisK wan of a hehaTiour not to be believed
ta be ifuilty of such a thing, which was done in
other trials. I desire you would consider what
the French king said of his brother king James ;
Wvieoald he think to bring innopery witlia
frelatant army ? 1 am sure the bnnguig in of
iFreoch army must be for the destruction of
^ people of England, and the protestant re-
Ifioa, and will bring your people to go in
^en shoes. It is the example of this thing
79B sre to consider. It was said at the destruc-
tas of Carthage, that the commonwealth was
>tn)-8 to be minded. I think you ought always
h he mindful for the |ireservatk>n of England ;
^ I believe he is guilty, and I am therefore
k tbe bill,
bvd Dighy. 1 shall trouble you but with a
Nrd or two. 1 suppose, aj» long as we act by
^knouu rules of justice, and the laws of our
isrf, we shall not need to fear any censure in
IV oirn kingdom, or any where else ; but it is
^ very nncertaiu thing for gentlemen to be
nd^in ibecase of life and death, without
•y rule to walk by ; a great many will not
How us any rule at all : I alwa\M took our rule
t be the law of the land, and *that evoii our-
elves are bound by the laws nur ancestors
laie nude, until we think fit to repeal tlicm ;
ad I MB confirme«l in this case by one imrti-
■Isr anrument from the bill of trea£:on tiiat
used lent sessions, in which there is a clansi*,
hat it should not extend to future parliaments.
1m only argument for exercising of this power,
k Ike extnuwdinary case of this gentleman.
Vhto a gentleman raeaksof the power of par-
■•■eat, 1 take it to be the just power of par-
Msent : I think a man may say, a parliament
itiBot do what they cannot justly do. fiut all
ntleiDcii nlkiw, that this |iower ought not to
A. I>. 1696. [702
be exercisedbut in an extraordinary ca«e where-
in the government is nearly concerned. I
believe very few but think, that if it had not
been for the vindication of some particular gen-
tlemen we never had liad this matter I>efore us ;
and then 1 will leave it to gentlemen to consi-
der, if the government can be in so much danger
if sir John Fcnwick docs escape ?
Mr. Brothcrton. Mr. Speaker, I perceive
the question, Whether this bill shall be com-
mitted, arises very much upon a supposition
that seems to be granted, that there is no other
law to try this person by ; and it hath been
hinted, that before tbe statute of Edw. G, one
witness was sufKcient : Now, if I shew yon
that here is a law in being, and hath con-
tinued for several hundred years, whereby a
man ma^ lie tried, and that by one witness, 1
think it is something that hath not been spoke
to yet. — Sir, I ground my reason and opmion
upon the authority of the law, and upon the
historians of all times, who agree in the thing,
and come down to my lord Coke, which is
printed by authority ; and he is express, that
where there is but one witness (he treats of
what witnesses are necessary, and he tells you
two witnesses were required by the common law
of treason, if the person was tried by a jury ;)
but, says lie, if there be but one witness mease
of treason, he shall be tried before the constable
and uiaRshal. And in treating of the statute
of Hen. 8, which does appoint how treason be-
yond sea shall be tried ; says he, that is only
where there are only two witnesses; but if
there is but one witness, be shall be tried before
the constable and marshal ; because, says he,
the statute of Hen 8, does not take away that
trial before the constable and marshal ; and
for that. Sir, there are several precedents in
this case, of persons that have been attainted
by a court-marshal ; and if the accuser was
vanquished, he was to suffer the same judg-
ment the defendant whs if he was found guu-
ty. I am upon a gentleman's life, and never
was .so before, and desire to be never so again ;
there have been several precedents, I say, in
t}iis case, and my lord Coke is express in the
|Miint; and I desire any gentleman to shew me
any law that hath repealed this. In case of
nnn'dcr ; suppo<(c a man he wounded upon the
land and die nnnii tht» si>:i, :uiil 1 could shew
several cases wherr the common law cannot try
a man l>y jury, but he shall be tried by the cus-
tom of literchants belhrp the statute oV Edw. G.
If a man was wounded in one country, and
died in another, he -cotild not be tried. That
wliirli I aim at im to shew you, that though the
c;onnni)ii la» sIkmiM fail, }et they need not come
with a bill ill this case, if two Englishmen
beyond sea tight, ami one kill the other, it
caimot be tried by the common law ; how then
shall it be trieil ? It must be tried by thccourt-
mai-shal. It was sir John AmesUry 's case in
Hicli. Sd'« time; and Wells's case, and lord
Herbert^ case in II. 6th*s time, who, there
being but one witin^ss, was accused before the
constable and marshal. — [Mr. Urotherton was
70S] 8 WILLIAM IIL ProesetOigt ng^but Sir John Femiei, [7M
fVorcnimeot; because it b Mid, the pufinip of
U is w necessary for the su|iport of tlie goveni-
oieiit. Ami I was the more willing to oner yua
ray ressoDs, because^ as tbe nalnre of this de-
bate has been, I cannot satisfy myself where my
judgment and opiuion shall rest: for if it lie
so, that you are not tied to have as noeb
etideuce as inferior courts, and, as tliey nj,
one evidence is enough, and my jud|fmeiit is tn
be guided by papers ; then they, without idt
evioenoe, may be enough to a^isfy: snd if
you take up with less eridence than iofa-ior
courts, I cannot come to declare how little eii-
dence msv take away a man's life.--- As to tbe
urisouer, I know him not ; but I think ibis bill
IS for all that he hath to lose, and is for all tbe
best Englishman can lose upon the like occa-
sion.—Sir, I shall be very tender in giTing mj
opinion for the bill, unless it was very deirM
me that it was reasonable. Truly, I here )mi
very little of tbe whole plot, or of this naHer
tliat hadi been examined, or for which olbers
have been executed ; my life has been genenllj
in tbe country, and 1 have not had tbe curioiilj
to buy the trials ; and as this is the first penw
that hath been called before me, to gire mj
judgment on, I hope 1 may be excused for tak-
ing th'is liberty, upon such evidence as appcvf
before us, to tdl you, I cannot give my ooosnt
to this bill.
Sir W. Lowiker. Sir, you have hadawrr
long debate in thia house, and king disooane
from the bar ; and though the counsel w»
directed that they should not dispute tbe piivi-
le^^es and authority of this houso, yet, as ftri«
my judgment carries me, their whole disoouns
was against it ; and most of the gentkocs
that have spoke against the bill, it hath ben,
because it hath not been adequate to the pun
oeedings in Westminster-ball, because tfccis
hath been but one witness. Sir, if there bad
been two witnesses, this house had not bees
troubled with it : it is a case of a very am-
ordhiary nature, and so required an extraer*
dinary proceeding. — It hath been questiooed
by some gentlemen, Wlietber one wiuiew be
sufficient in this case or nof Which I ^<|P^
at, since a great many have been confided
upon his evidence, and every one of them bis
confess! » which shewa it to be a notoriofl*
tnith.— There is another inference they dis*
from the proceedings here: because a p«^
many of those presents of atuinders avt
been rcvensed, and those with notes of i^"
nominy. If they did consider the time* tbef
were made in, and the times they were r^
versed in, there nu(|rht be a great deal of cause
for it: wc fiiul that it was contrary factiois
tlidt rerersed thorn, and that makes it nC'
the w<»rsp. Ami truly. Sir, I do not know bal
where cir(?umstjnices art- &o mUorifius, but tbfj
are tantanioutit to a SfcumI wituoss, as I l»»*
heani in \Vi«stininstpr-haU, and in cases of B*
too. If a man he murdered, ami two is ■
rooni, an«l <»nt* conies out uith a blwoily bwoi%
the law «lops |ii'(^unip that man munleicd him
though there is no particular evidancolhitbt
here interrupted by tbe great noise the house
made upon the novelty of the argament, and did
not go on further with it.]
Mr. PafiCi. Sir, I attended to the debate of
this day, and have not hitherto troubled you
myself, because I did expect to be better in-
formed by this debate. I think the tnbstance
of the debate of this day hath been, not so
much to shew us by what rule we are to go, as
to shew us that we have no rule to so by but
our judgments. Sir, I never had the honour
to sit in parliament before this time, and there-
fore cannot quote precedents of what hath been
done in former paniaments ; others have taken
a great deal of nains to shew you, that it is in
tlie discretion or gentlemen, and they are only
to be satisfied in their consciences. I am not
fond to hear myself sneak, and therefore I hope
I shall be favourably neard at this time ; and I
do think 1 have the more reason to speak at
this time, from something that fell from a very
honourable gentleman at the bar : If I do mis-
repeat him, 1 hope he will excuse me, for 1 do
not do it with an ill design : But 1 think his
words were to this effect; that he dkl not
know, but if it was known in the cnnrtry, that
^ntlemen did give their judgment against pass-
ing of this bill,' it might hinder the election in
future parliamentN. Sir, since there seems to
be so great stress iiuon our determination in
this matter, I liope 1 may at this time sliew
vou my reasuus why I cannot come up to agree
in thisbill ; and I sfiall submit it to them, wbev
ther they will do me the honour to chuse me
again ? I most confess, 1 do think this is as
nice a ca^e as 1 can pretend to give my
opinion in ; and a^ it is so, I shall desire the
best assurance of the truth of this matter,
before I give my opinion for the passing of
this bill.— Sir, \ou have liad before you one
evidence : 1 wiU admit liini to be as much aS a
sin;^ie evidence can be: as to the paper of
Goodman^s czamination, I have heanl that and
other matters too, which I shall not repeat.
But 1 do remember, tliat, in the debate of
yesterday, it wus nut insisted on to be evidence :
and if not so, I shall only take the matter as
dependino^ I>efon' yoTi upon one evidence only.
— Sir, it is true, I hfclicve this house, as to its le-
gislative proceeding, is nol tiinl by the methods
of interior courts : but 1 hopi^ I shall be ex-
cused, if in the methods of prosL'tution and
conviction of offenders, after they have been
prescribed by the wisdom of the pailininent, I
hope I shall be excused, if I believe this house
cannot take away any pi rsoii's lii'r upon less
evidence tlian inferior courts could do. — And,
Sir, I shall not enier iali» any very lo. ^ viiidicH-
tion of m\self. and my /cat and \v:'lin;;H(.ss to
serve the govcriiuiirnt ; I ncvei- wua imij. loved
i') any other i^overnnteot ; and I tlilnk my ac-
ti ius'iiu\r bu( n such that nohiiil\ ran ui^tancc
in smy one thinjf that liath lot#k«^l Mherwise;
and \vhen I ha\e >aid this, I shall trouble you
no further about that: hut there hath lieon so
much stress laid uimn this bill, that whtmoever
speaks against it, seems to. s|ieak against the
705]
upon a Bill of Attainder.
A. D. 1696.
[706
niurderei] him, bat only tbii circumstance ; and
yet the man's life is concerned in that case.
So that upon the whole, it appears lo mo that
iie is guilty, and, I think, nothing can be plainer.
^-Tliere is another circumstance, that ne fled
ibr it ; and that is a presumption of a uian^s
ZuWi : for a man loses his goods, if he llies for
lelony.
Mr. Harleif. It irould be rery unreasonable
and impertinent to trouble you lowr aAer such
a debate : 1 shall avoid repetition of what hath
been siigpfestcd to you much better from other
persons than woidd ha?e been from me. J
own it is a case of great concern , and it is my
mi»fortUBe that 1 should ever sit up<»n a thing
of this nature; but I will discharge my con-
science always, and giro what arguments occur
to me, why I am against this bill. Gentlemen
have been ideascd in their arguments tu enter
upon the debate of your power and authority,
and have made that a part of their argument :
but I think, with submission, we need not dis-
pute that at all : it is admitted, that there have
been bills of attainder passed formerly, and
{^our autliority is not under dispute ; for the
egisiativc in all nations have a power lodged
ui them, for the safety of the whole. — But your
profier enquiry is, Whether this is such a case
as you ought to exercise this extraordinary
power ; omne regnum sub ^raviore r€{;no :
riiough you have this absolute authority, yet
i£ is to lie executed by the rules of reason, and
by the rules (for such there ^re) of etenial jus-
tice ; and I look upon this as one that is invio-
lable, that no man can forfeit his lite, in such
a case as this is, without two witnesses. I must
adhere to that, because I have heard nothing
in this debate that can make me qtiit that
raaxiiii : And it is such an ancient land -mark,
that 1 will never draw a curse upon me, and
my posterity, for removing of it. I beg leave
that 1 speak with this earnestness to you. — Gen-
tlemen hare been pleased to make it part of
their arguments, the great danger the govern-
ment is in if this bill ddcs not succeed. — I will
not use many words, but I think that argument
ought not to be token in the gross, but to be ex-
amined, Whether this argument, of the hazard
of the government, is of e(|ual poize for you to
break the eternal rules of justice ? 1 viou't quote
the case before ; every gentleman knows it,
(though there was two witnesses in that case lo
put an innocent person to death) where it is
urged, the Romans will come and take our state
and nation : But with how much reason that
was urged, every body knows ; and how iiir
the government is now in danger. Let us
consider. Is this gentleman out of your power f
\b the gmernment in danger of a man that is
your prisoner ^ Is he in open rebellion against
you P If this law does not pass, if you have not
your hands in his blood, is he not under the
power of the law ? Did not he tell you so him-
■clf ? Every gentleman ought to have a zeal for
the government, and I wish it was visible in
very tbinf else ; but if that be so, give us leave
iboio spedc with zeal for our liberty, and aDciwt
VOL. XIII.
constitiltion. The argument is turned two ways :
On one side you are told, that this probably
may make him confess something ; aud by
others, he is to be mode an example of punish-
ment. This is the first beginning of a bill of
this nature : but the same reason that leads you
to this, must lead you to all the rcNt : The same
reason thai is urged for this hiH to make him
confess, will lead you to bring in a bill to make
him a gooil evidenee : this every body must
allow to be the consequence of ic. — How does
this bill come before you ? It comes before you
upon a \illainims, scandalous aspersion of soma
great men ; though I know them not all, yet I
have a great value for them, and I would make
their case my own : but if they were the nearest
relations I had, I would be against this bill upon
their account ; and let any one examine the
reason of it. — Sir, I will not run into prece-
dents ; but, only because it hath been told you,
that the precedents uere made in one reign by
one faction, and then the attainders were^ re-
versed in another reign by another faction:
There is one occurs to my mind, which hath
been touched at, and is at least of infitruction to
me. There was a case in Ed. d's time ; there
was the deposition of a king, a king barbarously
murdered, and his son uiK>n the throne ; and
there was the notoriety ot the fact, for which a
great man was attainted in his son's reign, and
no diHerent title ; and four years after, a bill
was brougiit in against the earl of March : And
one of the articles against him was, that he
had procured that attainder of that noble lord,
under prt^tcnce of some letter, or paper, that
was signed by him ; which, if it was so, says
the recinl, was no evidence. — I say this be-
fore gentlemen, to shew them how thmgs have
tiiruMl, and procedents that have been mado
very unanimously ; but in bad times have been
turned to shed the bc5^ blood in England. It
grieves me to my soul to hear of i^Ir. Cornish^
whoso attainder' you have reversed, to hear
that quoted as a precedent in this house : It is
not whether two \% ituesses be the rule of West-
minster-liall, it is the rule of right reason ; and
it is a maxim in your law, make what law you
will against the law of God, it is void : And this
is the law of God, and right reason.— Yon must
provide for the government; and when you
connot do it by course of law, then armies must
do it, when the courts are shut. 1 hoi>e gen*
tlemeii will not put a hard cunstniction upon
what I have said ; I have done it to discharge
a good conscience.
Mr. Chanc. of the Etch, Sir, I am for the
commitment ot* this bill, because in my con-
science I think sir John Fenwick is guilty ; and
because I think the |iuwer of |iarliaiiients may*
interpose in this matter: Anil if they have such
a ^)ower, I think they may justly exercise it in
thiscasi\ Gentli'iuen say, they %vill notilispute
the po\« er of parlianient ; and yet in their argu-
ments they tell us, we are not to proceed
otherwise than aec«»r(ling to the forms of inferior
courts. And if ihe parliament is not to pro-
ceed without two witnesses in th« case of trva-.
8 WILLIAM in. Proceeditigs agaiust Sir John Femaidc, [70S
707]
lOD, gi?e me leave to any, there is do room left
lor a bill of nttain<ler, unless yon will take the
bosIuesB of inferior courts upon yourselves : And
I am oonfident, several gentlemen, if there were
two witnesses, would use it as an argument,
^hat have you to do with it ? Rcl'er it to the
ordinary-courts of justice ; and I am sure that
wouhl be very reasonable. But 1 do think that
parliaments have that power, nnd they have
always used it; and 1 litlievc it is for the ad-
vantage* of your constitution. The inferior
courts are to go by the letter of the law ; and
whoever cau avoid that, is to escniie punish-
ment there; but the legislntivc is not to be
dallied with : And if the otfence be of that na-
ture, that inferior courts cannot reach it, they
can go beyond all foi-ms to preserve the govern-
ment. This they have done, and upon that
principle you sit here. Was it by the forms of
common justice below, th:^t you declared the
throne to be vacant, aud king William to be
Jawful king P Is it upon the ordinary rules of
Westminster-hall, that his title does depend ?
No, it depends upon this maxim, that the par-
liament of Entrland are intrusted for the whole,
and may coiisiitute a government for the pre-
flervotion of the whole. And upon the same
right principle that 1 gave my vote to declare
bini rightful and lawfulking, by the same prin-
ciples I declare his enemies to be traitors. —
V ou are told here, it is according to the law of
God and natur<.^, that there must be two wit-
nesses in cases of treason : I do net pretend
much skill in other parts of the world, l think
it is our pHr!iruI:ir linnviness to lnv(» this way
<d' trial : I thiuk in auy <*Uu'r pr*rt of the woild,
if he had vloalt thus uilli the government, he
"Would iiiivc hail auothcr lur.'.irier of procecdipg
agaiust hiui, than to Lc (.oiulcnDr.tMl hy kin*,'-,
loni?, nud cr.inmous: I'ut that is }OUi*c.)n."*iitu-
tion, but it iloi^ not hold in olh^jr paris of toe
world. — S'Uiie ''.v-itli^iui^u lay the stress of their
tirgunuMit unou the i!l co:isctjiienro it may hare
ill anotlKi' rci^u : i would avoid ill rnnso-
fiueuccs in auothiT rei^ii as much us I could,
but our iuiuu^diatc care is tin? preserving of the
present ':nns:i»ution. — Hut if gentleuien ere
apprchei.sivr, tlr.it b\ such an e.\aiupk% it lan^
•lames slmuM ivturn, others niny he punished;
if «r may j»ii!:>v what lie would do, by what he
hath doi.e, lu* uouI<l go ainUlier uay to v.urlv ;
if he cfiU'f t(» liOndoii, he would |trnct»L'd as his
party diil at DuMiu, .'mmI attaint all the nrolos-
tants i:) oi.e couiuuhi bill ; that is the pnTLilent
he h.'ith sit, aiid he will tolluu'. And therdnrc
in order to juxACMt lh:it, and in oril.t- to punish
our t':i('m>s-, :jrid to |» •( -. .-rvc our eonstilutiun
i\\i\\ prero^ali\(^ cf pniiianK'nt in all ptiints ; and
iKfausc I ;ni coiuincod in my iMiiScivrice ho
is guilty, I »;!iall irivcMny coucurruito for roni-
liiitniitil of tliis hill.
r'i'l. (ritinf'.ir. Sir, I wmdd not prosumo to
troult!'? ;(>u at this lime of ui^hl, uas the do-
bato upon r. less snhjrci than it is; hut siuco
30U nrp g:iiugt(» i}:-unouiv*eju:!guu'nt in a casi-
of hie and death, and that tiiis honst> i> ahovo
HUJ^ taiiftf and vo Lave uu piccudLUi ior it, but
every gentleman is to find out privatA ralaio
walk by ; the nilc that I shall take to is, that I
would deal with sir John Peowick ai I would
have mankind to deal with me : if I was in nr
J<dm Fenwick's place, and- were indicted cf
high-treason, and were not alkiwed any trill,
nor the benefit of making my defence, accordiM'
to the known laws of the land ; I should tkhik
my blood unjustly spilt, let roe Be never so guilty.
— ^Tbe laws are what are set np for the Mnte
of every man ; and when once we break througli
them, whatever our end may be at that time,
and though it may in some manner seem 10
justify us, because it is to come at an ill nan;
yet pray consider, the best of men may be
come at as easily as the worst of men. Aid
what makes roe cautious is, that my bands ire
giiihiess of blood yet, and 1 will take cans bsv
1 begin to dip them in it. Aud that which will
make me cautious in any case of this nature ii,
what 1 reail in tiie story of the late time, tbit
whcu once a set of people had begun to die
their liands in the blood of m v lord HinJbn,
nothing would quiet them till they had staisid
their hands with royal blood. The laws lit
the common detencc between the king and ibe
licople ; but the king is safest when the lavi
are most strictly observed. — I shall not prettsi
to talk of your power, which hath no eibtf
bounds but your justice and discretion ; uA
what you think so, will, 1 ho])e, meet with ap-
probation abroad. And in this case 1 ibal
always be against what is calle<l a trial to-daj:
But I do not think it any: for Idothiokwtf
are an unfit couit to determine this matlfr.
\Vc sit in so many capacities, it is hard todii-
tini^uish in what capucily we are here: some
arc accused ; it is hard to be accused, and to be
a judi^e at ihe same time. 1 am sure I am H
uiuoh concerned as if 1 was accused mvftlf;
and it is for my innocence and honour tbal I
think myself hound to sfieak against this bill.
For as no rcseutnient shall make me do any
thing that is unjust, so I fear noltiiug that M
can bay : and I will never ^o alxiut to stopbii ,
cvideni'o, by cranuniug a bill uf attainder dowo
his throat. — Besides, it is an unlit thing for any
•^viitleinan w ho is obliged to be of couoael for
the king; it is haid for him to be so, aad ait
here as a judge : I think also to proceed ia
this manner, is a disrespectful thing to thekii^
hiinstlf ; fur iu this case you turn the thnnt
of increy into the veat of judgment. The kin^f
who should hare all the ways to ingratiate bioH
S(df \«ilh his subjects; you make him, bytbi*
pnK'CLiling, to pruuuuure the sentence liiiS'
self upon the life of a subject; and it is haid
to oi^'er a bill to the king in such a manner, bf
uhirh ymi oMige him either to reject it(whicl
>«as always looked upon as an hanlship)orta
pass sentence upon this geutleman, which l^r*'
haps his <:raei<Mjs ten)|HT and his mercy niha
him avifrse ti». — Sir, it is too late to give yo^
other arguments ; you have heard a ^at msi^
h( Iter than I can gi^e : but I think tbisbill isoft^
pist iu itsvit', and dangerous in its conse<|neaeiff'
aud therdbrc I hope you will not cumiut iU '
709]
lyNifi a Bill ef Attainder,
A. D. 169fi.
[710
Sir Herbert Crofts. Sir, 1 did not think to
trouble you io this dehate, but only tor the
argtunenti that have been usdd by some that
8|>ake lately, who seem to lay a g^reat load upon
meo, according aa they ^ve their vote in this
matter, because it is in relation to tlie blood of
a man. I have considerpd the point, I hope,
vith as much caution as any man within these
walls, and hope to act with as strict a consci-
ence as an^ man whatsoaver ; and shall be g^lad
to be informed from those gfentlemen, that
have laid the stress so bard upon religion, how
they can shew me, that I do not as strictly, as
to all points of religion, give my vote for pass-
inn^ of this bill, as they would excnse themselves
from it. I must agree with thos» crentlemcn,
that you are no ways bound or limited to t!ie
rules of Westminster- iial I ; and therefore what
was said upon that, I did not think worth taking;
notice of; but when wc are told, we are boimd
up by tlie laws of nature and relt^on, and the
law of (9od, in this matter, this touches me so
nearly, that I must desire those cfentlcmen to
shew' me in scripture the law they quote.—
If it be the law of nature, and the law of Go<1,
that every man that dies must be convicted by
two witnesses, as au honourable person oh-
serveil, I wonder it is- not observed by all
Chriatidu nations and (ifovemments, that they
are not all governed by this law ; if there be
any direction from the law of God, that no
inau is to die for treason without two witnesses,
but he may suffer for murder, and felony with
one witness. Now, 1 say, I rnnst desire the
geotleman that asserts it, that he would be
pleased to shew me it in scri|itnre, and I will
be entirely of his opinion ; but till I hear that
very pkiniy proved, it is not within my reading
or remembrance, and therefore I desire it may
have no wei|(ht. And now I am up, I shall
S've my reasons, why I shall ffive my vote for
is bill. — ^Tbe reason that governs me, is the
preservation of the government, and the com-
monwealth under which I live; and which I
think lam in the station wherein I stand bound
,to preserve b^ all the rules of iustice imagina-
ble. Now it your law liath hounded inferior
courta, but hath not bounded you in this mat-
ter, though you have said inferior courts shall
not determine and give juiigmeiit in such a
case ; yet, I think, you arc not bound up so
here : Dui if the matter lie pn>vcd to my satis-
faction, 1 may give my judgment according to
the evidence tliat comes Mure me, without
that restriction..~But, sir, this ought not to be
done, it is said, but u|>on extraordinary occa-
sions. You were told some time since of the
case of the duke of MoimiouUi ; but it was
^d,. that he was attainted I>ecau8e he was in
arms, and could not be come at otherwise:
^t I think this i^t a parallel case to that, if not
much stronger : for here is a nerson that hath
been accused, and fully proved to have been in
rebel iion, and in treasonable practices with
yeur cneriies, to bring an invasion upon you,
and to subvert yonr government ; and though
Jie bath not been proved to havs been in that
single act of the asrassination, yet there is such
a correspondency betweeu one and the other,
that I do look upon him as equally guilty of
both. Thrretbre this having been so fully
proved, and the person that Ftamls accuscNl
being out of the reach of the connnon course
of the law ; what remedy have you, but to fly
to your legislative power, to attaint him upon
the grounds and allegations of your bill, that
one witness is withdrawn ? And 1 am very well
satislicd, and I tliiuk we may presume it is by
his own, or Wis friends encouragemeut and pro-
curement. And I do take this to be as rea-
sonable a ground for your bill, as any thing in
the other case ; and 1 know not what is an ex-
traordinary case, if ttiis be not one : is it not
an entmonlinary .cascj for a plot to be laid ibr
tlio total subversion of this constituliou, and our
relii^'ion for ever, and wc cannot come at it to
punish it another way? But it hath beensatd,
the safety of the g<ivemment docs not depend
upon him : if we acquit him, we are to acquit
every one «like : I hope the government does
not depend upon him alooe ; but if you cleai*
him, there is the same right to elear any cri-
minal whatsoever. »Sir, since 1 am brought
up upon fifiving my jud>rment in this matter,
(though 1 come as unwillingly as any body to
it) I must go according to my conscience; and
till I can see something of the law of God, that
has been hinted at, made out, I must go accord-
ing to the law of mv -reason ; and that is, that I
must be for the bill.
Lord Norrcifs. J will not pretend to tell yon
what the authority of this itouse is, it is what
they please to make it ; but I am sure thev
will gniuud it upon good reason^ but I think
the reason chiefly given for the commitment of
this bill, leaves you a latitude to do what yoa
please, and give no reason at all ; for it is only
to say, I am convinced in my conscience thin
man is guilty ; no matter upon what proof, no
matter whether any proof or not : ^ou may be-
lieve it from his life and conversation, and tha
company he keeps, or from his interest ; and
that may be argument enough to find a maa
guilty. But till I know a reason better
gn)unded than this, I cannot be for the com-
mitment of this bill.
Sir Christ, Musgrave, I am sure at this
time of night I am unfit to speak in so great a
matter : 1 must confess I should not liave trou-
bletl you, if it had not been iu the case of
blood. — You have had a great dcliate before
vou of the power of parliaments, and that hatl»
let if^ufHcientl^ argued; and I have not learn-
ing enough togive you any precetlenls that have
not hfen already quoteil : but every body does
agree io this, that what i^ower you have of this
kind^ is not to be exercised but upon extraor*
dinary occasions. Now I would be glad to
know, what this extraonlinary occasion is ?—
Every body allows, that treason is the greatest
j crime amuu can be guilty of;' and the charge
of this gentleman is high-treasun: but there-
fore, in tUi^ ciso, roust you exercise this au-
thority? iV^y, wht.-c'in dow tl.is casediffi^r
711]
8 WILLIAM III. Proceedingt against &r John Fenwick^
Inmi any other case ofhif^b-tniisoTi,' tbat any ] penob, to condemn him that was
other |H*rs<in will be iiractiunf;;- against the that trial ? If there he no such la
sri»venimeiit? All the tlitference I can make ofit, I rule is t'ouiidcd upon justice and coi
coii9i<is in two points ; the (»ne is, that he hath | that nothing shall be brought ag
pri'vaiiriitetl %«ith the ffovernmrnt; and the | when a man %va8 not a |>arty win
viIk^I', that gentlomrn say he hath been a
iiH^aiis of pnHTastinaiing his trial, in which |
lime an cvidcnre hath made his escape. I will
allow you, thnt it is a very ureat crime for any ;
one to HS|ierse so gr«>at inen as he haih done ;
but 1 wonM be glad to know, whether there
be in^ such an ingre<lieiit, it be siifiicient to i
aiuint him upon higli-trcason upon that ac-
e«>unt.— Then as to that of a witness being
g%me, gentlemen ha?e said, they are apt to be-
lieve, ami there is great presumption that he i ll'*" •*" ^ _■ ■ ,i u*
b.lh b«en the c^o^oKhis witnesH beine i ^„" l'»«^" '"'''* ««'""•!';: '"■.
g,...o. I. that an ingredient safficlent. th..u«fi J"^ ""'""'"'^ '* " Co.».miKee ol
at present it hatli not been proved to you ? But ^
if It had been proved, I should not however
think that is treason. Then if this be the only
difference between this gentleman and any
was made, anil he had no opportui
mine him. — 1 thought it uiy duty
that when you have made this pi
any person shall Ul uccusefl of trvi
one whness, there will be the sara
proceed thus against him.
Then (being a little befcire elevei
nighl) ihi' question was put.
Whether the bill shuu'd be comr
the house dividcil : A\»-s^ 132.
Nov. 25. The house resolved ii
mitteeof the whole house, u|ion tl
and several wurdn being tiflered a>
other person that shall be practisinsf to subvert ment to the said bill, to import sii
the government, I would know, if there be but
one witness against any man, for conspiring
■gainst the king, if they may not have recourse
to this precedent, to proceed against him by a
bill of attainder? For the argument is. Who-
soever is endeavouring to subvert the goveru-
ment, provided titere be bnt one witness, you
arc oldiged, by virtue of your legislative power,
to bring a bill of attainder against him. And
what then .' Of what use is the great care and
wisdom of your ancestors, and yourselves, that
where a crune is so trreat, and the punishment
so grrat, there should l>e two witnesses? — 1 was
mightily surprized to hear gentlemen tell you,
that two witnesses is a form in your law, and a
form in inferior courts. I never could believe
that was a form ; for according to your law, no
man shall be <leclared guilty of treason, unless
lliert* he two \utnesses against him ; so that it
i;ives, in a manner, a determination to the
rrime ; that I t«ike to he the case. — \ geutle-
luan told you that he was fully satistied by the
pnH>f, that this gentleman is guilty : But how
ran a man satisfy his own conscience, to con-
demn any man by a hiw, that is subsequent to
the fwl f* Tor that is the case ; and pray see
wick*s being guilty ; at lust the
were agreetl on, we're thrse, ' Of wl
* the said sir John Fen wick is guilt
aL«o proposed to the consideraiion
Committee, wheihiT ihe lords spir
stand in the enacting p^rt? Kut u
into the several acts of attainder,
they were unconcerned in all lhu^e
tainder, in the enacting part ; and i
mittee was satisfied in that poict, ar
left to stand io the hill by general c
the bill was ordered to bt- reported t<
and afterwanls, u|>ou tlu* lepori.
agreed with the Committee in il
ainendmeni of the words, import
Fenwick's being guilty.
Mov. Q't. The saUl bill ac;aii:
Fenwick was read the third iline.
Mr. Mathii en, Mr. Speaker,
troubled you in any ot" this lonu dt
it unuilbngly uow : but I do tlii
mau's duty, in a rase of this trrrat
iVetly to own his opinion, and •;«>*
for it. Tlie grrati-st part of tbe
run upon two things; the ineomeii
thi' danger of pivecilrnts: It now will ajipenr ; of attainder, and the liavinir thciu ti
upon your jonrnnls, thai you ha\e caused to be
read n deposition of a person that was abst-nt,
taken before a justice of peaci', whrn the per-
son aocus«Ml had no op|H>rtutitty to iiitenogate
him ; and likrwiso, that yiui have lieard a wit-
ness as to what a man swore in the trial of ano-
ther man: All this will appear upon your
books. — And truly, I wonld In* «;lail to kn •«',
if another age may not be apt to think, that
you took theseto make ifmid tltr delect t»t' ano-
ther witness; and tlien I niu.-^t a)tpeal to you,
if yon have not admitted of a teMnnon\ . wbieh
ne'cording to no law is aduuited.— 'fhey s:iy
\ou are not tied to the rules of Wevtiiiinster-
liall, nor their ftnius. Is there any law iu
being, that say;), a judge may lieara witness ns
to what was* iworu upon the trial of another
that it is necessary to have them
that any person mi'^ht not think tl
out of reach, if tbty could evade tl
were maile to pnUect the people.-
t^eneral, that this bill, as every oth
have its fate upon tbe paviieuiar cii
before you ; and wboe\er gives hi:
to this bill, ouifbt t«> be coiiviucefl
F. is guilty ot bii:h treason ; an
there arc txlrat»rdindry retisons wh
does pmsecntf^ biin in so extraon
ner ; and I do tbink one of these i
eieni alone. If between the indi
arraiifnuieut, or trial, Goodman i
died, and there had been no oth<
altaintintr sir J. F. on)) the defect
dcQcc, I shouUl uut have tliougliC il
IS]
upon a Bill of Attainder.
A. D. 1696.
[714
fason, though we should hare had an oppor- *
inity of brinff informed of bis particular evi-
ence, and believed him guilty ; and if sir J.
'. does not appear guilty, I do not think any
sason of stnte, tlious^li he hath prevaricated,
ad behaved himself to the dissatisfaction of
very body ; therefore, I think, there must be
K>th these. — You have heard the evidence ; I
•hall not repeat it, but rather come to these
;hin{;s that distinj^uish sir J. F.*s case; only
tlius, ynu have received the evidence against
sir J. F. and ^\^en him liberty to make his
defence, and have fully heard him ; Hhich I
think bath altereil the reason of a g^reat many
precedents cited from my loni Coke, and other
tutiiors. — That which distinguishes this case
is, the great danger the nation was in from this
conxpiracv, and the sense the nation hath had
ot'it; and i find, by the general opinion of all
persoDs, t\iis danger is not at an end. There
leems likewise to be an opinion as general, that
nr J. F. could have contributed to your safety
bv « discovery . — ^Thc next circumstance, that
w J. F. knowing of this, and the expectation
tbe nation had from him, for that he could
btve contributed to your safety, hath made use
ofdiat to put oflT his'trial ; and at last, has made
wth a paper, as does shew an inclination to do
Tou all the prejudice he can, and tended to the
creatinsjf of new dangers ; and by this means
«r J. F. against whom there was two witnesses
when be was indictct), hatli delayed his trial,
n iliat now there is but one ; and there is a vio-
kot |)resaniption,that this person is withdrawn
by the practice of sir J. F.*8 friends.— There
fnnains vet with roc as great a consideration
•I any of* these : the public resentment of the
wtion for such his behaviour, is the only means
^is practictrhas letl you ; and it seems neces-
■■r? for your safety, to come the next lH»st waj
to what he could have done. Against the evi-
fa»ce that bath been given, there have been
pcatifoubts raised ; not so much whether it
K loch evidence as may incline ns to bt* lieve
Uffl to be guilty ; bnt whether it be such as
yw should hear in the capacity you are in ;
fiJ whether, after it is found, such as it is, that
* Dqt snch as would convict him iipon another
•rial. W bether you ought to cre<lit it, and that
*onM io6uencc yon to give your vote for this
Ul of attainder ;' this is a tloubt that 1 find
*eia;tis generally with them that differ from me
n wioion about this bill ; and therefore I de-
tin (cave to apeak to that |mrticular. — It is said,'
fbt you are trying of air J. F. that you are
Hfes, and that you are bntli judges and jury ;
■•4 that you are*obltge<l to proceed according
to the same rule, though not the methods, of
Wawninster-liall ; terundum allegata et pro-
^s.— ihit the state of the matter, as it appears
I* me, is, that you are here in your legislative
pover, making a new law for the attainting of
tir J. F. ; and for exempting his particular
«K,aBd trying of it, (if you will use that word,
**Hjh inproperiy); in which case the methods
Mer fnifu what tlie law requires in other cases ;
faUw ii aflffcr to b^a law for any other after-
wards. Methinks this being the stpte of the
case, it quite puts us out of the method of trials,
and all the laws that arc for limiting roles for
evidence at trials in Westminster-hall, and
other judicatures ; for it must be agreed, the
same rule of evidence must l>e observed in other
places as well as Westminster- hall, I mean in
impeachments, and it has always lieen so taken.
— This notion of two witnesses has so much
gained upon some gentlemen, that we have had
some gentlemen say, that this is required by the
law of nature, the universal law of nature, nay,
by the law of God. And 1 think, if it was
so, there would be no doubt but it will oblige
us.~But therefore I go to the bottom of tne
matter : that any man deserves to be punished,
is because be is criminal: that this or that man
deserves it, is because he is guilty of a crime,
let his crime be made evident any way whatso-
ever ; for whatsoever makes the truth evident,
is and is accounted in all laws to be evidence.-^
Now as to the rules for examining any person,
whether he is guilty or not, and the evidence
that is allowed in all nations, no two Dations
agree in the same evidence for the trial of cri-
minals, nor in the manner of giving the evidence
against tliem. Your trials differ from all other
nations ; not only that you are tried by a jury,
which is particular to you ; but that the wit-
nesses arc to be produced face to face before
t tie offender; and you have made laws, that
there shall be two' witnesses in cases of high
treason ; and herein you are the envy of all
other nations. — Sir, the evidence that is to b«
given against criminals, differs in the same na-
tion where the otfenccs differ : there is a dift'er-
ence lietween the evidence that will convict a
man of felony, and the evidence that is to con-
vict a man of treason ; and the evidence to
convict a man of the same crime, hath been
diirercnt in the same nation, acconiing to the
reason of the law. No doub^, by the common
law of Kngland, that evidence was sufficient,
which was sufficient to incline the jury to be-
lieve the person gnilty. This before the statute
of Edward 6, though that was made upon great
reason, and appears to he for the public good,
by the general approbation it hath received ;
but 1 do not think in your jiroceedings here, you
are liound hy it. — But, sir, it is said, shall we
that are the supreme authority (as we are part
of it) go upon less evidence to satisfy ourselves
of sir John Fenwick*s guilt, than the other
courts ? and shall we r«^ort to this extraordinary
way in this <rase ? — Truly, if it did shake the
manner of trials below, I should be very unwil-
ting to do it ; but f do take it clearly, that it
cannot : but on the contrary, 1 think there is
no stronger argunrrnt for your resorting to this
extraonlinary way, like to that of the caution
which your law hath provided for theiunocency
of all persons. For if we consider all those
laws that have been made, it in plain it must be
in the view of our ancestors, that criminals
might not escape : and the laws are made for
your ordinary trials, and for those things that
happen usually ; and your government hath
715]
8 \VILLIAM III. Proceedingt against Sir Join Fentdck^ [716
thi<» a<lTanta<;;c, that tliey can keep to that which
othcr» cauijot : for in a very wise gofernQieut
Taa %ias obscrvtHl by a person that sat in this
Hou<ie the last time this was deluiteil) the ways
of [MUiiaihiDd^ crimes of this nature are extraor-
dinary, when persons are condeinned : they are
not only unheard, but they are coitiienined be-
fore they arc accusetl ; and that ia thoui^ht ne-
cessary there, which will not be endured here:
and yet that government hatli continued so
loDf;;', and no einleavours have been to alter it,
though so many noble families have suffered by
it, because they are convinced, as to their con-
stitution, it is necessary. — The next argument
is fmm the precedent we are aliout to make ;
und whatever the other precedents have been,
ivhat you do now will bi' a precedent for you
and your posterity ; and whilst that is used in
make you cautious, and tends to make you con-
Sir Godfrey Cople^f. Sir, I am vcrj sniaiUe
a grreat deal hath been said upon tliis sulgect \
but I think there is somethiu^ in duty incum-
bent upon every man, especially upoa me, who
cannot concur with the gfeocral sense of the
House, to give my reasons for ray disagreeoieot;
and I will make no uscofariirunrieots but such at
1 cannot aoswerinyself. A great deal bath been
said upon this debate by gentlemen learned in
the law : and many of Uiesc, though they haie
said they would not speak as to the power uf
parliaments, yet the greatest part of their ar«ni«
ments have touched upon yonrmethoil of pro-
ceedings, and to shew you how they interfierv
with the rules of Westminster- hall ; sogrcatis
the foi*ce of custom and e<hicatiou : but I ac-
knowl'jdge some have brnii^lu us argumeuti
quite of another strain. — ^Tiiis is a matter of jo
extraordinary importance, that 1 think it proper
iiider well, whether it isacconlingto the duty to j to consider what rules we have tor go by ; but J
your country to pass this vote (which no doubt i take the punishment of oH'euders and criniiiiaK
IS the only question before you), it i-f a good ar- j to be the necessar}' support of all guveromniti
gument. — ISir, if this precedent shuU appear to | what';Gever, without which no government cat
continue; but all societies of men have sup-
posterity to lie a pri'ceilent concerning un inno- i
cent man, or a person whose gr.ilt was doubted !
uf, or one whose guilt did not appear, and this
bill shoidd be carried by a prevailing party, I
tlo :ut:rec it was a very ill preceilcnt : but if the
cuso Im', that this precedent will appear to pos-
t'Tily, upon the truth of the tliinff, to be a j»ro-
ced'.-iit made id'ii man notoriously guilty; of a
man that had drserved this evtraordinary w:.v
uf proivediiig, this extraordinary resentment ui'
the nation; and that noihing could have hin-
dered this man tVom the ccMumon Justice of (he
iialiiiii, liiii Ills havin'r « mlt a^oiirt-il to « In<\^ it
ui lliiN ikkaidi- ; aiiil li ii ap|i(>ar> that yon wcnld
not hi- put iifi'Mi. Imi ikKidc ail r\aiiip!e id this |
in.iii, I shall I. Ill lir s(in'\ it stioiiid appear In i
posterity ; Inil 1 hrliru- poNii'rit\ wiii (as I think j
liir\ itiiL;Ui) lliaiik MtiitiMii. - Sir. I dos:)y iiM- ,
ni\ own p:ii (irnl.ir, \\ liiU- 1 a;ii liinorriit. 1 should
nnl iImiiIv iii\ lilr iinlaiiijt no Im- iud;;td l»\ 'H"»
I .ii'^lisli t^i'iillrincii.aiKlllh' pt<'r.ii;;rot I'.niilaiid,
With (lie iii\al asvc.it ; and wlini 1 nthct. I
iMiiiioi Im'oI iipmioii, tli.it tii( uoveriiiiHiit (MuM
hair prii«-iir«'l a p.iriiainciit to have parsed a
hill ol atta'p'.T a^iMiisi iu\ lord iJiisst'l, or Mr.
i'oniisli. or Mr. ( 'tdU (Il^i-, 1 do not tliink all tlic
poi\«'r t»l till- tfoM rniiuMit iimhl havr p't'^aihsl
with the parliainciiL to havr lione it : and line 1
sot? that a j;ro:it many Lri'iitU-iiu'ii have opposed
ivcry step ot' this hill, for I'tar of iiiakinir an ill
prfTcdriit ; yet those ;ionllrniiMi <lo luditAe in
thrir own eonscitMicrs, that he is «xiiill\ ; and I
raniiot tliiiik that any person can ho in dani|cr hy
surh a hill, when gentlemen oppost^ this hill
only iip<»n tin? prudential jiart, thouijh tlu-y still
confess hini to hei^-uilty. — All the eoneliisioii [
make toni\stlf is, that 1 do helieve, I am con-
vinced in my et)nseience (which I think is miI-
fieiiMit, when I act in the ea|>acity 1 now iU»)
that sir .1 . F. is guilty : but there are reaii<njs m)
exlraordiii.'iry to support this bill of attainder,
that I do not see how any person, that is m>
conviiieed, can refuse to give his atlirmati\u to
this bill.
Koseil to themselves some rules, whereby it may
c known, whether offenders are guilty or no.
— It is the custom of our nation, to have tvo
nositive witnesses to prove treason. Now h may
oe imagined, that 1 make use of this asaa
nrgumcnr, that we are tied up to these rules:
No, I am not of that opincim, tJiat wc are
I'onnd b;^ the rules of any society whatsoerer.
'flic pariiameot have power to alirogate all law«
thutthey have passe«l, if they think good ; aud
so certanily caimot he liul up hy any rules now
ill I't.nic. l>ut, sir, there arc the ettnial ruk?
('t' e(|nity, and ju«»iii'e, and riuht reason, and
eoiiscit.iii'e; andlheje, 1 think, are nnaheruMi,
and iH*\er to he swerved frtjui; ar-«i theretuit I
shall take the lilu rty to see how fur ai^Tetable
<iiir proc« ediiiiTs aie to these rules. — ^Sir, 1 ih
look i;pon it, that it is a rule a^T'-^'^'able to uhat
I s|>( uk of, that no man shall he aieiisi d by he
knows not whom ; and that no man shall be
aeciistd, hut thai the r\idrnce against him, and
he, shonltl he t (iidVonled, :Mul brought l;nf to
face. — I am one of those ihat believe sir.l. F.
to he guilty ; aiul there is elewr proof of ii by
one witness; and} on h.i\e addt-d to ihisan lU-
dietnu (It that is (ound : hui I lllll^t iireiis ut»n.
that 1 think that to he so lar t'lom giving any
aiMition orstreiii:lij to iho ev:dtiice, that v»hea
that is hrou«:ht i.i, 1 look u;ion the scales to be
liL;hterthantt»e> w* i.; deline : l'i>r if any record
or wrilini^ tl.a: issworntolM^hind a niairs hack,
shall he hrouuht lu re lo supply another part ut
the evidtnef*: (iiid ifnol so, wh^ i?, it hroni:lit
lure!') and it tiMt h.' lo he interpreted to make
up a part of the evi'K;::( t, I do, hy paralUI rea-
son, aigii". that the like may make up the whole
at one timeoraiioiher ; .u;:! may ho so fir mjide
use ol", that an\ piisll.^.ite kn.i\e, t'lat giiesin-
tormation Uiore a iii>aie olpiace, or «» Mcre-
tuiy of stale, ih;-; iiin^ rist« a'^ainst ;• , in.m
whatsoe'.e:- wh'':i h.'.-so'moxi-.ins iii •}• .• ;.•.•> em-
inent; or a |»LM»«»n iii;.\ ookm 'iv ,!'■..■ niSii.KKl
service in thii» ni.;p.j ;ii.d ihi* inciy ?;« set up
^] upon a Bill ofAllnindeu
inst him, and be run the haamrd of his life.
Then, sir, u to the necessity of this matter,
iiist ooni^, that tlHMe thatbrouc^ht this mat-
before us, are miich wiser tliaii 1 1 and
refore I will not examine what reason they
I to do it: but it is so little agreeable to me,
rish it had not come here. But is it to be
iposed, that yourffovemment is in hazard of
^ man that is fast m Newsi^ateP Can any man
nk, that sir John Feowick can do any thing
bis condition to hazard it ? Can you expect
It a man that hath been six months in prison,
A nobody came at him, that he may make
ch a discovery as may be worth your while ?
t suppose you had a man of invention and
letice, what a spur do vou put to it i* May
<a man of parts, when he hath no other way
nve himself, may not he frame such a plot,
may make the b^tsubjccts in Eni^^ond trem-
e?— Why then, sir, I do say, by this yuu are
a very dangerous way tosuflcr by the inven •
» of any man : and suppose he should be so
iMraat, as to know nothing ; or so great a
^bead, to be able to invent nothing, would
Ml hang him either for ignorance or insufiici-
wy : I must confess, 1 dread the consequence
r this for the nation in general, and fur our
«erjtv. It is not sir John Fen wick's life 1
rpie ibr : I do not think it worth a debate in
n house, nor the consideration of so great an
■cmbly ; bat I do say, if thismethod of pro-
icdioghe warranted by an English parliament,
fre is an end to the defence of any man liv-
if, be he never so innocent. — Sir, I remember
keani it mentioned on the other side of the
ly, by an honourable person, who never lets
X argument want its weifrht, that king James
aioted a great number ot persons in a cata-
rne, in a lump. feSir, I am not afraid of what
Mrary princes do, nor an Irish parliament ;
I I am afraid of what shall he done here: 1
I eoocemed for the honour of } our procecd-
>!, tliat it may not l»e a precedent to a future
rfaaiettt in an ill reign, which I am sstislied
0 would not do. I had some other thouj^hts,
lich I cannot recollect, Aec
Mr. Foley (the Speaker's son). Sir, the wor-
F gentleman tliat spake first upon this debate,
h me up : he said, that he thought in this
liter, every one ought to give the reasons of
1 opinion : and in givhig the reasons of my
aion, 1 do solemnly protest, I do it with the
■e sincerity as J would do, if I was upon my
tb, and of a jury. — ^I'be worthy gen tie man
4, that if there could be any danger fmui
A. D. 169&
[718
a jireeeilenr, that an innocent nimi uiiglii lose
I lifi*, he would not be for it. 1 desire that
would consiiler, whether there be almost any
itaaeesof any innocent men that have lost
eir lives, but what has proceeded from prece-
Bls ibat have begun upon guilty men. The
■egntlemaii told you, that if we did not be-
vcsir J. F. to be goilty, no other considera-
B ought to move us to be for this bill. — Now
' reason I am against this bill is, because it
■ Boc app«ar te loe, from the evidence that
lb beso gives at tbe bur, that sir J. F. is
guilty. And I do think, that which is not legal
evidence is no evidence ; and 1 do think, thai
all the lawyers that have spoke in this matter,
have allowed it to be no legal ev idence. And I
desire gentlemen will consider, if it has not been
thought reasonable, that men should be 000-*
victed upon such evi«leuce, why now it should
be said to be uecessary ? I think the saying of
mv lord StrafTurd upon his trial was this : if the
pilot was to direct a ship in a dangerous sea^
and there was no buoy to direct his course, if
he there split his ship, it was excusable ; but if
there was a buoy up, then he was accountable
for it. — Now, comparing our government to tbe
sea, there hath been many recks and sands, and
many men have lost their lives by them : but
the treason bill seems to be set as a buoy to
avoid that mischief for the future. Now it we
split upon these rocks, I shall think we are but
ill pilots.— Upon a former debate we were told,
we are not tied up to the rules of Wpstminster-
hall, and it was sufficient to justify a man \%
giving his vote for this bill, that he was satisfied
that sir J. F. was guilty : see the consequence
of that, in things that 1 have as much believed
as I do this, I have foimd myself mistaken.-^
When a jury acts according to legal evidence,
that they have no reason to mistrust : when a
jury finds according to legal evidence, they are in
no manner of blame: aud if this man be inno-
cent, when you have taken away his life, and his
estate, and ruined his family, all that you have
to say for it is, that you have acted afcording*
to the best of your own understandings, guided
by your own private opinion. — Were this the
case of sir J. t . only, and I not to give my vote,
I reckon him so despicable, and because I be-
lieve him to be a traitor, and 1 think the worse
of him for the paii he hath acted since he was
in custody, 1 should not concern myself about
it. But wh(Mi J speak against i\\\% bill, I speak
on the behalf of all those that may hereafter
suiFcr by such a precedent as this. Those pre*
cedents thai have been urged, do not come near
this point. Audtliou<;h the powerof the par-
liament is above that of other courts, yet tnere
hath been no precedent that comes up to this,
that wc should pass a bill to attaint sir J. F.
because he will not give evidence, or there is
no evidence a|Li;ainst him. If sir J. F. be to be
hanged, liocause there is but one evidence
ai;niiist him, any man in the world may ; aud
thfu 1 think every man's hie depends upon it,
whtthcr this house do like him or not. Consi-
der what a reverse of opinion this will be, to
what former parliaments have given in cases of
the like tiature. I think if this bill does pass,
every mauS lifo will be as precarious as his
election. — We have lieen told, how much dan»
ger the govcnmient \iill be in, if this bill does
not pass. I have as much zeal for this govern-
ment as any man ; but all tho government is
coiH-rrntMl, is, that a man that you think 4
traitor should live. And 1 do ihink the govern-
ment is no Hiort> Cf»ii(Terni*d in this life, than iH '
the living of any Jacobite in England. But on
the othei: huud, I thiuk the lives and liberties of
719J
« WILLIAM IIL Proceedings agahist Sir John Fentoidt, [71
tilt! siil»jecU of En^^Iand arc concerned ; and, by
tills bill, you will make all their lives and IIIkt-
tics |)rccanoiis. — 1 am not tor briugingf the hlocMl
of sir J. 1*. ui>OD me, or my posterity ; nor can
1 consent for to make a precedent, that a man
may be lianpfcd without eTidence.
fiord Cutts, The ivortliy member that spake
last but one, told you, that he thou^rht the liie
of sir J . F. was nut worth the consideration of
this assembly : 1 do difler from him in that. If
the Scripture tells us, that the mOi!t insignificant
creature docs not fall without God Almighty's
consideration, 1 think the life of a gentleman
may be tliou^^ht worth ours. The wurihy ;;en-
tlciuan that S|>ake last, told us, that he did be-
lieve hi his conscience sir J. F. to be guilty :
but iKtAUse he hath found himself mistaken
formerly, nhen he believed things with tlie
same appearing certainty, therefore he may be
mistaken now. i hope gfentlemen \t-illnot press
au argument upon our judgments, from prece-
dents tliat are only mistakes : 1 do agree, that
any man may be mistaken in a thing which at
thalitime he thinks himself mostcerlain of: but
till tliat mistake appears, I say, it ought not to
inake liim doubt of any thing that he does
clearly and distinct! v perceive : if othenvise,
tliere is an end of all religion and law ; and it
shakes the foundation of tlie most certain belief
a man can entertain. — As it appears to me,
some gentlemen seem to lay a greater stress on
some things than they deserve, and are not
pleased to answer some arguments : and there-
fore I dt'sirc leave to speak to two or three
points in sliurl. I shall not say any thing of
the authority of pnrlianuiits, it speaks itself;
nor of the ditiiTi'iil funsideratiuu of our ]iro-
ciH'diugs, and that (►fiiifi rior coarls ; tiiatset* nis
to be agreed : but I sliall apply myself parli-
eulariy to luentioii some lliiiiL^s upon sir .1. F.\
case, and in that t;ik<* care, as mar as 1 can,
not to tn>ul>le yui uiilianv \W\i\iX llia\esaiil
upon this snl)|i(>i. — I caniMit hut i»!)sorve, tiiat
v\vr\ *;iM)tli Mian li.ai s|i.'ak«« against tliis bill,
lM't*iiis \M\\i ill) ii)(rii«!(irliiiii. that ho hillcu's
hull t'limiual ; uliicli (UK's M>iut-\>iiat astoitisii
iiK' : I hopr ilivx uill ixplaiu thiMiisoUes a
Jittli\ Hill to till' point : as lu sir .1. F.'si'aso,
I <li(l takr iht* lilu ri\ in a rriauif!« l.aiott* ol»-
MiAt', ih.il II was iidi nplya roii? t».i;.c\ a:,ainst
rill- Kiul'iil kili:r **f l''ilu^l.>:)il. .sihl !i.; 1 siu'l. niii^
in it. Iml also ui lM-iii:;:i)>^ in a i\ rauu.t ai ami tn-
nign pi»\\i I- iip«Mi \t>u. Ui;l tin r.* i* our m;;-
MtliM-atiiMi I (Ii«l im! uu'iuioii ih« i). lu-i.ni»o [
thiMi;;4lil uliat I vaul canu-i] so ^iv.it \\v i>:iii. it
hvi\U il M iu»t : I ilo .^.i> . ii-.'t »'ii1\ a^a t'ii. ivii.in,
as an l'.iij;li'«ljiiian, an. I as a "-mI-.h'S il 1..:^ -o-
Vi-riiiiinii. ;ii;a.iiNi \t l.i.'h lu' liatli (\>!.uiiii.i il a
«'riiuo olilu* lui^lu -^liLiiiMT ; l'.;i 1 ^w.l^aN...*
.1 mail (tf lioii<uii'. tiial li. li.i'.li ..«:..: vo,.trai\
ft» llu* riili s »it' hotut'.ir. I lli,.;L s I J. I',',.,..,!
Ill i.lr a iiiiu'i lu'llii i":;.i;!v. ii lu' l.a 1 a; , . and
iii.iim-. r.i riaiu'ii^, \iIuio ho iii.^lii haw
(*hai;;( .1 r.i.s pinuT ;il llio luMit oi' ii.> lu ,i;*-5.
than tt.ixlv haio coiitnveti his diath la ilus
I", iiuui Sir, I hat%oiii_\ one ihin^ tii*^!'o that
I 'i >.u* lospvak l*» i lor \«hat 1 >.iv i> iu.».c tor
my own inforniation than to desire any maa
opinion further than he agrees with it : 1 saj
most gentlemen have likewise owned, tliat
they Uiought this an extraordinary cise, the
would be lor this bill. I do say, as it appeal
to me, I do think, if ever there was au eitn
ordinary case, this is one ; and if ever any go
▼crnment was in danger, this is, or may be
upon your resolution to day. A great (kal a
stress hath been laid upoo this argument, tin
sir J. F. is in hold : I take that to be nutbiag
for they keep a combination together still. 1
is by rewards and punishments that all goven
ments are supported. Uobberics, that were v.
common in France, iat you could nut »aU
aAer it was dark, by punishments they ban
been brou(rht to that, that you may nde fnia
one end of it to another with a purse of gold ia
your hand. And if you think it a trifling nut-
ter, that wicked men that ha?e such indinatioiu
should escape, I do not doubt but you may bare
plots every day. — 1 do not doubt but this gentlr-
man knows a great deal that he bath ncter hiil
before you. 1 would not be tlmught to pr«s6 it
as an argument that he should be conderoMil,
liecause he would not confess ; but I irill be
bold tosav, if he does know of a great oaov
persons that have been concerned in this ban-
ness ; if he knows of a rising that was desiiSDnl
when this conspiracy waste be executed (aotli'
may be executed still, if things shall be riperfM
it) ; I say, though you keep him in hold, itwil
be an encouragement to them to go in the ca-
ImiIs, in buying of arms, kc. I think the mat'
tor before \ on is no less than the fate of Eog-
lanil, and the fate of Europe, and of all voiii
posiirity ; 1 am sure it is : and give mefw-T^
to say to you one thing that is matter ol' l'iii<
there* are those stories insinuated abniad, auil
those mattei-s of facts asserted, with relalioiH''
a conspiracy, and reviling this hoiuse, tlialt^
not tit lor me to reju-at. But your cnenm'
last \oar. betore tiie Ineakin^" out of tliisrwi-
spiracy, had the sanu* sort **i' iiioftin;;s, anu
tin- saiiie sort o\' discourse, as tluy liau- now.
I will cnil uiiii protesting tii you^ that I dia^
with sir J. {'. with the same candour aiHJ li***
Hour, as 1 shall always desire t»> Imi dealt wiiJ"
n)\ M W
Nil- tr.»//', / Co:>hy. That noble lord mi**
uii>!i*'stin».l what 1 saiil, as to tlic siiiail ralur I
pill iip«iii >ir J. r. ; 1 did say, that sir J. t«
iMMsi.kuil in his single capacity, 1 tliJ "^^
iluak It uas woiili the while of ifiis House W
ait in ilitir K-iri'^lative capacity upon him.
S.rC V. t. i,inufit. 1 think this bill is «
vn A unai iiionuiii. and ou;;ht well lobecflJ-
s;.:!!..! Iicioro it parses ; for when it ispissw
il xmU hi' loo lato to rtiriive the ill ct»iiK'
«jv:rL^'o w liAii II n\ attend it ; there is m tuvca
I'lUiUiV ra ilic \i«ti«l, 1 think it hard matter t*
aiT.vc .It tj"o truth. It is nut long ago tb»«
\^:.s a ] loi v.i;.iri\iHl by one Vouiig, aiidotbefii
.i:..iiaxi ilir l»i>hop of Ui.H'hestcT ; and focdi'
nwd, that it a bill of attainder bw
vc:i
!.:,.ii;;lii in against the bishop of Boeb*"
iiok'c ihc iruiU Udd been discorcrali 1^
rai]
upon a Bill of Attainder*
A. D. 1696.
[72S
lol know what might ha?e been the conse-
inence of it. I suppose nobody ({uestioDS the
nith of this nlot ; lot God forbid that every
Kidy that hatn been named for it bliould be
•:uiity. it naay be true, that there was such a
neetjng that sir J. F. is accused of bcincr at,
mi yet sir J. F. niifjrbt not lie there ; and I do
lot think it sufficiently proved, and therefore I
!annot i;ive nay conseut to this hill.
Mr. Alanicy, Sir, I have, as well as I could,
ittended to this debate in tliis matter ; au<l I
Jtd not trouble you in the last debate, because
I was willing to take all the opportunities I
could to inform myself. It is to me an extra-
•rdinary thiofp, not only ibr the* matter, but
maoner of your proceedi'ugs ; which, coiisider-
in'jr all circumstances, appears to me to be not
only not common, hut unprecedented ; and as
we are all in this matter judges, so I hope we
shall apply ourselves to consider of it with that
temper, as may lead us to give a right judg-
nent. And if I had never so great obligations
opoD me, and dependencies, though from the
crown, 1 would fay them by, at least they
iboald not influence my judgment in this
natter. We are to pass judgment in a matter
flf life and death upon this person ; and it is
urged we should do it, because the common
conrse of justice will not reach him for the
crime objected against him, which is high-
tnisaoD; and the species of that treason, as
it if laid in the indictment, is, &c.— Sir, the
evidence that hath been given to support it,
hath been the afiirmation of a singte witness at
tke bar ; indeed other things have been al •
Hged in the bill ; but, as bath been said in
Wtttminster-hall upon another occasion, they
I<Kik like pep|)er and salt to me ; for in tbeni-
idrff] they are not crimes (1 speak with sub-
iiiMion to your judgments), at least to bear
Gonpaoy with an accusation of hiirh- treason.
—U to tlie evidence ; first, capt. Porter tells
yN, That sir J. F. was at n meeting at the
King's- head, and at Mrs. Mouiitjoy's aAer-
«ards, when there were treasonable iliscourses
UDOugst them, and Charnock was directed to
go into Fr:nce ; but the end of that is not
prored ; for the witness that told you <if those
neetings, did not tell you, as 1 observed, that
Charnock did go lo France ; and what he said
<ipoo other occasions, is no evidence to me.
And lliough we are not tied up to the niics of
We4tmiui>ter-halL I am so young a member, I
know not what methods are observed in par-
Kunent, that 1 may in some measure make
khem a rule to me.-— The law of England re-
quires two witnesses upon the greatest reason ;
sad it is not only the policy of England, but
iHe isfeoeral consent (in this case) of the whole
«orb, and it is grouiuled upon the law of Gcul.
Uwas objectetl by au honourable gentleman
>be other day, to a gentleman, that he said
*he Jaw of Gwl required two witnesses. A
ftalleman who is ver^ near allied to rtno, from
*boiB be might have early informed hinisell',
nade us a challenge, to shew him where it was
to be found : if he will look into Numbers and
VOL. XIII.
Deuteronomy, there are three particular texts
very plain in it. The reason of this is illus-
trated in the story of Susannah ; her safety de-
pended upon it: and the Jews, when they pro-
secute«l our Saviour, though they wanted no
malice, nor nothing to animate them to nut
him to death, yet St. Matthew tells us, at last
there was two witnesses found against him :
and this being the law of the land, and the
law of God, must be my rule ; 1 must have.
this matter proved against sir J. F. as full as
the law of the land, and the law of God re-
quires. The other evidence brought to main-
tain this hill, is what Ls sworn by Goodman be-
fore a justice of peace, and the account of thit
evidence given by Goodman to the Grand- Jury,
which, I must confess, 1 declare 1 am very far
from beinor convinced ought to have weight
with us : hut, I think, they must lay a great
weight upon it, who give their vote for this bill ;
or otherwise they must give their vote upon tlie
testimony of one witness. — The reason tor tliis
extraordinary proceeding is, it is urged, thera
is a necessity fur it ; the plot will be lost else,
say some; sir J. F. says others, will escape
else. As for the plot, I wish to God tliere wai
no such thing ; but it is probable the best way
of ending this plot would be, if his majesty in
his wisdom tliought fit to interpose with his
mercy and ^race at this time ; and better than
for the legislative power, in an extraordinary
manner, to take off a person against whom
there is not a legal evidence. Gentlemen say,
they are convinced in their consciences ; but'l
VI ill appeal to their consciences, whether there
be legal proof against him ; and shall we then
intcriiose, in an extraordinary manner, to take
away his life !* — Mo man pietends to answer,
but that tliis proceeding may he dangerous to
posterity : if he had any security this might be
done without that danger, it might be some enr
coiiragenient to gentlemen to come into it,
hut since it may be dangerous, are not we,
who are eniruslod by the people, to have an
equal care for the liberty of the pi-ople? Wo
arc to t'lke care of his majesty's lite and go-
vernment ; and the rcascm is, because upon
him, and his govermnent, tlie public safety
docK depend, it is talus populi, is the ^at
reason that the law takes Huch care of tho
king ; and as we are to do notliing to the de-
triment of the king, so we are to do nothing for
the kinsr that may lie of detriment to the peo-
ple.-^An honourable lord hath been pleased to
say, we are not yet out of danger: I am sorry
to hear it, and could not think it, when so
noble a lord is so near the king, and hath so
great a share in taking care of the public
safety. But sure, nothing can happen from
this person ; there hath been care taken he
should have no conversation with any Imdy:
If 1 thoiu;ht there was a haxard to the goveni-
mrnt, or to the kinir, and no way to secure us,
hut taking away this gentleman's hfe ; such a
reason a<4 tliut would make me go counter to
my own reason and judgment, ijut I cannot
be of opinion, that a man of sir ,|ohi| V^XK-
8 A
7S3] 8 WILLIAAi IIL Proceedings against Sir John Fewvicl^
itick'fl size, who in his best cirouimUnces, in-
deed, is a ifentlenMn by birth, and hath a geu-
tleimin's fortune, but is nonr in a great mea-
sure withoot his estate ; so his fortune cannot
do any hart, and his alliance, I suppose, is tM>t
considerable enough to do any neituer. — Then
aff his circumstances. do not make him so con-
siderable as to do us any hurt, let us take care,
that we do not in any case, by his blood, wound
ourseWes. Gentlemen lay but little stress
vipon the dangeroosness of the precedent : I do
lay more ; and it is chiefly upon that reason I
cannot come up to be for this bill. I would
not that so fipnod a parliament should lay the
foundation of any, by which, in after-ages, the
best men in England may suffer. It is said,
an ill parliament will not want a precedent, but
will nuike use of their power ; but they will
fall sooner into, if led by a good parliament. —
Sir, this is a matter 1 woukl not ha?e presumed
to ha?e troubled you in : for I cannot think
any thing 1 can say, will have any weight with
any one that is not of my opinion : but as nn
Englishman, ns I ha?e the honour to be of this
House, when a thing of this nature comes be-
Ibre us, and I am to gi?e my opinion as a judge
in it, 1 was willing to give mj reasons for my
opinion. I think this hill is unpreceilented ;
and yoo will give me leave to say, it appears
to roe to be imronsonable ; 1 think it contrary
to the fundamental rules of reason and justice ;
1 doubt it may be dangerous to our constitu-
tion ; and I frar future age.s may have reason to
repent what we do ; and therefore I am against
this bill, and hope it will not fmss.
Sir If ';«. Strickland, Sir, I do assnrc you, I
shall not in nny thing of this bill, or any'tlti ng
dw, fun countcM* to my conscience of judg-
ment; bnt i do think, and 1 think t'vw deny
it, I do think in niv conscience that sir J. I*.
is guilty ; and thiiiungso, I uught to condemn
him. 1 do think, if we should s|)are this ^rn-
tlcmon tor uant of form, as they call it, now
we ai-e in our lf^islati>e capacity, and there
should he any ill t Ifccts of ii ; and oilici* peo-
ple, by tiiiukin^^ they might avoid punishment
by the forms t.f Wehiinhister-liQll, should have
the like imau:itiaiiun against his majesty, and
they slioiild take eft'ect ; I shoiilil think myself
in a great lutasure guilty of that misfortune.
I think tlie kingdom is concerned, and the
king's preservation, in this bill ; and I hope
you will pass it.
Mr. Doflcn. I am against passing of this
hill; and I shall, with as mucn bre\ity as 1
can, Is^^ before you my reasons why I am
agauist it; and pnibabfy I should not have
troubled the hou&c with them, but that I think
it necessary to justify my opinion in a case of
this imporUmee. 1 do admit that the fact that
is charged upon sir «f. F. is an overt-act of
high -treason, within the 25th of Edw. 3,
though 1 must take leave to say that a judf-
ment upon a case, at least as strong as this.
Las lately been very much arraigned and con-
trovcrtetf : hut it is not my intent to dispute
the nature of this fiict ; for I am persuaded,
[7fl
that to consult how to procore ffi inwioa of
this kingdom with fordgn fivreea, it an overt-
act of compawhig the death of the king ; and
I do think this cnarge does aminmt to lach in
overt- act. Bnt 1 oe^ leave to reflect, bow
far overt- acts of this nature, which fall dheet-
1 V within any species of treaaon roentroncd in
the 25th of Edw. 3, bow far such treaaom art
cognizable in pariianent, and within the hi-
tention of that statntej indeed, that Ihcy are
cognizable by the absolute power of parlia-
ment, there is no doubt Sh-, that tfie ititate
doth first enumerate several speciei or branches
of facts, which it says shall be irijadged trea-
son, that is, in the courts of judicature ; and
then afterwards it goes on, and nya, • If aaj
' other case supposed treason, not specified
* in that act, dotn happen before any jnstier,
* the justices shall tarry without any going lo
'judgement of the treason till the caose he
* shewed and declared before the king and hk
* pariiament, whether it ooffht to be yiAgtA
* treason or fckmy.' Now, Sir, wteh anbiiiB-
sinn, this is a great argument, that the intea-
tbn of those that made this law was, fbit
these treasons, which were directly undtf ay
of these particulars ennmerated by thestrftie,
that they should he leff^ and be appfopriHedH
the decision of the infterior oourta : but that
facts of another nature, which did wti earn
under the particulars eiramerated in the let, is
extraordinary offences, and misbehavianr of
magistrates and great men, and the like ; Aeic
indeed should be reserved for the considentiQa
and judgment of the parliament, who are ooly
a match for powerful oflenders, whom tu
common justice of the kingdom cannot grap-
ple with. And as this seems to he the ioten-
tinn of the makers of the aet, so I think tbe
instances generally have been pursuant to that
institution ; for I'know of hut one single in-
stance of any one that ever was attainted by
bill for any treason that is contained uader
any species enumerated in the 25th Edw. S.
It is true, where persons have been out of the
reach of the law, in open rebellion, or M
from justice ; in these cases the parliameot
have thought fit to attaint them ; as in the
case of sir John Mortimer, and others wbo
made an escajie out of the Tower ; and the
case of the regicides, and likewise the case of
the dnke of Afonmouth, who was in open re-
bellion : but I say, that I have not found in my
reading, upon the best search 1 could make,
where any that were in custody were attainted
by bill for any treason within *25 Edw. 3, and
that was the case of Ferliam ; but 1 think there
is nn precedent of any man, who is nut only ia
custody, but hath been indi<!ted, arraigned, and
issue joined, and he hath put himselfopon bis
country for his trial : and the person accused
was to be convicted, or acquitted, by the ver-
dict of twelve men ; 1 never heard of any hh
stance, when after all this proceedinsf a pcrMi
was taken off from his trial, and doarred tb^
benefit of the judgment of his peers, and At
benefit of his chaUengers, and dettroyid, Add
r25]
upon a BUlj^AUaMmr.
A.IX 1096.
prsG
wt •ff cxtnyttdicitUy by an aet nuide an par*
liaae, ts potifscto: i nercr mat with any in-
ilaace like it« nnleas it be that of my lord
toakbnl ; and I believe nobody will cite that,
if they reflect a|ioD tiie preamble of tlie act
for rerersin|y his altaiuder: tor in tlie pre-
amble it is said, that the turbulent party «lid
attempt the iirocnrinsf of that act, on purpose to
condemn bim. This sliews the opinion of our
|irrdec6SBors in rdation to proeecdiaufs of this
sort ; they astpem it contrary to tlie funila-
mental nues of justice and rigbt, which padia-
ments, as well as other courts, must be gOTern-
ed by. Roger Mortimer was attainted, and
afterwanb his attainder was reversod ; and the
reason ileclared, because he was attainted
against the good laws and customs of the king-
doa. Ferham'a, that I meutionod before; and
deckired lor the future, that it shouki be, 8cc. —
Anolhtr attainder tliore was of sir Tliorass
Hazey ; but that was leiersed, and declared to
he againat all bw. Then there are the attain-
den af H. S's time ; I shall not paiticidurize
them ; hot besides that, all the history of tliosc
times, and law-books, condemued lliem, as
praeeedings againstall law and justice. There
IS tbeauinte ^ 1 Edw. 6, c' IS, seems directly
jar eUed against those attainders in the ureced-
iag seigv ; far it says, that the prooeadings in
king H. S*alime, were grounded upon biwa that
were artreme and terrible ; and tneielbre that
tbcra migfat be no proceedings of that kind for
the teufe, it raduoes all treasons to the ancient
ttandud of QS Edw. 3, and g^oes on, and
caadsthai bo man shall be convicted or con-
demned for treason, but upon the testimony of
two lawful witnessL'S. — Now, I tske that to be
a general law, and to ezteod to all convictions
vSA oonderonatioua for treason ; and cairootbot
dechre my opinkin of it, that it mart extend to
bib of atiainder, aiuce these are Uie principal
uifBuutt powerful oonvictiotts andcondemna-
liMB ; and if that statute does extend to bills of
MHader, than pray consider, whether this bill
•f sttainder now be supported by such evidence
IS the slalnte raqnires ? There was indeed one
hvfiil witness produced : but instead of the
Mhsr, they have only produced a record be-
tesea parties not concerned in this bill, and
tJK depositions of a peraon, whether living or
4eid, nameamsiat; aiui I believe nobody will
Wf these deiMwltioos will be equivaleut to a
■ttoad witness.— i do believe a great many
fltttlameo are of opinion, that those rules of
Cfidsnee are not to guide you here : Dut 1 beg
pardon thai I cannot poaaibly be of that opinion ;
1 mhar ineline to my L. C J. Vau^^han's no-
liis, that though we are not bound bv the forms
if liw, yet we are bound by the rules of Uw :
tmj body allows we are bound as to the nature
if the Uka : every bodv will take himself bound
^ the statute of 36 lulw. 3, to form bis judg-
■eslas to the Cm;!: Why are not we then
bmnd by these acta f likewise aH to the evi-
dace, mad the proof of tlie fact : if 05 Edw. 3
Ai kinding to nn, so aa to psescrihe us a rule
•lijndg&lhelMlJiy, wbyamuoi the atotutes
of Edw. 6 binding to us as to the evidence of
that fact f^But say some gontlemeti, if there
be not two witnesses, that is from sir J. P. or
his agenU. Sir, no gentleman will say, that
ther^hath been any proof of that: the verv biH
docs not charge him with it ; But taking it for
granted, what shall follow upon that P 8hall if
theretbre follow, thatsir J. ¥. shall immediately
be put to dbath Y No, God forbid ! i tliiok there
is no parity between the crime of seducing
away a witness, and the judgment of death:
But I think this a more reasonable and naturdl
inference to be made, that beeause sir J. F.
hath sedoeed away a witness, tlierefore it is
just to make a law, tliat the depositions of that
witness dtould be of as good force and effect
ak if Goodman was here to give it viva voce ;
for then you will net take from him the benefit
of his tnal, nor the benefit of his challenges,
which is the birth-right of every Englishman. —
And one thing 1 will say further : These bills
of attainder are likeSisiphiis's stone, they have
rolled back upon those rhat have been the pro-
moter* of them. It is known, that my lord
Cromwell was the first man that promoted
tlicm in H. 8's time : and tlie lulvii.'ethRt he gave
his master tor the ruin of others, provinl fotal to
himself.— Sir, this is the last time we shall have
the opportunity of considering this matter. 1
must take leave to declare, that my opinion is,
that if 1 consent to tlic passini; of this bill against
air John Fenwick's life, u|)on any other grounds
than such as are entirely agreeable, and justi-
ftaUe bv the laws of God and man, 1 am guilty
of the death of sir John Fenwick. I am not
satisfied that I can give mv consent to this bill
upon those grounds, and therefore 1 beg leave
to be against it.
Sir Edw. Seffmour, You all know I have
borne my testimony against this bill, being not
persuaded that it fs just : Now we are come
to the finishing part of it : and I shall lay be-
fiwe you those reasons that prevail wil h me, and
submit them to the jwlgment of the hoiiw ;
and if I am more te^lious than 1 used to lie, I
ho|M; the occasion is such, thai yo\i will pardon
me : for 1 will endeavour to contract mvKclf
into as near a compass as 1 can — 1 6hafl not
trouble you with any arguments that hivve been
laid before you alreaily ; nor shall 1 outer into
the examination of prpcedciits ; a great many
have been laid beforeyou, and ntrrciit mauy of
th^m iMve been reveinied, most of them ; and
tlie reasons why they have lieen rcvented^
because the persons condeiiiiied have tint had
the due benefit of the law : And if that he a
jrood reason for reversing of siicli an attainder.
It is a good reason why you should not do it. 1
cauiiot but take notice, that tlie beginning of this
bill in the iiouseof comiuuns, is the first step of
this kind that hath been made in parliament,
exce|it that of the duke of Monmouth : and
the reason of it I take to be this, because you
h«ir not upon oath ; you condemn not upon
oath : You, nor the itany under accusation
have that advantage against a forsworn evi-
dcnoe, aa there it m the other house \ the me-
727J
8 WILLIAM IIL Proceedhgt agnnU Sir Jckn Fenwick,
[7»
Id hii
tbod bai beeo to pais such bills in the bonsii of
lords, and transmit tbem hither, upon which
jfou then judge. 1 think, in this case you have
no evidence; and instead of two witnesses, you
have no witnesses at all ; for as to Goodman,
* De nun apparentibus et non existentihiu
' eadeni est ratio.* As to Porter, he hath been
examined : But when vou consider that he was
a persiin eofraged in this conspiracy, and that
he hsd no rppentauoe of his crime till he was
discovered, and then he comes to be au evi-
dence ; how far that shall sway, every man
must allow ; that I must submit to you : But ^ ,
thus much i may nay, every man uiust allow he had done a ;fOod thing; and I may say this
admitted, that a man shall act i
conscience, and not accordiofp to the ]
are prcscrilied him, I know not who is safe ;
for how can an innocent man make hb dcftaee
upon that principle P It is a safe eonsideniioa
lor them that take U|ioo tbem that way of
judifiufr, because they are bound by no riues ;
but what hath nut tliatdone almost within me-
mory ! Felton, Uiat killed the duke of Buck-
ingham, wliatwas his justification, but he w«
iiersua<lcd in conscience be did well in so do-
m^ P llavillac, thai killed Hen. 4, in Fnuwe, he
justified the same by his <
me, that in f.ir les» cases no man that does
swear for hiinsi If, or upou his own account, is
to bc'admitttd as uii evidi^nce. 11' a robbery
be commiitsd in an hundred, tliou^h a man be
but to pay a ;;roat towards it, be shall not be
nn evidence ; how much more then in a case,
when a man comes tiisnear to take away ano-
ther's hie to save his own ? For he is not in the
condition of a freeman : who ^\\'t& his evidence
wit! tout check or conlronl, but lie i«> duidj^in'v
on for his pardon, as the counsel tuld you,
which depends uccordinc^ to the cvidimce he
docs give or not give. — Fur my part, I cannot
^ so far as some gentle lueu have done, to say
sir J. F. is guilty : For where there i« no law,
there is no transgression ; a man that is gnihy,
must be guilty acconling to tlie law : and the
law hath required and said, that there shall
be no treason but what is proved by two wit-
nesses ; and here it appears tiiat you have not
one. The sarnie law thai calls it treason, says
it shall l>e sopro%eil; Then if you pass this
hill, you make that treason whirh bct'oru was
Mi»t treason. — Sir, ihe l.!W docs require tv*o
witnesses, and the re is diviu'i aulhorit\' lor it
argument of conscience hath acted all the vil-
lainy of the last age, and I am afraid bilk
gone a great way to disturb the bappincn if
this. For if this be a rubs to this bouse, how ii
the king bound ? I thought he bad been boad
by law ; but it' this shall be admitted as an ir-
giiment, it is enough to say, if thishouse bear-
'is. I do not reflect opM tkii
bitrary, thekin«^...
reign ; but it will be enough to say, tboogfa he
act against law, and turn twenty colleges sot
of doors> his conscience persuades him is it
We see how unboundeil liberty the lonls take,
they are become masters of all our eslitei ;
and I ivouU be very loth for m v estate Is de-
pend upon the feeble tenure of a lord's een*
science. If then this be the case, as it is, se-
cording to this method, I desire to know isto
what condition we shall bring ourselves f— Yes
have been tobl, it is expected ftom vso by
your country, that yen should exert toil as-
thority and power : Sir, I would have bees gU
that in cascb mure reasonable we had exem
this niithority and power of parliament ; Iwibli
it had i^ouu tu the priveiitin;? the debasing aori
ahtisiog your coin ; 1 uish it could be exerted,
that wc might nut see oui>>elvcs cheated undcf
countenance of nn act o\' |>arliamcnt; but cos-
tiary to that, you arc fund of being sprinkled
hud I \utli the bloutl of sir John Fcnwick. As hx^
as the &>overnmeut is not in danger, I belieit
the country would he glad that their bloeJ
ini;;ht run secure in their veins, and not betapi
upun tM^ry occasiuii U) serve a turn ; for if
vi)U hreak the laws, what man can pruiuisie
Iiiin&elf security ^ We know the f»>nse(jueiioe,
it' this bill does not pass ; sir J. F. may live is
uiiktry all \m time.— But what this preceilest
too : It bath been hinted at, the ])lact? in Num-
bers, • No man is to die uj)on sia^rte evidence ;*
and it says, < Tliesc urc the staiuics you shall
* observe throughout your generations hui
' dwellings.* But I will go a little further, be-
cause a worthy (;i.iitlcman declared, there was
no such law of God. He \»iilfiD(l,iii the lyih
of Dfcutcronojuy, a case just as it is here ; tor
the case of hiy:li-ucason was idolatry at that
time ; and tin; law says, * W hosDuvcr shall set
* up idols shall be siiitieil to death ; hut it says,
* No man shall bo condcmntd to die by the , ^
* inouih of one winu'ss, but hy two or three ' may liiake, no man can foresee. This biili*
* witnesses he •hall suJlVr :' 1 think tliis is po- \ anrainst the law of God ; against the law of the
sitive enough. I shall not tmuhie you with I laud ; it docs contribute to the subversiua of
more instances, thou'^h I could rciuat seveiaj. ' ilie constitution, and to the subversion of iH
Sir, the law enjoins lorn is «liictlv, cvc n to the I ufovcrnment ; for if there be rules to be ob«
leabt circninstance : If u man be eondeinned \ served in all governments, and no goveraiscBt
to die, and after he is condemned tu die, an- I ean be without them, if you subvert those
other take away the lift- of that man, it is mur- . rules, you destroy the government ; and there^
fore, for these e(insidcraii<ms, noboily wiH
think it strange, if I <^ive my negative to thii
hill.
Mr. Chanc. ij'thv. Kichrq. Sir. thegentleaas
that spake hist, hath carried the reason agaitft
this hill a little further than s«Hne others ; ftril
seems now, we are nut to reject the biU ^
want of one witness tliat is l^gal in J^cspur
der. I will ^o furthi-r : If the uHicer that is t«
do exccuiion, if a man be cuiuU mned to be
liangeij, I'rawn and quartered ; if the nflicer
shot him, it is murder in him ; so that men
are not left tu a discretionary power to act ac-
cording to their consciences. 1 take the rea-
son bv which this hill is supported, to be de-
structive fo all human society j lor if that be
7^] upon aim of Attainder.
Mer-hiJIy but it leeiDi iiiere is no evidence at
all ; andl by ca|it. Porter'a not being pantoned,
and yet drudging tor bia pardon ; aa to all that
have been condemned upon bia teatiniony, be
iiatb arcmigned tbe evidence aa not sufficient,
aad bopes that will be the iudgment of tbe
house upon this bill. I tliink if tbe house re-
jtcitbis bill upon that argument, it will go
farther than many mean that oppose it. — An-
other thing lie says, be comparea tbe conric-
tious that I hare upon my judgment, and of
trery body else that speaks from the proofs
that are made, that be is guilty, to the whimsey
«f two or three madmen ; whereas we gu ac-
cording to the evidence brought at the bar ;
wf do not iroupon the whimsies of Uavilisc
•id Fdlon, Dot upon tbe proofs that have been
Bade here ; and though tuere are not two wit-
1, yet upon what appears in iiroof, 1 am
ctovioced, that be is gudty; and upon that
convictiua, I think, acoording to the duty I
see ny country, and the constitution of £ug-
luid, when a bill does come to punish the man
whom 1 think guilty, I think I ought to be for
Ike bill. As to what is said out of Deuterono-
my, that tbe law of God was against it, if you
Will arpie ^ fortiori, it is literally true in the
ease of murder ; but whether murder or trea-
aoo, there is the life of a man concerned ; and
it is not the punishment, whether to be hanged,
or banged, drawui and quartered, that makes
"any great difference ; and give me leave to say,
if you go to make orecedenU from the Jewish
Hv, tlm, I say, the law of England is against
thai law, in case of murder: and by tbe same
reason you may deaire leave to bring in a bill
to repeal all tiMMe laws.— Sir, if this was the
«tonal law of God and man, where was this
eternal law in England before Edward Gth's
liner If it be the eterual law, that there must
be two witnesses, why does it not hoM in Eiig-
laad even in some caaes of treason to this day ;
I mean the treason of clipping and coining?
l5o, ibal if gentlemen will argue the nature of
these faults arc what the law of every country
onlaina, and that ia the law.— And the way of
«ndsnoe and proof too differs in every coun-
trj ; and | may affirm, that there never was
any gvremment in which there was not a
Vswcr lodged somewhere to be exerted upon
«Anordinary occasious, beyond the legal way
«f |ir88ecution,^l don't care to travel lutn the
«!vcral oiHintriea to see how their constitution
ill but I believe tliere is not one phice in £o-
npe ia which it is strictly necessary there
mssM be two witnesses to take away the life
^a man ; but it is generally so as it is here in
^^t^mtfY' cases, but in this very law: this
w h* does nut go upon two witnesses, but
}n have a proviso in it does absolutely exempt
l*«eecdings in parliament: I do not infer from
wvnee, that you should not have two witnesws,
^j9Ki proceed by way of impeachnient, 1
ttiik you oaght ; and so for having witnesses
|iNoath,&c. When these proc^ings are
there is a direct proviso, by
ia exempted from those
"•hidillM
A. D. 1696- [730
rules. Upon the whole matter, I think this
man is guilty ; I think the precedent would be
more fatal, to say, that a parliament can't pro-
ceed in such a case, than that a guilty man
shouki suffer. I think this bill coiues before
you with more circumstances and reason to
justify it, than any that hath been brought
here before ; here is a bill found against him
by his country, the evidence of his friends hav-
ing tampered with one of the witnesses, con-
6rmed by a jury, &c. — A learned gentleman
says, he would come up to make this paper
evidence; but can't come up to make such a
law, by whicli every man tliat is concerned in
that Jeposition would be affected : but here is
something particular in this case, a man that
hath been abroad, and hath not used tbe like
artifice, I think you ought not to use the like
iiower to punish him, that is not guilty of the
like crime. And therefore I shall conclude ^
but I must take notice of one thing : it was
said, that this was the first precedent of this
kind begun in this House, but that of tbe duke
of' Aloumouth : but I believe, if this bill of at-
tainder is not to be begun in this House, il ia
not tu be brought in at all ; for I believe there
is a statute, tliat the life of a commoner is
never to be meddled with by the lords orisnn-
ally. I will not trouble you any further: I do
in mv conscience think that sur J. F. is guilty,
and therefore 1 am for this bill.
Mr. Jfelham. I did not think to have
troubled you this day : I did rather iotcnd to
have left it to others that can speak better, or
have not spoken upon this subject; but that
which hath been mentioned by several, as if
they did thipk that we who mentioned the law
of God upon this occasion, did it as if we did
think the law of God was binding to you at this
day : I never thought any such thmg, other-
wise than as to the morality of it, so far forth
as it is grounded upon reason and justice, and
tends to the clearing of an innocent man ; and
so far we and all mankind are bound by it ; and
that law having been afterwards confiimcdin
the New Testament by our Saviour and bis
apostles, at least approved of by them ; and
this having been confirmed by the bw of Eng-
land likewise ; 1 do not think this is a fit occa-
sion for you to pass by so fundamental a law as
that is : and I conclude with this, that I can not
satisfy myself in my conscience, and should
think some misfbitune might follow me and my
posterity, if I passed sentence upon sir J. F.'s
life, u|H)n less evidence than the law of England
requireH.
Sir H, Crofts, f shall endeavour, as much
as I can, to give you little trouble in this mat-
ter. But because it bath beeu hinted and re-
marked so particularly upon me, I must beg
leave to discharvre my duty, as well as my con-
science, as to what I said hore the other day. —
isir, I do very much forget myself, if J did
assert, that there was no such place in scrip-
ture that required two witnesses: the thing
that 1 said, was this, that if 'any gentleman
could shew me any rule from scripture that re*
7SIJ
8 WILLIAM m.
^iiiredi tw witoeMes, mora in the eaae oftrei-
•00 Um io the cue of murder and felony, I
should be fflad to lee k. I do my, that the
■criptare ■hall be a rule to me, aa far aa the
•criiptare reauiret ; but I do Uko the Jewiah
Jaw DOt to be so absolutely literally binding
upon OB here. And as to the text out of Num-
bem, that Tery text of acriptore is particularly
and literally applicable to UMirder ; and if that
be binding now, we have been rery much mia-
gnided by oiur predccesson, and I think we are
hound to take it iu baud, to repeal all laws
that are o^ainst it.— Sir, lie is pleased to deny
U8| in some measure, the liberty of being guided
by our consciences ; truly, 1 douU know what
be would liare gentlemen go by ; truly, let him
go by what rule he pleases, I wiU eo by the rule
of my conscience, and will not do any thing
•gainst it upon any consideration or conse-
eoenoe whatsoerer ; nor will I part from the li-
berty and power of parliaments, for any rule or
law of inferior courts whatsoever. — Sir, you
ara toMy you ought to be guided by the rules of
law, thai is, not ihe tonus of law, but the rules
of law. Sir, I say, if these rules were made to
bind parliaments, it was reasonable they should
>c bound by them; but if they were made
only to bind inferior courts, they were far
enough from being intended to put a cramp
Hpon the proceedings of parliament ; and if you
aoall subject yourselves to them, you give the
Uw^crs such a power, Oial I do not doubt, but
llictf books will be of greater authority than
your journals ; therefore, in coosideration of
that, and because I would leave that which is
the right of parliaments to my successors, I
jthall not subuiit to that. — ^Therefore, I say, I
come clear to the point, whether bir J. F.' be
guilty or not ; only I roust observe a little hack.
Sot as to those instances that the worthy mem-
ber was ulcased to m:ike use of, of Kav iliac
and of Feltou ; shall those extraordinary cases,
that which nteu did in heat of hluod and pri-
vate malice : shall these be brouij^ht to bear a
parallel with what is done in parliament for the
l^roc^eHiigi againtt Sir John Feuidckt [TSS
vation of die natkw, and all ow paHarity :
tbev that made this attmapC, made il «|ian yon
and y
tere, and ffave testimony againit him, if I
t believe him to be cuilty, I wonld ksc
B rather tlian vote bim ao ; but oa the
lyour posterity forever: itiaaetaoi
a matter as none ranrcwot it; k ia bqc lbs
petaoB, to much ea tfie natgne of the lad wc
are to oonsider ; and we are nol to let wen es-
cape punishment aooording V> their greatecsi
or their smallness, but according to the Baton
of the fact^d their guilt. I Ihmk I baveibil
freedom, and I am so little bound by those roki
that have been urged, that if both
were liere,
did not I
my life i
contrary, if here be sulBcieot evidence to em-
vince me, though not according to the raka «f
inferior courts, I will not snlgect the firesdsM
of parliaments to those rulea.— ^r, youhaie
been told formeriy, and I think it a matter sf
that weight, I beg leave to urge at i^pua, be-
cause it IS a great reasoe that guides me in tbii
matter; if you lay it down tor a doctrine ia
this house (for a reMdutkm here taken is m
much a rule aa a bw, for it ahall be bcuegbtai
a preoedent;) and therefore, if it shall be bid
down as a rule-here, tliat vou will never atleiol
any man, or find him guilty, but upon Ufo wil^
nessea, I think the government, and aM yeu bare^
stands upon a tottering foundatioo: be nait
be a very ordinary staieeman, that cannet bjr
his plot fo, as yon shall not reach him by Iva
witnesses.^— Therefore, I say, I think H b^
I oomes the wisdom of parliament, uottodeubR
I tliemsolves bound in tJuit respect ; I would bms
them bouud hy justice, but nut by the cumami
rule of the law.
I*^ir Ruber t Cotton. Sir, I do find tluitgca-
tleinen do very much iiisisit in this case, UmI if
a gentleman does believe that sir J. F. is guikvi
he must give his vote for the iiasaiug of this bil :
if that be so, I am glad that o|uuiou did eat
take place in the last reign ; if it had, I em of
opinion I should not have been here now, and
I believe my lord Warrington, who was rcty
instrumental in promoting: this revoh '
justice of the nation ? I do not doubt but there I would not have dieil in his bed. My lard
arc men enough, in their consciences, at least
with pretence of it, will justify the destruction
of your government and reli&^iiui, and every
thing else : all those men thai deny the right
of your government, liave conscience and jus-
tice enough to subvert it, if thev could ; and
therefore I do not so much wonder, tliai many
men without doors have argued in that nature.
—But I say, my tvinscience is the rule I must
go by ; and to uiu the question is only, whether
air J. F. he guilty or nut guilty, anil am called
to give my judgment in it ; and I think 1 am
1 were accused of a crime, wliicli, 1 believe, if
proved by two witnesses, had been treason. J
have heard some gentlemen say in tliis hove
they did believe my lord VVarringtou was |piiltj
I (though he was not guilty of the i'act u it vn
' laid). There was a man swore, &c. and tbos
; was some corroborating evidence; but esiB
I 11 r. Fley, and myself, there was none, but this
I particular person, anil thev indicted usof tfii*
! demeanor ; though it would have been trcassi,
if there had been two witnesses. Now if ibe
same fact was treason when proved by tt*
bound by the law of nature, by the law of the i witnesses, and but misdemeanor when
nation, and I see nothing in tlie law of God
that prohibiu me, to give my jud^ucnt accord-
ing to the evidence, and the o|»inion I have in
my conscience of the tnith of it. — If there be
no such rule that requires two witnesses binding
U|>on iiie : if 1 may go upon one witness ; if i
believe he s|ieaks true, and that the person is
guilty I then i am bound to act for the preser-
by one, methiuks we are doingan ex
thing ; we are going, after llie ftct <
to make that which is hut a iuisdemeBnor,iali
treason. And for these and other reaaivibi
caimot agree to the passing of tliia bilL
Lord Norrei/s, Sir, thongli I hail elvnyt •
apprehension of the ill coMMuewMeTlhliUli
yet never 60 muqb as now ; fori
J3]
upon a Bill of Attainder.
A. D. 1656.
173*
ith givcB arptiments that shake me more than
I that I hate heard htfore ; for he says, there
V a ^^reat many men, if they may proceed ac-
irding to their consciences, wiH suhrert this
ifTcmment, and brin^ in khig James and arbi-
ary power: and he tells you, that every pre-
■dent in this honse is equal to a law, and will
ifltify the like for the future. 1 am sure I am
ery unwilling to make a precedent that shall
■ti^ men in snch ill actions, in saying tbehr
■ ^ prompted them to it.
[Then a (|uestion was pat for bringing in
aodles ; which passed in the atfirmatiTey and
hey were brought in.]
Mr. Hamond. I do not think the power of
■riiaments in qfiestion in this case ; bnt then,
tf all other powen, it mast be founded upon
Mice, and oerer osed bnt upon extraordinary
wcasions, and when criminab are not to be
OKI with otherwise. The power of parliaments
B not lessened, if this bill does not pass : hot
the qui!Stion is, Whether this power shall be
ottitcd in this case ? What gentlemen say of
hong guided by conscience, hath no weight
with ma, farther than that is gOTcmed by the
hv of the land : if it be to be admitted in the
cue of life aud blood, why not In mevm et
(im f Why was he broaght to the bar then,
if, according to our private judgment, we are
^ deiemiine this matter ? No man thonght but
he vas guilty.— I beg leaTc to mention one
^ that it cometo my knowledge : After the
trid aod condemnation of Mr. Cook, I had an
*der sent me, that I might see him ; and I
vent to him by virtue of that order ; aud the
pMleit part oi^the time I spent with him, he
Oak op in declaring against the evidence of
^^•sdwan, and that he would receive tliesa-
QamcDt Qpon it, and give it in writing, as his
TiBg wonls. I saw also three positive wit-
iCMea confront him at his trial ; and when I
•eanf him say this, it weighed so much with
le^ that 1 have very great ground of suspicion,
htt Goodman was perjured in the case of
ioakd — Here hath been popular expressions of
loli, and Jacobites, that no man can apply to
his partieinar case, or say, this a case where-
I We onfj^t to use this extraordinary power :
le WIS m the hands of the law, and nobody
it say, that the government mu&t sink, if he
aes not die. I'' we go from the niles of jus-
lee, 1 briieve it willgive a great blow to the
Mr. rcraoR. Sir, I rise op only upon what
bat worthy gentleman hath offered unto you ;
sr I did not think to trouble you with any
hiBf of tbit nature. But if you will give me
eavcto aeauaiDt ywa with what I believe who
tare been later with him than tliis gentleman,
m modi cdtener. Sir, he does tell me, that he
^^^yj^^ ftom denying what hath been sworn
ifriHl air J. F. and himself, concerning the
jiwawdliliiin to bring ovar the French ; for he
Mb a Tcryparticatar remembrance of it: And
f fhit gcMieman was to speak with him now,
t« WMd satisfy him, I bdiere, in thai point
4
And since I am up, 1 think avery man that
speaks upon this occasion, should likewise give
some account of lirmsetf, in what manner, and
for what reason, he discharges his conscience
here : I hope I may use that word, since gen-
tlemen make use of conscience for his acquittal ;
and a man ought to have a very good consci-
ence for his condemnation. — As to sir J. F.'s
innocence, 1 wish he had given no occasion to
have it called in question : And since he did
fall under this accusation, I wish he, or his
counsel for him, would have taken some pains
to have made his innocency app<;ar : Bnt 1 do
not find the question is, whether sir J. F. is
guilty ? Bnt whether there be any evidence of
bis ^uilt ? And I shall tell 3*ou, ni short, my
opinion of that : I take the proof of the fact to
be, in general, such a demonstration, as the na-
ture of the thing is capable of ; and that is suf-
ficient, and capable to convince a reasonable,
honest, unprejudiced man, of the truth of what
is asserted. And there is no niauner of doubt
left, whether it is so or no ; nor appearance of
any possibility, tliat it could be otherwise. I
think there hath been that proof in this case,
and nothing attempted to disprove it, and no-
thing hath been uroved on sir J. F.'s behalf,
that any wrong hatn been done him : And there-
fore, in short, my sense is, that whereas some
gentlemen think nim guilty, but the matter not
proved, I think him guilty, bccauseit is proved,
and there hath been no offer made to dis-
prove it.
Mr. Bramlej/ Warr, Some gentlemen have
S|N)ke of the power of parliaments ; but I shall
say nothing to their power, which 1 have learn*
ed from my lord Coke, is so transcendant and
absolute, that it cannot lie confined within any
bounds: But the more jnst and honourable U
ooght to 1)0 in its proceedings, to give an ex-
ample to inferior courts. And though their
power cannot be denied, yet the exercise of it
hath been oflen censured and condemned ; and
acts that have passed in one parliament, have
been in the same reign repealed, and sometimes
severely branded, ' Id possumus, quod jure pos-
* sumus.' It is certain, here is a defect of legal
evidence : ^Ve are not ticti here to the forms
of Westminster-hall ; but certainly with sub-
mission, wc ought to tie ourselves ui> to the
rules of Wcstmiuster-hall, es^iecially wnen they
arc founded upon common justice, whieh is the
same, is not mutable, and ought to be universal.
— By the law of the land, no person ought to
be convicted in cases of treason, but upon two
witnesses ; the law of God is the same. How-
ever, if you will pass this bill, all persons must
acquiesce ; and there is no disputing of your
power afterwards. It hath l>een an argument
used to day, that the security of the govern-
ment requires the passing of this bill ; which 1
think to be a good one too, if they can make it
appear, that unless you proceed in this way,
the government is in danger : Though 1 must
observe, it was not that consideration, hut the
vindication of an honourable person*s reputar
tioD, that brodght this matter first before you.
735]
8 WILLIAM III. Proceedings against Sir John Fentciekf [
— It does not appear to me, that sir J. F.'s life
or deatb can endanger the gOTernment. You
have been told of a design that he hath been
engaged in, and is carried on at this time : That
an mvasion from France seems to threaten us :
The former design hath been happily disco? ered
and defeated ; and it is not probable that sir
J. F. should have any great share in any that
is carrying on at present : And, as fir as I can
learn, he is not so considerable a man in his
own person or interest, that we need fear hiro.
— An honourable person said, if we do not
pass this bill, they that sent us here would fiwe
us no thanks. It is not a good way of arguing;
but, I believe, if those look forward, they will
thank us. Sir, in the act for declaring the
rights and liberties of the people, you have it
aaid, that the late king James, by the assistance
of divers evil counsellors, &c. How comes it
to pass, that we never have attainted any of
them ? And if we arc for proceeding in this way
of' attainder, because it pifases them that sent
us hither, I daresay, the attainting one of those
.men would gratify those that sent us hither,
more than the attainting twenty such as sir J.
F. It was pretty well known what share some
gentlemen had m bringing in of popery and ar-
trary power ; and I will take the liberty to say,
that there is never a gentleman in this House,
but believes them to 1^ the worst of criminals.
•—Upon the whole matter, I do not think you
have any occasion to exert a power, that
nobody denies: I sec no security this will be to
the government, and consequently, no necessity
of it. 1 think yon are making a most dano:cr-
ous precedent, and that it will be of ill consc ■
quence to you; and therefore i am against
this bill.
Mr. Smith. Sir, I will be as short as I ran ;
and if it had not been fur somclliiiig in this
day's debatP, 1 should not have troubled you.
As to what was said by the gentleman that spake
last, of making examples of some that had
been criminal in the last reign^ how that came
exceptions to that evidence which the k
England allows to be good ! For it is Dd
ous, it hath been admitted in Westmini
hall : and gentlemen might as well b%ve
you, that tliose men that safTered died u
cent, as to have denied iL And I think t1
is a further strengthening of his eviilence;
there is not one man, wno hatb died upoi
evidence, but hath ackoowledgetl himteligi
Qf what he hath charged him witli. — ^As to
matter of the other evidence^ sir, I do not
that it is evidence that will come at Westc
ster-hall ; hut at the same time, give me h
to tell you, they seem to lay a little stress a
it, when thoy tell you, they bdieve it was i
evidence, and instance in what Cook said
gentleman of this House, after his condeic
tion ; but I think thus far I may say,
when you sent some of your memliers to i
niinv sir J. Friend, he did own all those |
sons to be at that place : and that is a n
better argument for the validity of Goodmi
testimony. But as to the matter before ]
some gentlemen hare made it a Quc24ion,«
ther sir J. Fenwick be so considerable a v
as you should proceed in this cxtraordioai
manner with ? Though they all say, you i
do it ; yet at tlie same time, they tell ytm i
was never put in execution, but they wen
the wrong that did it — Now, sir, the qum
is, wliether yon should make use of this po*
at this time*? Say some, the plot is over
wish it was : but when a conspiracy hath b
laid so deep and general as this was, it if
the hanging of one or two that will make
safe ; wJieu it is apparent to yuu, here is all
artifice in the world, all the*^ciuIearour8 in
world, by sir J. F.'s friends, to remove Go
man out of the %vay ; it is some argiimeiit l
lie had something to say to him : and wlien
see prisons broke open daily ; we liave knf
persons murdered in the streets for glvipg <
dcnce. Very notorious is the case of Dc
worth : you fiave plots all about you ; and
can you'think there is no occasion tu make
of this extraordinary power? — 1 would ban
xrcat a ronviction u|)on my conscience i
to happen, that no such examples were made,
I shall not now entertain you; hut [ believe
roost of the gentlemen in the House knotv ^ ,
pretty well. But 1 take the matter Mors you | could ; but it is very'hiinl u man niu!«t tb
IS, What evidence you have tu proi e bir John his conscience aside in the case : it is %ery li
Fenwick to be iruiliy i* and whether there be ; to beli<;ve, that if there l»e twf> witnesses \
not an extraordinary occasion at this lime to
exert the legislative power ? I shall not entcr
into the matter of precedents, those are out <if
my province; but I have read some: however,
it shall not pass ii|>on me for a rule, becjiuse
some bills have been reversed, no others shall
lie brought in ; it is possible, that the reversing
of them may be worse than the first bringing
of them in. — But to apply myself to the evi-
dence ; I cannot but oliserve one thiiiir, that
seems this day extraordinary : we are told l>y
some gentlemen they are against our proecLul-
ing upon this bill, because it does not quadrate
to the rules of Westminster* hall ; and at tho
same time, gentlemen take liberty to maket.'x-
ceptions here against that evidence that West-
iQinster-hall hat allowed : tbiit they shouUi take
duced, thou^ii 1 do not believe the witnesses,
I am safe if 1 condemn the mrin ; and if tl
he but one witness, I am to acquit the no
though 1 believe him to lie guilty. — .And tboi
they (c^ to scripture, to tell you there mnst
two witnesses, yet Uiey do not go so far a
tell ynn there have hijen very extraordiu
thini^s dom», even by C»o«l himself, for the |
sen iii'^ a coninuinity. — And there is the m
of it, that one witness inu}' take away aoM
lii'e in (;ne case, and not in another. TbCK*
a thini^ said, that was one thing thatocetsii
my s1ar.«li:ii^ U|) : a gentleman said, tmly
>e(Mnetl In him to he a better way to pit
(Mid to the plot to have an act of indew
liian the conviction of sir J. F* woaU h
Sir, (here seems very httle reason ftrtCti
iif}
vpon a BUI of Aitaind^.
A, 0. 1096.
[738
ioilieinDity^ when we ba^e seen an ad passed
•o laleljt'wlitci) bas not refitraineil fkersotis, nor
liftMi^ht them to a sense of their duty ; ^nrl %ve
liave heard persons own at vmir bar, that the
fact was committed ja«t after the act af in-
fSemtitty. Str« 1 do heartilya according to my
eoitsciiince, vote tbr thit bilL
Blr. Hariourt. Sir, I am seniible it is fcry
• n , .h to &ay any things and not ieetn tedious
time of tiif^ht ; but 1 lake it to be my
nuiy not to t>e silefit in this matter. All the
afj^iimeDts that 1 rememWr have \*^tn made
we of in any former debate, or in this dny's^
titay i*e rt^duccd, io abort, to these tivo headsi ;
thr ilitv.-^n of tbef^vernnient, and g^'nllemen^s
pr "io* — Sir, as to the danger of the
Ifiis I !, if any body will confince me
tUcrc iM buth danger, (I promise him, if it be
worth his while $o to do) I will he hi& proselyte,
and vote Ibr this bill: but to tfll me, the c^overn*
ment 19 in danger^ and that the fate of En^anfl
aufl £iirn|ie depends upon this bilU is certainly
nlber offered to amuse, than to coonncc. — ft
batli been askH^ Can the circumstances thai
sir J, F. is in admit of any danger to the pro-
fifrnm. nt « hicU hath power over his liberty
«i I ,nd may restrain him of his liberty
d\Ti ^ iile ? A roan, by the account 1 hafc
had of him, i>f little interest, not worth nine-
* (t have no acquaintance with him, and
mi.y easily mistake his circumstances.)
whatever his circumstances are, he is
fe custody, and no doulH there he will be
and to iny the government is in dsnjrer
a is!tB, sure, that cannot be thouifht
bian hving : and God forbid this should
ease of the government that i^ cannot
itself without taking away this unfor-
gentleman's hfe, contrary to the rules
For the argument of private opinion,
it as dancferous as the precedent you
making, I will not arg'ue it from the case
be people, enlhuKiast* and madmen ; but 1
II urge it in the case of men that sat in jiidg-
ii^nt If opinion is to Justify the coudemning
man* let u^ never more cull thr verdicts
linst Mr. Cornish, Mr. Sidney, lord E{usse1,
■|en», miinlers. Ask the jury ; no doubt
them are so siUy, but in his opinion,
iity, 0ut ifopiuiou may condemn a
iin)of, w by not acquit him as weU»
It proof? Such a practice, 1 am
wouM never be endured. The projierest
od, I think, was proposed hv the gt-ntle-
thai began the debate ; and ( beg leave to
f(Ollow the same stA'ps, tu consider his guilt, how
it appears to us» and ^^heiher there be any
TMMOit fttr I Ilia extraordiiihrv miinuer of jiro-
cvB^Mtf .^ — The recital of Uiat bill are the argu-
nMOiiror it ; and those we send up to the house
i«flor^ for th*' pn^stngvif this hill; and first,
it mf\ tbut ftir J. F. \\uh indicted by the
HwliiiKitiv nf Pari* r :uid frfiodmiin, i5fC It
iay», ti> were appttirMed for his
bki, a iK^e davs the trial bud
€0m9 <.>" I uoi been (or the diaeofery
tiki- i 10 make i but il does not aay
VOL. XilL
it was put off at any other days or times, for
that rciison : but it i^Ws on, andfsays, he hatli
made several rtflcntious, \'c* instead «d' making
an ingenoons disenvery ; and then it reciter
how that Goodman is withdrawn.— I wonld beg
leave to pat gentlemen in mind of what was a
great inrhicemeot to bring this bill in : it was
saidj thai sir J. F. and his relations had done
it ; that they would prove that Goodman was
withdrawn by his means. Give me leave to
say, that there was no proof of it, mitess the
liearsay of Clancy, and the actions of my lady
Fenwick, are to he evidence, contrary to the
known laws of England, to affect this unhappy
gentleman in the c;ise of bis lift* : I say^ if any
gentleman had been of another opiiUon, cio
doubt, he would have ofTered that amendmetit
to the committee. — As to the (|iscovery that
sir J. F. hath maile, it does not appear to me,
whether it be true or fiilse : it is one thiocr to
give a vole to clear a gentleman's reputation,
and another thing to carry it so far, as to give
juilgmeut, th»t the f»er«oii that made those
reflections shall die, and that before any proof
of their lalshood. — Here is an indictment
foundnv and here is tm evidence withdrawn ;
that iii all I am satisfied in : and supposing tbc
pernon guilty, it is no manner of inducement
I'rom these arguments, to proceed in this extra-
orflinary manner, fiut I would consider the
matter of the amendment made at the com-
tnittee [ * Of which treasons he the said sir ,
John Fenwick is guilty,'] 1 can*tsay that ; and
therefore i cannot vole lor the bilL If he be
guilty, it does not appear so by legal evidence ;
and therefore I am to judge htm, as he appears
to me, and an innocent man. The law requires
two witnesses to convict a muu of this crime*
It is the greatest crime, and the law is so mer-
ciful, that it will not eJcpos« a man to such great
penalties, without demonstrative evidence. —
The first act of parliament tliat requires two
witnesses is, 1 Kaw, 6. The next is 5 Edw. 6.
And upon that act, give me leave to take notice,
that act goes a little further than the first ; for
tlie 5 E(hv. 6. does not only say there shall be
two witnesses, but it goes on, and says,—
which two witnesses, (they are there cat kd ac-
cusers, but mean the same thing,) shall be pro-
duced in pei-son before the party at his arraign-
ment, and shall there, before hfs face, maintain
and avow w hat they have in say. So the par-
liament particularly provided, iiiat there should
not only be two wiinesaes, hnt that they shouM
appear in proper person, in open court — I beg
lea^e to oljserve, that aAer the making of the
first act, in the 2nd or 3d year of Edward 6,
there was an attainder of sir Tho, Seymour, in
parliament, without ht*ariog of him ; and that
very self f>atne |iarliament, within two ye^rf
afterwarils, seems so to have resented that mat-
ter, that they made that provision, 1 have men-
tioned, ill tbe 5 Edw. 0 and to secure, that^ "
that ill precedent shoidd «lt» no harm, they put
ill that clause, 1 f ihis act passes^ 1 wi&h we dii
not repent it in lesv time than that parliament
did tbe attainder id sir Tbo. Seyaiour. 1^ us
fm
8 WILLIAM
ProcMik^ tgaim Sir Jokm Faimd^ [T4I
the g:ui4led bv the roMon, ihejiMttce, and the dii-
tcrtttao of tW act, though we mre doi boiMKl in
^<Mir ligislfttif e capacity by the power of it, I
DQOt hot ohserve, that from the cnakiDg- of that
> na persou has been attainted in any other
r, litl the duke of Monmouth : to gre^l
teOCTAtton has that law always had io all
f , lbo4ic^h a mo Ititwie of coc«ijMniciea lia?e
[luutienoriY in tUem all, 1 do not think it «o
1 1 at there fbiNild be two witiienea,
1 ^e witneuea iboutd be beard lace to
, and cro«H*examined. It halh been toM
, that (t ia natural justice and reason that
ahould lie two witueaset. A gentleman
k#d you, %vhcrc that natural jyftice was be*
ore the ttatule of Ed, 6. ? Sir, the atatuie of
15 Edw« i^, aaya, that every person that is at-
kin ted. abaii be « provable rneut attaint ;* and
»what may be from thence iufenred K>orc
baa thai the critne should he proved, for so
jcnme. But as to the proof required
ly that «ct, aud tiie acts of £d. 0, all tfaose
eta, by rery karuod opinions^ have been
bought dedarative of the common law : but Pny roosider first » bow tbia
that ij* acarce vvorth the enquiry, lincc it is cer-
tai4i huw the l«w stands ai tbia day.— An bon.
IgmtL took notice, that auch evidence as we
have bad, and such proceeding's as theaet woukl
not he reasonable in caac of impeachment ; but,
disiicig^ashed lietween that pmceeding' aiui
thia. But ccilainly the reason is the aamc ft
is Ime^ the sanie fiersons that accuse in otic
case, give ihcir judgrnent in Ibc other ; but in
cacb case, anch piivilem aa tr« jmt asd raft-
aonable, atijf ht to l>e iBoifed to the ferty ac-
cia««d. — I ahall add no more, ttut that we arc
making |a precedent, which cannot he made
iviihoul breaking: throngh oil the fences of ibe
law ; and when it is made, we know not who
may aufler by it.
&T Rd. Taapk. Ai lo the evidence you
have before yoo, I appeal to any man, whe-
itier at the common law, if there waa hut
fuie witness a^in^t a man, whether he was
not at liberty of demanding trial by battle ?
Tboae acts that have been made atnce, arc
made eertaiaty to provide, that in no caae
wbatseef er, a man should be so much as ae-
without two witneMea of the treaaou.
( to what iiath been aaid of the particular
evidence before you \ whM batb been ob-
aerred here, is a good objection in the courts
t»elow. J 4k> not say it dc^ disable a man
Irom lietng an evidence, becanie be is not par-
duoed ; but he is not ao giMid an evidence aa if
Jie waa paidoocd ; but &at I atauti upon is
Ibia ; aball you come here, and make a prece*
dent io this place to condemn a man to the
hi^heal jienaltiea, uinm leia evidence tlian you
Will allow any body eKae to do it ? That is
Hhat was nevtr done in narliament before.
^ ^ ill you make a precedent m parhajnetit, thai
^ i airy time they mar bring in a liitl here, and
judge a n»aii to death tor tfeason apoii no evi-
dence ?— Aa to llua bill itself, conaider what a
precedent yoo will make : there is nothing that
ftoy bill waa condemned tor in paih^uij^oli that
is not intliiabilh AQ
that yoo have hut one cvideaeei aai tiMli »
as I bife lokl yon: end wbaleMT esjr iMei^
privfttt pefveiioQ ia» it is tbe proof lUNIft
vern vou, Ttien this is » faiw cr patijm{
and that liath alwayi b«i«i oonAeoiiM '
make that evidence, tbet wna mA, «o
Sir, this ia,;beside^t making a law in a
oaae, against the oofnaioolaw of Eoglatid, atH
tbe right that ereryiBbieet baa: iliamakisy
law to bang a man wilboula trial ; iila maka
a law here, that waa uKiiduoed here ufwi
pr&tence to make bim m mrfoDoe. Every at
said, thai they did »et leek bia blood ; ao4
that be the secret tttdooeoicnit to tbia eaea, it|
ed«ag«foiis preeedent. The earl of Esito
when be broogbt the rack into the Tower, «fir
body knows the Ible that oMMriipon bim al""^
wanls.~Le4 eftj body Aiw ido tiMro waa
reason for reverBing Miv act of pmrfiMnent' '
are all agiiinst thiii bilt— Then to ibe
of it ; 1 cartU iina^hije any thing thaii
said to y<Mi upon tliat, it a ipoytid fW
lore you; it was for an boootiraUej
vindtcaliim, and it wai eot traa
by Ibe king, but by the hoeoorabte i
be told you, that if you had ft itiiM
these p«ner$, and rfftuired tt, he bed 1
k^ Tou bavetbem; Wif itbedtkeraat
of this conse^ueooei lAiet the fo««iiai
been in the utmest dittgri. would iihafi
tranamitted oofvettbe request of a piivi
ttfjwan, and M\ unto you, whetlter you j
proceed upon it or no ^— But itiaoba
the plot wuv go on itill : pray if tbia i
he cut off, does that cure it ? You are i
bim now, tliat he can't act in it ; so.tbiU ]
not heard ilie least ground to oeovii
that ibe goTemment would be in kas d
this ^enAeman was cut oE— Sir, we <
bere of going eoeerding to emr
^ire me leave to say to you wImI i
m the other day : that tn the woret of 1
when tbey did nut slick at murderiog of I
king, yet they stuck at this y thwy woo&d i
allow any man to suffer upon one witaeaai
tliey did* not admit of dt?[)ositiooi* agaixiat ii|
lord Alordauttt ; and my lord Mordaunt say
his life bv it. Vou have deposed kii
James for Dreakiug in nponlbe law j audd
any body believe that Blr. Hampden waa
guilty ot the treason he waa charged with 7
owned it before ihia Huuse; and yet be ^
tried only Ibr miademeanor, llMfe beia|[l
one wimese against bim ; eftd tbey that enai'
all other laws, stuck at this, and would ael \
late this law ; so that I think tlkere is oo i
cessity for making such aprecedenty and
think it would be the worst of precedeala,
Mr. BoKQwcn. f have obserted itpan I
defaale that some persons de^y that it is jai
able at any lime lo proceetl upon balls of l.
Uinder, and yet Ihe^^ donU diapme lliepow4
parUaments; bta at the same time aay. T
ought to go aoeorditig to the mbsB of We
tt«r-h&lL*-iAMlker t^rui it ti llie saim
?4IJ
tqion a BiU of AHautder*
' ipe ptoeeed hj war of impeachment,
or mt of atl&mdrr i I thtnl Mm much out of
iHe way ; for in that rase, the kirtls only ire
jadgMi ti4! you ar« th^ prosecutors ; aoi)
jOQ doa*t use your le^isUtlrr power iu thai.
— A worthy mem} oT mine Miid» h« hail
fifWn been mistaken m his own conscience,
when he thou^f»t himseif very fxiuch tn the
ri^ht. That ini2jht be so ; and rFtlunc was any
RMifD ratiooally to suppose, that sir John Fen*
wtek was not gfuHty, 1 should he of oj union to
be of the more faronrable side ; but 1 take it,
ih/tre h 00 room for any man to bdiei e bot he
is guilty, ^N^ow 1 wonKle^Eamitte whatgrotinds
we hare to beliere him g'uilty. Upon trials^
when ibey charge a jury with a prisoner, one
Sof their charge is to enijuire, whether he
fyr it Of 110 ? It is notorious that sir J. F.
fhr thb(, wliich is no small argument of his
Anotlfer \n^ that he was here at the bar,
did Bot deny the fact ; if he had confessed
no doubt but you would hnre concluded him
y J and w"i»en he do*?s not dany il, this h
mad door to it. — ^It hath bven told you,
y hilU of attainder hare been reversed as
iual ; it hath been as Qoiorious, that the ver-
of twelve men, and wheti men have been
hy their jieers, have been reveraed too,
1 wHl instance tn two or three. Ttie 6nit t be-
gin with^ was that of the duke of Somerset ; but
QiOlio^ coutd say but he was guilty of the
Sm:!, f>T he confessed it; but there was a now-
offW enemy, the duke of Northumbenand.
The next is' the duke of Norfolk, who was at*
in queen Elizabeth's time; and they
not by parlbmeut, and yet both were
And 1 tliink, as this matter stands
\ mme [^ntternen are of opinion, by the
evidence they have heard, that he is ^iUy ;
but I think nobody hath said, that it appears to
bim, by the evidence he hath heard, that be is
iofioeept. Now I desire to know, whether
eteiy man must not use bis conscience, to
}mAgp whether there be sufficient evidence ? I
adknowtedge there is ih) sufficient evidence to
cdovict him in Westminsler-haU ; hut there is
IBore to saiiafv my conscience, and the world
abroad, than iV Goodman was here ; besides bis
Dot denying' it, you have the evidence of the
liertona that died, who owned the same tiling ;
aiMl 1 mention that tlie rather, because tbey
OnfeBsed it to persons sent from this house ;
ami did not oaly confess themselves to be
guilty, hut acknowledged, that there was such
a cofiapiracy ; and sir Wm. l*arkyns acknow-
ledged iu particuUir, tbs^t he was to raise a
trtMp of hoi'iie, and that the French were to be
invited over : is this nolliing for the ley;isbtive
pnwer, that is to secure the peace and welfare
of the Ernvernment? — Gentlemen say there is
1 gnsti oeat of danger in this matter : some, if
vQu acqoH hrm, others, if you condemn htm.
If you are latisded hi' is guilty, by thi;^ bill
jQQ t^ tp a land -mark, that others may take
— « tbey do not come into this i>reil»ciiment i
the other hand, if you reject this bill, you
I give adv«ot«ge to your enemies j when
A. D, 1#M. [f 49
tbey shtdS see a id«ii that is so notoriausly
eoncemed in calltttff ii> a Fmrk army, th«
wurst of your eneratea, tm be aeot-l^ee* If he
be guilty, what danger is there of the pre-
cedent ? When a person in the like naflnrei
that hath fled for it, tliut lUn^n not deny rl ;
when Hvrn^ persons conl^ss it^ and dying per-
sons confirm it^ then there will be danger in
such a person.— Upon the whole matter, t
think there is no man that ever I lieardt lliut
does not believe him to be guilty ; siid il is
!»trange you should want eviilence, and yet
efery one think hiia guilty ; and I tlunk'no
man must be acquitted or cxtodemuetl, but ac-
cording to a man^a conscience. — An hon, per-
son said, Porter was do good witness : if Good'
man was here, he woulil not be so much \ anil
yet we must acuuit him because Gooilmao is
not here: ami therdore, upon the whole, I
think you will give your etremies a great ad*
vantage, if you acfjiiit bim ; and if you coit*
demn htm, you will do yourselves right.
Mr. Cowper* Sir, teinff concerned in pro*
secutions of this nature wi£owt doors, I have
hitherto decKned concerning myself in any de-
bate of this evidence, though unconcerned in
Ibe condurt of the evidence against sir John
Fenwrck ; but beiiiff to give my opinion and
vote as a judge, I shall crave leave ta give my
sense of this matter.— I wmibl beg leave, lit
the first place, to make ui^e of a distinction,
which, 1 think, will serve to answer set eral of
the arguments that have been made use of: I
think there are two things to be considered %
first, hia crime, and the proof of that crime ;
and then the other matters done by him subse-
quent, ^c. — ^Tbe crime and proof of it that bath
been given against him at your bar, is the
frmmd by which, I ihiok, l>efore God anfl man,
ouciit to give my alfirmative to this bill, by
whictt you judge him to die. What he hatli
done stibsequeot, coovinces me in my judg-
ment, thai we are here in a pnmer method and
course of proceeding against him ; therefore
tet no man say, lliat you have condenmed
him because he hath protracted his tnal : no,
you have condemned him for having been
guilty of high treason, mnntfcatly praved
against him : then let them not say, on the
other hand, will you condenm any maa that ia
at any time [guilty of biif h treason ? |9o | btH
when a man is guilty ol the wor«t of ireaeon*,
and this would have been manifestly proved
against him iu the ordinary C4jiir«e of proceed-*
ings, but that he, undertaking to atone for his -
cnme, and serve his country, hath jirotracted
his trial till one of the evidence is* gooe;
and then, though he preten<h?d to have a re-
serve, which he wouM make known to the
kiiig^s person, yet when he Uiinks he » out
of the ordinary reach of justice, he sets the
justice of hia country at defiance. Tb«« are.
gvounds, not why he l< to die, but to justtly
our jjroceeding m this iwiiwner. — Sir, 1 wouki
beg leave, in a few words, to take notice of •
few thtnga said in this matter: genttemcn are
atrti<l, ibAt tUt vriH be iBftde tite of by pot*
n3]
S WILLIAM III. Proceeding eguimt SfV Jekn Fmwki, [1M
Uniy to the dij«adraDtiig« of boneit men ; ^ml
yi»tt hiive be*?n tf>l<l^ that prei^dentii hay©
anti tlijen h a vt; bevn carrktl o n lo the jfti mm meal
' «f tbwit! ibai liave not been so. It h true,
||»r^ batli hteu a very bad die made of very
jlisl acii Iq relaliou to the pab[ic: bul Hbat
do gentlemen infer from tbatP Must wt
ti4Ve no such thin^ m justiuet" 1^1 us( not
the j^mUy he paoisUed, because I be s&me me-
th(Nl« nioy tie fnafle use of for the punishing
<?f hones! mati ? I am o^jt afmitl of what ii»e
posterity wih make of it ; if there eome time*
of violence nhen there are no p^rli^intfiUft,
Ibcy will not iraat Ih La precedent ; thei** are
others that have been eited^ lb at will tmmU
Jiioi-e justify tijose ppoceedinga ; nay, this may
l^roiect tlie innocent. If a bill come lo li
pfpceefjed tn a§^in&t another, he may say, sir
J. F. was heard |>ers«>naUy* and by his etmnsd i
that the <>iriJi^nce was produced before kiim^
imd €otifn>oled with him. An iu»ocent man
Baiy say, there was lliat e^rtraoitllnarv m his
crime, vFhiob is not in mine : he wtmid have
introdticed a fo rei^pi army, and nfttTtvards
tiavu ngs^rirated h'ls crime, by end«;avourmg
to aliu<ie the king, and creatin|f' a jtffilousy bc^
iwet-n I be bin^ and hia nr}ints|ers.«^8tr« ia the
next place it is »aid^ tliat ber^ it not legal ev t-
deaee ; which I thifik k a mistake : and, say
bame, though hen* b an evidence, ibat really
Ipcinvlntres them in Ibeir cou^lc-uct^ (1 am not
^ asliaintil to make ii^ of tli^ii word)» ytt itiey
m& not for pasFu^j;' thi$ hiD, hecanse thcfe is
not a Itr^Eil evidence . Wilh submiH«Lun, thai ia
a ms lake j before 1 Ed. 6, one witness wa» b
good evidi nee in liigh-li"eas45n ; but there was
tarifty of fipriiiun^ touching treason before
that time ; but nciUtet the first tior Hte 5th Ed.
6f ia the peiming or tvordin^ of theBi, nor in
I be reason of thcuOi were intended lo extend
to the Jiigh'COiirt of parliament ; so thai for
augbi that hatlt been Kaid, tbougb one witness
conoharated by circumatancesi us this cjase is,
and the coufe&^ion of the party^ would not be
legal evidenrie heluw ; yet witn submi^ion, it
is a Ir^al i'vidence iu p a rhu infant, even a^^c^ord-
jn;^ tu the strict rules of law ; heoauae no Jaw
haUi made mo witnesses requisite in this case ;
s»o that it U a coniiDciof evidt^nce ; ] think it
may b« justifi<^d to be a legd evideoee ^ and as
It cofk^iuGc^ me, that I cannot rejii^t the belief
of it, I mmit be Ibr this bill, nutwithstanding
Mfhat some gentlemen bafe liaid, by way ofen-
dearourinif to explode conscience as a rnle nut
to walk by in this case. One instance given
a^lbst it was, because a lian^^an lias not a
iliscretboary power to execute a man occOnling
to his cronieience, and out him to vvhat aort
uf death he p^eo^es ; as it we had not a beUer^
and more leg^iil, and discretionary power in the
high i^ourt of parUamt-nt than the hno^mao
has.— Hut we are toUl of se^oml inf^tancpa,
vhere mail, and iiair- brain e^l mi:?n have m^de
mte of ibeir coa^cience Ut pidliate their exira-
lag^ncies. No doubt it hath , and let me tell
you, i^igii^a hath beeti mad« u^e ot 4s a m^
- - -- - v - •- ~
tetice lo tlie worst of riJJanieft in til ttfH i and
yet I tiofie tbffy will not ftr|^tie, thalthcT»0Q;,%
to 1m no relij^ioo miither^ fur a gtmb lo mtia**
actiom*. IV ben mfrti come u* be jwlgei, I
wTJuhJ know what rule they culo hare faetiit
I ban a sedate^ well-iotbrme*J r4>nK^i*iK»f Be'*
low> wbeoa legal eiridcoce is given, jtt Iffte
jury are noibotmd to go by thftt N'^l #tideiM»;
they arc when they liavo heorii U, i«d^ oj
the fact, an4 ave to go by uo other rob, tka
what is ridieuled bc^re, evao the rule of lintr
own conicieuce* it wm said e«rly in the de-
bate^ by a member of ^rvil reputaLion^ tbit
thisi (exempt Moooio nib's case) i» tlie tinl pn*
cedent ut a bill of altaiuder tb^l bcg^o in fb^
linii««}. It M^ema the ancient way waa, for dki*
lofYli tn give tlie tiiljie$&c» thetr ottjJtaE, «o4
when they lhoo|fht lil^ they ieut down a ^11,
and the cntximons were to pmeeeil upim it:
but t tbmkj with iubmi^sioui fhis ia a raocK
hetfer way } and 1 bad much rather gift my
conBcoi U|ion bearing; eonvini-iiig etid^ncier iod
that the party b^ noibtn^ to say for himiitf,
than upo0 any hill lavDamitled Irotti tht^ lodfi
and no other rri<leiici^ than that they lli0tt|lA
i\t lapAs^ it. Home gentlemen huvc^fetagiwt
Wfigbt, or rather mi&takeci the ary^nmcnt f nj
ihey, sir John FenvTick is ooi a jnau so €OQii<
derable aj la endanger the o^ovcrmnent^ Ad-
mit that those tliat hare i^poke for the bill, hun
not made that u^ of the aq^ument ; bat tbii
h that t lay my 5n^er U|ioit in particolari ili»
plain he wVi to be geueral, and knew a mi
many of the otEcers, 1 am satisfied he lull
not made that atnoement i(> \m iajurcd ootiv*
try, that he oug'ht to hare done. I am si^-
Red that unless this bill proL-eed ^teatiily agaixat
him, you will have none of that discoTery.^^
[Here he nasintt^rruptcd by the uoise of soise
g'eotlemen« shewing: dissatistiiciion at that way
of ar^ i ngjj M r . Cow per prrt cec4«. Do Offi
let getillemen pervert this argument, and sct,
wilt yoy hang a man if hedo not confer? fi^:
hut when I have heard proot^ that be ia guiltj
of tite worst of treas^onSj and hath agigrarattd
his crime in that manner which he haih ikiat;,
ho do^rveK to die ; an less he will merrl his
hie by a dti^corery of what be knows. I thifik
it isi (jjf the highest importance to you, tliai can
be, that you should come to the further koon*
ledge of the othur branch of the conspiracy ;
the meeting of the French ktng*6 forces^ in Eng-
land, J think you are iu a proper method,
and perhaus may have a better issue of iWm
bill than his death ; but if not, ho will but
ftay tlie debt which he owes to lluj justice of
liii country.
Mr. Pag€i. Sir, I caouoi beliefe bat t shall
be heard, as to the little 1 tiar« to say, witli
some unc^^nebs, ufter so long a debate. Bat,
sir, iincc I did tAe the liberty to give my »pi-
nion, why J was a;;autsl this hill before : i
think It as reasonable lo i^ive you my reasons^
IK by ] do not stand conriuced by toe argumenis
1 buFe yet heard. And that 1 may the beCto'
give you my reasouic^ I Mbali, as well as 1 can
reioembcr, rep^t lotue of tbe at^ujuentt tli«t
'45]
upon a Bill ofAUainder*
A. D. 1696.
[746
lave been ur[;;ed-for the passinpf of it. If 1
nislake oot, somp of the aryrumeuts liave run
ipon the power and preru^tive of parliament ;
lome u|K>n what was proper eridenre in this
li^ court of parliament, other than what
A-ould be in other places ; others upon the es-
Tjiinlinariness of the occasion. As to the iirst
)f ttiese ar|;uments ; since gentlemen, much
more experienced in rules of parliament, do not
think fit to deliver their private opinion, what
rules parliaments may in reason he sup-
posed to have, 1 shall not say any thini; to that.
—As to the ai^uments, of what evidence shall
be sufficient t» adjudge a man to death in this
kouse : 1 confess, 1 shall at all times be very
orefnl how 1 give my opinion in matters of
life and death ; because I think the greatest
cautioo is to be used in that case ; and for this
tretsou, 1 cannot consent to pve my opinion in
one case, that I bliall think ht to retract in any
case afterwards. If 1 understand the meaninir
of the house, it is not in favour to sir J. F.
himself that gentlemen oppose this bill, but for
Ictr of ushering in a precedent, that may be
made use of against a better man. I confess,
here is a worthy member that spake last, said
something in bis argument that hath some
wciffbt with me. I did apprehend by tlie ge-
Doil debate of the house, that the |>arliament
had no rules at all, but what they would fix to
themselves : but 1 have a goodregani for his
opinkn : but if he says true, the evidence be-
foK you is not legal evidence in Westminster-
hall ; but it is legal evidence according to the
rales of proceeding in the high court of parlia-
meot : but I think, truly, if they mav be nre-
MiBKd to have any rules to go bv, notuing is so
plain to me, as that a nde of their own of so
hie date, as the act for regulating trials in
cues of treason, should be a rule to them:
aa^ it is said in that act, that after such a day
M person shall be brought to trial in any case
of treason, &c. but he shall be condemned
upon the evidence of two witnesses; and I
noit needs say, that act that was passed last
*Mins, is so much for the liberty of the peo-
ple of England, that 1 think it will be very
bard to repeal that substantial part of the law
M Mon alter it was made. — As to the cxtraor-
diaariness of the case, I am sensible wliat
ttresi hath been laid on that argument, as il*
ue stiengtli of this government did in some
nuasore depend upon your disposal of this
aattcr one way or the other : and since that is
the case, I shall speak tenderly of it ; for 1 do
*• much abhor acts of treas<m against the go-
^eramenl, as any man that hath sitoke for this
Ufl: I think as the crime is to be distinguished
ftam all others, as being a more than ordinary
crime, so 1 think the person that is concerned,
must be extraordinary : and I think, with siib-
Aisiion, there ia some difft*rence between prin-
cipal% and seconds in an act of treason. When
ytu cauoot come at a man being at the head of
■ itbeUioo, it may he reasonable to proceed by
kill id attauvler; but I think it is not to be
Med vpoB all occuioiis, or when yoa may
come at a person another way ; which, I
think, is the case of this gentleman. I am of
opinion, that there does not depend more upon
sir J. F. now, than when he was first taken.
Why he was not tried, 1 shall not examine the
reason ; 1 suppose it was because he gave some
assurance of his confession ; truly, I have
heard no other reason for proceeding against
him now, but those papers which have been
adjudged scandalous, and are so to all intents
and pur{K>ses, 1 do think truly ; but the liberty
of the peojile of Enj^land is very much con-
cerned in the revocation of that act, which was
promoted for the liberty of the people ; and
none of the ai^uments tliat have licen used can
convince me, tliat 1 ought to give judgment
upon less evidence, than is provided by that
act.
Mr. Shane, Sir, I hardly thought I should
have needed to have troubled you with my
thoughts in this matter, but that this honour-
able gentleman that spake last, has gone so far
in his reason, as to speak to matter of law : he
seems to extenuate the fault of sir J. F. ; and
gives it as a reason why he should not be at-
tainted! by this bill, for that he was none of the
principals, but only an accessary ; there is no
gentleman of the gown but will tell you, that
there is no accessaries in cases of treason, but
they are all principals, and equally guilty ; and
there is no evidence in this case to make him
accessary, but he is either principal or nothing.
— When 1 have made this observation, give
mc leave to tell you my own thoughts : as every
man i:^ to be saved by his own faith, so may
my salvation depend upon my opinion, accord-
ing to my conscience in this matter, which is
for passing this hill. — The last time, I gave you
my reasons why 1 was for this bill ; and yet I
have not heard them answered, thou<>;h a gen-
tleman said 1 answered myself; but 1 will
state the case, and desire him to reply to me.
1 did say then, sir, and do( so again, that I do
not think those scandalous papers any reason
to provoke yon to pass this bill ; and I do
think, if he should be threatened, it would be
a blemish upon his confession. Another thing
I put out of the case, that he is a man so dan-
gerous to the government, that if he esca|»e, we
are all undone. 1 do take him, that in his
person, interest and friends, he is not so ; ami
would not have that be a motive for the pass-
ing of this hill ; but take it upon the evidence
that ia before us, and the nature of our pro-
ceedings ; then 1 will say, we have great reason
to proceed upon this bill, for the preservation of
the government, and for this reason ; whereas it
is insisieil on one side, that here are the laws and
liberties of England at stake, and nobody knows
whose case may lie next. Sir, if vi c do not go
upon good grouuds anil reasons, that we do not
fear any bmly's following, God forbid we should
make this a prece«lent! liut pray turn the
tables on the other side, and see \\ hat the case
will be ; that here is a genileuian that e%ery
body of the house does believe guilty ; that he
liath been in a conspiracy to bring in the French,
and depose thfi king; and the niaa came before
us, ana we had no power to reach him ;
what
will be the precedent on the other side? It
will be easy to take off one of the witnesses bj
men of great estates, and then there is no com-
ing at them, even by the parliament themselves :
this parliament was of opinion, that they
conid not come at sir J. F. though they were
of opinion that be was guilty .^Bnt now, 8ir,
to that which is the question : it is allowed by
wry body, you may do what yon please ; but
without straining your legislatire power, I shall
ofierroy thoughts and reasons for it, upon these
three points: that the fact is treason; that
he is plainljr guilty ; and that we have a phin
jurisdiction in thiscase, iu the ordinary methods
and proceedings of parliament.--Sir,the fact is
treason, the meeting at several times, and con-
spiriug and consulting to bring in a French
power to depose the king. You have been
told by several persons, and the counsel at the
bar, tnat such meetings without some other
overt-act, is not treason ; but I affirm the con-
trary, for that is an overt-act of compassing the
death of the kinj^ : and sir Barth. Shower, who
did insist upon it at the bar, did otherwise act
bis part u|K>n it at the trial of Mr. Cook ; for
he offered it at first, but aOerwards he deserted
it, as a thing he could not stand upon ; for it is
tlM opinion of all the judges, upon a Ute reoolu-
tioo.-^Then, Sir, the fact being treason, is no
act er nntfticia. We are not making that trea-
son wnich was not so, but we are only judging
•of the fhct that was treason before; thougli if
it was a doubt whether it was treason or no, the
parliament hath a power by S5 £div. 3, to judge
that treason, that the courts below have no
power of. The next thing is, whether there
DC sufficient evidence of his treason before us P
I will put it out of the case as no conclusive
evidence at all, what Goodman hath said upon
his oath (further than that there was such a
witness that did and could swear such a thing,
and that he was cscamined before the jury ;)
and this i will take u[)on me to say (and I will
(j^fve my reason for my opinion}, that the par-
lumcnt is not obliged to two witnesses by any
law now in being. It hath been told you, that
from the time of Edw. 3, one witness was suffi-
cient till the statute of Edw. 6. Now I will
Snwe to you, from the statute of Phil, and
lary, that, by the common law, and all the
time between the reign of Edw. 3. and Edw. 6.
one witness was sufficient for this treason. For
that statute of Phil, and Mar^ does say, that
any person that shall brin^ from beyond sea
any false and counterfeit com, or be accused or
impeached of any offence concerning the im-
pairing, counterfeiting, or forging of any coin
current within this realm, shall, and may be in-
dicted, anaigned, convicted, or attainted by
such- like evidence, and in such-like manner as
was accustomed before the first year of king
Edw. 6. Now, wliat was the reason of that
statute before the statute of Edw. 6? Those
counterfeits were to be tried by one witness ;
and therefore at this day all the counterfeiters
747J 8 WILLIAM HI. Proceedings agMmsl Sir JtJm Fentad, [7tt
and ntterersof &lse coin have been Mamled by
ooewitnesa. It is said again, that then ■ the
law of natioDs, and the law of God, to the esn-
trarv. Gentlemen have said several tines al-
ready, that in murder and fklooy eee wit-
ness is sufficient ; which, saving sooie fiMls
parts of the judgment as to the roifcitBie ssd
attainting of the blood, is the suae pflnaVtm.
We are not In the land wbeiiB that law wen ia Ibicp,
for bjT that law, as to common Mont, th«e vm
a restitutran only : But 1 woold put a fettk-
man that sits by the bar tbb case ; Ey ths
ICfS> HHt
same hiw of Deuteronomy and Nnmberi,
he hath qnoted, adultery it death : wiH jmhi
contented that that should be to here T Thtj
are either all of them in force, or none oftboi
in force. I do say, that by the aUtole of Edir.
3. and ever afler, till the statote of Edw. 6, aas
witness was sufficient to ooovict any mt if
treason. And 1 de say, that the tialelst if
Edw. 0 do not preclude the pariiimcit hm
any method of proceedings. The alatule siji,
that no man snail be Indieted, &c. nar ibd
thev oroceed upon such indietment Froa-
the^ proceed upon tuch
which words in thettatote, T do phdniyMb
it appear to any gsntleraaa that wiH read it, H
is confined only to the eourts of WealBlBite^
lialt: For certainly, yon cannot caH a WB if
attainder to be a proceeding upon an indkl*
ment What I say, is only to ditcbaigeaf
own conscience, and to salve the tender en*
sciences of them that hear me ; and tboffwi^
I desire them never lo say, tliet Ibere engkl
to be two witnesses, belbre they answer whsl I
have said upon that statute. Then, Sir, rw
have need but of one witness, and you haveaii
captain i Porter before yon ; who, I think, set-
withstanding all that hath been said, is a oe-
dible witness. A gentleman macle some sbJM-
tions to his credit, and told you, he was net is
be believed, because lie was in the same ees-
spiracy, and had been in such a Tillainoos u-
tion : But, Sir, the same gentleman hath sAcs
confined you to the roles of Westminster-hsl ;
and he hath told you, it is a wrong place hm,
and that a man has not so g(oo«l a trial bereil
in Westminster-hall. Why ? the thinff tbit
was spoke of, of his being concerned in tbeii-
sassination, and of his being a teHow-conspiia-
tor with them, which is now ur^ as an obi0^
tion before you, is no objection in Westminslff-
hall. 1 would only take notice of another vb-
jection this gentleman made to the wibMS,
which he said he had from the bar; which wu,
that captain Porter was not pardoned, and bt
was now drudpng for his paidon : Butthst is
so far from what ought to be quoted, that to
that said it ought to be repnmanded for it
He made another objection against his beinf i
good witness, and compared it to the case sna
hundredor : but he did not remember, thatlto
man that was robbed is a good witness ; aadM
reason is, because of the necessity of the t
and that no others can be ; and the i' '
in an humlred cannot be a witneai
there may be others ; and that it the leawpw
this case. And for the preoedenti is R. SA
upon a Bill qfAilainden
D* 4lli*i time, no gentlemen can inskt
em, ooosMering the diflferences of the
■nd tli« one attainted the other : and
>re not re? ened upon the point of ju-
«, but bocaiMe of tne different rig^hts of
gB ; and nobody bad pretended to
the caae of the Regicides; they were
to tbe law, I mean such as were acta-
d beforathe parliament ; buttbeparlia-
taaed diflerent judgment on them ; and
r them were in custody. What was
I of Cromwdl'i case and others, they go
B same reason, that they were not heard,
Ibey were in custody.
Wkmrtm, A gentleman lately told yon,
lately passed an act lor trials in cases
m, and now we are in this proceeding,
oing something that is contrary to it:
a thing thai would stick with me, if I
fot answer it ; but I appeal to every
an in this house, whether that act hath
t of rdalion to trials in parliament ; for
•ly to direct the courts m Westminster-
haye only this Id say ; f think the evi*
ary fuU before you. I think you hare
very good witness, and the connsel for
Mier had liberty to confront him : If he
. been guilty, the prisoner at the bar
lave dttied it : 1 am convinced of the
r it, and my oonscieiice is to make a
St upon it, and that is all we can
hffrtyu A worthy gentleman of the
be bath taken pains to find out prece-
jnstify our proceedings ; and another
ere is no not to circumscribe our pro-
I. But since gsntleroendifier so much,
me a great deal of caution. This 1
ibcve is a law of the land by which
ought to be governed : I takie this to
Etrnordinary method of proceeding, and
Iba lords will take more care of the
lian the oonunoDS.
Id. HmHey. 8ir, I cannot saiisty mysdf
r this bill ; and in a fiew words, I shall
ricamalbrit It bath beeu said, -that
iament is unlimited. I do agree, that
Ml tied to the rules of Westminster-
shall only mentkm the reason why
aeMes are required in cases of higb-
If any will kwk into the history of
I, tiiey will find it hath been often the
nf the crown to trump up plou upon
set; and thevefbre these acta took par-
an dMR should be two witnesses to
cfrct: Thio is the reason of the law,
hink, upon it the liberty of the subject
ad ; and tbereibre 1 cannot be for this
A. D. 1696.
[750
PaoCEEDIMOS IN TIIE HODSE OF LoROS.
the question for |»asing this Bill was
I the House divided. Ayes, 189;
I the affirmative, the
op to At Lords for their con-
The Lords took a voy extraordinary method
to force their absent members to come to town.
They sent messengers tor them to bring them
up; which seemed to be a great breach on their
dignity ; for the privilege of making a proxy
was an undoubted right belonging to that
peera^jne ; but those, who intendedto throw out
the bdl, resolved to have a full House. The
bill met with great opposition ; and tlie debates
were the warmest, and lasted the longest^ of
anv that had «ver been.
The substance of tlie arguments in the House
of LrfNrds, brought against tliis way of proceed-
ing by bill of attainder, was, that the law wss
all men's security, as well as it ought to be
their rule ; If this was once broke through, no
man was sale : men would be presumed giuhy
without legal proofs, and be run down, and
destroyed by a torrent : two witnesses seemed
necessary, by an indisputable law of justice, td
urove a man guilty : the law of God given to
Moses, as well as the law of England, made this
necessary : And, besides all former ones, the
law lately made for trials in cases of treason
was such a sacred one, that it was to be hoped,
that even a pai^iament would not make a bfeach
upon it. A written deposition was no evi-
denoe, because the person accused could not have
the benefit of cross interrogatiog the witness,
by which much false swearing was often detect-
ed : Nor could the evidence given in one trial
be brought against a man, who was not a party
in that trial : the evklence, that was ofiered to
a grand jury, was to be examined all over
again, at the trial ; till that was done, it was
not evidence. It did not appear, that Fenwick
himself was oonoemed in the practice upon
Porter: What his lady did, could not be
charged on him. No evklence was brought,
that Goodman was practised on ; so hxi with-
drawing himself could not be charged on Fen-
wick. 8ome very black things were proved
against Goodman, which would be strong
enough to set aside his testimonv, thoiu^h be
were present ; and that proof, which luulbeen
brought in Cook's trial, against Porter's evi-
dence, was agmn made use of, to prove, that,
as he was the single witness, so he was a doubt-
ful and suspected one : nor was it proper, that
a bill of this nature shoidd begin in the House
of Commons, which could not take examinationa
upon oath. These were the aigumenta used by
the I^rds, as well as the Commons, against the
bill.
On the other ride, bishop Burnet being con*
vinced, that Fenwick was guilty, and that the
method of proceeding by way of attainder was
not only lawful, but, in some cases, necessary,
and having, moreover, by bis search into par-
liamentary proceedings, on sucli occasions,
when he wrote the History of the lUfonnatioii,
seen further into those matters than otherwise
he should ever have done, he thought it incum-
bent upon him, when his opinion determined
hiiii to the severer ride, to open his reasinu in
751]
8 WILLIAM IIL Proceedings against Sir John Fenxaickf
pK
justification of. his fote ; which he did, to this
effect :
«( The natare of goverameot required, that
the le^j^islature should be recurred to, io extra-
ordinary cases, for which effectual provision
could not be made by fixed and standing* laws.
Oar common law grew up out of the proceed-
ings of the courts of law : afterwards this, in
cases of treason, was thought too loose ; so the
law, in this point, was limite<l, first, by the fa-
mous statute in Edw. 3d'8 time ; and 'then, by
the statute of £d. 4th's time, the two witnesses
were to be brought face to face with the person
accused ; and the law, lately made, bad brought
the method of treason to a yet further certainty.
Yet, in that, as well as in the statute of £dw.
3, parliamentary proceedings were still except-
ed. And, iud^, though no such provision
had been expressly made in the acts themselves,
the nature of government puts always an ex-
ception in iavour of the legislative a'uthority.
The legislature was, indee<l, bound to observe
justice and e<juity, as much if not more, than
the inferior courts ; because the supreme conrt
ought to set an example to all others, liut
they might see cause to |niss over forms, as
occasion should require. This was the more
reasonable among us, because there was no na-
tion in the world, besides England, that bad
not recourse to torture, when the evidence was
probable, but defective. That was a inij^hty
restraint, and struck a terror into all people :
and the freest government, both ancient und
modern, thought they could not subsist without
it. At present, the Venetians have the ir civil
jurisdictions, and the (Jrisons havu their high
courts of justice, which act without the Ibrnis
of law, by the absolute trust that is reposed in
them ; such as the Uoniaus reposed in dictators,
in the time ot'thcir liberty. England had nei-
ther torture, nor any unlimited magistrate in its
constitution ; and therefore upon frreat emer-
gencies, recourse must be had to the supreme
fegisiaturc. Forms are necessary in suhortli-
nate cases ; but there is no reason to tie up the
supreme one by them. This method of attain-
der had been practised among ns at all times.
It is true, what was done in this way at one
time, was often revei-beil at another ;* but that
was the effect of the violence of the times, and
was occasioned often by the injustice of those
attainders. The attainders of inferior courts
were, upon the like account, otlen reversed :
But, when parliamentary attainders went uj)on
good grounds, though without observing the
forms of law, they were never blamed, not to
say condemned. When poisoning was first
pntctised in England, and put in a pot of
porridge in the bishop of Rochester's house,
this, ivhich was only felony, was, by a special
law, made to be hi^h treason ; and a new pu-
nishment was appomtcd by act of parliament.
The poisoner was boiled alive. When the nun
of Kent pretended to visions, to oppose Henry
8N divorce, and his second marriage ; and sain,
if he married again, he should not live lon^
after it, but should die a ? iUain'a death ; this
4
was judged in parliament to be hu^
and she and her accomplices suffmd aecnid-
ingly. After that, tliens passed many atlui*
ders in that reign, only apoD depoutiooiy thit
were read in both houses of parliament. Iiii
true, these were much blamed ; sod there mi
great cause for it : There were too masy of
them; for this extreme way of proceeding is
to be put in practice but seldom, nnd upoa
great occasions ; whereas many (rf* these wtnl
upon slight grounds, such as thesufleringmM
fKissionate and indecent words, or the misf
some embroidery ingarments and coats of arm
whh an ill intent. But that, which was iodeed
execrable, was, that persons in prison wtic
attainte<1, without being heard in their d^
fence. Tliis was so contrary to natural jintice,
that it copM not be enough condcnmi
In Edward 6*8 time, the lonl Seymour ms
attainted in the same nmnner, only with tbii
difference, that the witnesses were brooglitli
the bar, and there examined ; whereas fiirnci^
they proceeded upon some depositioDS, n
were read to them. At the iluke of Smmt*
set's trial, which was both for high
and for felony, in which he was ac,
of tlie treason, but found guilty of the Mi-
uy , depositions were only read agaimt kia ;
but the witnesses were 'not brought ftoe to
face, as he presseil they might oe. Upoi
which it was, that the following parliamenttf*
acted, that the accusers (that is, the witoam)
should be examined face to face, if they «nt
alive. In Elizabeth's time, the parhaoKrt
went out of the methml of hw, in all the itffl
ot'their proceedings against the queen of Scoik
It is true, there were no parliamentary attain-
ders in England during that long and gkniov
reign, u|)on which those, who op(tosed the kill
had inbisled much ; yet that was only,bectu«
there then was no occasion here in EngUndiv
an^' such bill. But in Ireland, where ink
things were notoriously true, which yeteooU
not lie legally proved, that government wtf
forced to have, on many different occasiotfi
recourse to this method. In James rsliuMi
those, who were concerned in the Gunpowder
Plot, and chose to be killeil, rather than takes,
were by act of parliament attainted athir dnir
deatli ; which the courts of law ctmid not da,
since, by our law a man's crimes die with hisi*
self; for this reason, because he cannot nnkc
his own defence, nor can his children do it iir
him. TJic famous attainder of the earl <f
Strafford, in king Charles I's time, has ben
much and justly censured, not so much be-
cause it passed by bill, as because of tbeiiyiu^
tice of it. He was accusetl for having A
upon the house of commons rcfusinir to gruj
thesultsidies, which the king had asked, * Thtf
* the king was absolved from all the ruleill
* governntent, and might make use of force H
* subdue tliis kingdom.' These Mords *«•
proved only by one witness, all the rest of Ihi «
council who were present, deposing, that th^
reniembeivtl no such words, and were | **
that the debate ran only, upon the h
a Bin nf AHuintieT.
A. D. 169S,
[T5i
fbolHiti^ r m tlidd tliovgH * this kingdom/
•Itol^jr 0k^»f must be roeani of En^fland, yet it
ifHf lit well lie meant of » that kmi»dom/ which
r tbc subject then ©f the debate. Since then
words were capaWe of that faTOuraMc
e, and that both he, who spoke thenVf ami
KVf wbo heard them, affirmed^ that they were
uU imd uoderstuoil in that sense, it w&ji a
MMwt |»ernicious precedent, first to take them
to the matt udious sense (possible, and then Ui
flggtpoy bin), ivbo ssLid tbf^ti, upuo the testi-
mom/ «f ooe sini^le ejsecjiiionable witness.
Wbereaiif, np^n the cornnioivs refusipg-togront
ibeldiig^s denittiuL he hnd pl^iinly Qchk^efl tl»e
kltvg W sttbduo hi« people by forc^ it is Lard to
telly what the portiament might not josttj hnvit
dtnie, vr would not ilo aguiti io lUe like c!ase.
In ChaH«i 'Xia tiuiesoiae of tl^ most emtaeat
nfilMt regicides were fUtainted, a<W they were
tl ; and in kio^ James's tinoe thednkeot*
Etmaiitb Will attainted by bilL These hist
icJers Imd their first be(fifiak>g to the
hoisao: <»r cnitiinoss. I'hns it appeart^ thai,
tbeae bst two hundred years, not to luention
iQiidj antieiiLcr (irecetleiTtSf the nation had
^MMpitraordinary uci^aslooB pmeeeded in this
^^^^P^lAfy way by bilL There were also
^li^^r«cetfent9 of this iQ<?thod, And where-
i0 iiiAus said, (hat nu i\\ fkaHianicnt might
f r V thtif* tiHi far, it i$ certaiu, that the oatkio^
, ^Tscm in it, must be safe, when
:i<m own hands, or in tho^ofa re-
iiive chosen by liieinselv^es. As, on
! oltiKr hand, if that be ill chosen^ there is
hti|t <br it ; the nalioti must perish, for it is
' their own f»iu)L 'I*bey have already loo
t^uts for Uiis way ol^' proceeding, if
h> make an il} use of them. Bnt a
HI 1& ttoly a ground or warrant for the
lififf upon the like occasion. Two
! laiiT down for all hills ot this nature ;
; the naatter be of a very ejiiraorthiuu-y
JHB|& Lester critDes bad better be jm^sifd
^^^H^n j^onifihed by the leglshtare, llf al)
^^^BleSt that cai^ he contrived against the
sfi^lt, eet tainly the most heitiaus one is« that
<if briDfilog in \ torei^i force to QafK)uer us,
Ttiis ruias both us and our po«terity for ever.
Pistractioiif al home, liow mxX soerer, eTcn
f should end erer so tragically, as
iftd in the murder of the kitij^ and m
usur|iatian, yet were capable of a
chsja ajad a cnre. In the year 1660, we came
\ to our wivs, and all was set rij^ht agfain.
new there is no prospect, afWr a foreign
eaaqacBi^ but of slavery and misery. Aqd,
bow black s>oever the s)i^itii>inatiii0' a king' must
need appc*ar, yet a foreljjn conquest is worse ;
li* ritmjr thekioffdora; and therefore
and contriving that must be the
cktLSt ol crimes. But, as the importance of
l^maiter ou^bt to he ectual toi»uch an unusual
foceedingf, so the certainty of the facts
b' be such, that, if tiie defects in le^l
*to be supplied, yet thiii ought to b*^
stun sitch groumfs, a« make" the fact
a co«rt (Vf taw eodhi not proceed open it, yet
uo man could raise m hiinHelt'a doubt coricetn-
m^ it. Antieotly tieason was jud|^cd as a fe-
lotiy still is, upon such {nesumptions, as natis^
^efi the jury. The law has now hmitfd this tit
two witnesses hroug^ht face to face. Bnt the
pari lament may still take that hherty,. which j4
denied to inferior courts, «f judging- this mat*
ter* as an ordinary jury does in a case of |elony«
fu the present case tliere was one witness viva
tfDtr, upon whose testimony several pr ^ T
lieen condemned, atid ha<l suffered ;
neither at their trki, nor at their deiKu, lus-
prored or'denimi aov circumstance of his depo-*
sition«. *lfbe had been too much a libertme
in the cmrm of his life, that did mit destroy
hiR credit as a witness. In the (ii-sC trie) thi4
niijL^ht have made him adonbtitil witness ; ^iti
what >»ad happened since liad destroy eil tha
pos<R(rtlifv eren of suspeeliiig bis e*n)eirce, A
party had been in intefcfft cpneerned to inf^nirw
into 'his whole h|!e, and in the present ease bad
fuK tiitie for it ; ami every circiratstaiice of hr»
depostlioB iuid been exuniiiieiV; and y^A ao*
thin^'had been discovered, th tt couM ^o inoelt|
as create a doubt. Ail was still u(^toiYtiha<i9y
sound, and true. The only circwiia|pwci?v m
which the dyinsf specchesi'* »ti'^f i*k.i «i,iflEpifle4
oij his evidence, secnied to was
conrernin^kinij JanTcs*scnu rtone
*rf them denirti reafly what Fort^ had depsa-
eil, whirh was, tlwu Ctmrnoek told him, thai
there was h commission come from king Jamei
for attack m^ the pfcee af tJranjare's ^rards.
Tfley fmlfileoied, that there was a corwmisskiii
fbr assawtoatmgf him- Sir John Friend and aTf
Wm. Perkina were cowdemoed for the eooaul-*-
fatii^D uow given jn evidence sj^nst sir Jukn
Fen wick. They died not denyinjf it. m» tha
contrary they justified all they Inid done. It
cottkl not be supposed, that, if there had beeci
a tittle in the e?iden<je ibat was false, titej
should both have been sa far wanting la tbeift*'
selves and to tlunr friends, who were to be tried
ttpoo tbe same ev^idetiee, as not lo hare declar-
ed it in the soleamest manner. These thing*
were more andemably certain than the eW-
denee o4* t^n witnesses could possibly bt%
^Yiinesses mi* ht conspire to swear a falci^hrkod ;
bnt, in this casej the circumstances look away
the posiribihty M' a doubt* And therefore the
porliament, withtrnt tftk-inij any notice of fJootl* *
man's evidence, nii^jht well" judge Fenwick -
guilty ; for na man eould doubt of it in his owu -
inind. Tlie antient RaBiaiiB were very jealoua
of ftK-ir lITjerty ; but, bow eataet foeter thej
u i ordinary eawa, y«t, when any of
11 u^ seemed to hare a dasf 271 af mak-
ing himself kinsf, they either created a dictator^
to su|ipress or destroy him, or else the people
proceeded a^inst him in a summary way. By
the Porcian law, no citizen coulil be put to
death for any crime whatsoever ; yet such re-
gard did the Romans pay to justice, even abore
law, that, when the Cam|>anian legion had
perfidiously broke in upon Ithegium, and piU
^UL, Xtll.
appear 90 rridei^iij true, that thoogb J lageil it, tliey put lUeiu all to death for it. in
I 3 C
T553 8 WILLIAM IIL ProceetKngi against Sir JohnFenwick^ [ISG
the famou. case of Catilioe's conspiracy, as I ford VVeymouth, ^^^^^J^^ wuSSS ff
tbeeYidencewaackar.andthedangerexireine, Eresby Ferrers, ^.tzwa^tw. \VU1^^
Se accomplice, in Ulcere executed, notwth. Brook, ^^{'^"f^'v K^^^
9Undioir the iVcian law. And tliis was done Jerroyn, By'^"^.,^^^f'*^'l?.^™^^^^^^^
by the Srder ot ihe mmte, witUoii^ eiitier hear- | Dartmoulh, Guilford, Godolphii*, Jeffmci,
ioffthein raake their own defencp, or admitting
them to ciaim the right, which the Valerian
Lemster, Pawlet. lu all tiO.
Protest thereon.— The Ijards who were for
the negntjre entered the followiag Vmtm :
" Because lills oraitaiuilernj^amst nertoni
ia prison, aiwl who are lliercCoFf lialls to be
tried by Jaw ate of dangerous consequeDce to
the tires of tha sutycci, and, a* we camlte,
may f^nd to the sulivcrsion oflhelawf ofthii
kiti(|dom.— Becaiise the evidence of grand
egaid he had, either to law j^j^j.^a^,,^ of ^ hat was Bwnra before them tgauiit
I, upon ihls tfccasioQ, he had ; ^^ j p ^ ^\^^ ^y^^ evUletice ofihe pettj jurr-
DC to protect those, who were | ^^^^^ ^^ ^.^^^^ ^^^^ s\*orD at the trial of ot1i«
..»A4lkAi>>* ^ ^.l^.!!*,!^! kdi-i»- knth which ire
law jfave them, of an appeal to the people, yet
that ttliiile ^Moceedlngr was chiefly directed by
the two ffrealest as&eit^rs of piil*lic liberty, thai
ever lived, Cato and Cicero. And Ciesar, who
opposed it on pictence of its being agfainstihe
Porcian law, was for that reason suspected of
bciD« in the comtedtraey. It appeared atWr-
wavds, how litile regard he bad, either to law
orlibcarty, thoug^h, " ^' ~ "
■uide use of the one
in a plot against the other.
ThitJ last ejipn;s*ion was much resented by
those, who were against the bill, as carrying a
severe reflection 11^011 them for opposing it;
anil JDdttMl tilt: bislu»|p. though be only offered
what rea^Oiis occurred to him to justify his
TOtin^for the bill, fell under a great load of
censure on this occa.sron In condusiion, the
bill passed by a sniall ratijoritj of seven voices
•nly, there being G6 for it, and 60 against it.
A List of the Lords for and against the BiU.
Bishops for the B«//.— Canterbury, Litch-
lleld, Sarum, CheMrr Ely Oxon,, Nonvich.
Peterborou»h, Gloucester, Bristol, Lincoln,
Chichester*.
Lords Temporal for the BiJil— Prince George,
Norfolk, Siitithampion, Ricbmr>nd, Sl Albans,
Bolton, Schomberg, Newcastle, Usfnrd Der-
by, SulFolk, Bridgpwater, Boliiitf broke, Man-
chester, Rivers, Slattitbrd, Sunderland, Siind-
wicb, Essex. Waccleafield, lUdnor Portland,
Monmoutli, 3IoiTlii^iie, Marlborough, Scaf^o-
tongh, Wurrinjrtou, Bradford, Komney, Tan-
kervillc, Abt-rgavenny Dtlawar Berkley,
Morley, Kwre, Wharton, Sidney, Iiovelace,
Howard, Rubv, VangUan, Ward, Culpeper,
l^ucas, Uockiughafti, lierkiey, Cortiwalhsj^Os
born I 0 ' — * ii - A -1.1
"IViiSton
Wmton, * , " jv. nam a.„. ,w-..-, - -t — - ^ -
ford, Bath and Wdls i^^m, H. London, Uil erfford W illouj;bl)T,
Lords Temporal againii the i?i//.— I x?e<ls, j^^^,^ [i, Ferrers, Ciraiiville, Fitzwalter, llalU-
Pembroke, Somerset, Ormoird, xNoUhumber- f^^^^^ LiniUey, P. \VJuloii\ Arundell, Lempsto',
land DeTonshire, HalilaXT Normanby, Und- Hertfon^ Camarvonj JmmU Exon\ Jefliff|%
Ruv, Dorset, Knit, Huntington, Northampton, Northumberland, AUiiigttHi,lunsdim,Ch*Wi^
Bristol, Winchelsea, Kingston, Carmarthen, Scarsdale, Normanby VVev mouth, Tho. Me-
Thanct, Scarsdale, Balh, Craven, Uurlm^ion, ^^^.i^ Dartmouth 8u&sC]i, Northampton, Bath,
Fcvei-shanv, Sussex, Berkley, Nottingham, Uu- | rj,^^^, Tt,iffeii Bristol, Leeds, Uochester, Uigb,
Chester, Abin|,noB, CarliaJe, Toriingtoo crc- j >\ ipbyde Broke."
'T"as to Bishops .oim upon Bills of At- j ^ The' king u^avo the royal assent to this bU
taindfr, seeVat'b^^ ila;.k; and the books Jamiary the lllh, lo97.
lirt^tr^tlS^pe^rS^^^^ 1 Tbe WRIT .. I^-utin, sir John FenwiJ
b^ ;ops lot v^ hi case of blU upon cnrcaMon !>einp under the whole Bi-oad 8«l,i«
.f lorll Danbv' s impeachment. Sec also. Bar- enclosed m .t.
rinijlon'sOirservatiouf on Magna thftrta, and
men, were admltteil here; both which ire
against the rules of law besides that they €\^
agreed in their testimony.-^Becaiisc- ibr mkt-
mation of Goodman in wrilintj was receir«d,
which \% not by law to be admitted ; and tbe
prisoner for want of his appearing face to lict,
as is ret^uired by law, could not have iheadvin-
tage of cross-examining him.— And it did not
appear by any efideucej that sir J. F., or aay
other person" employed by him, had any wv
persuaded Go oil man to withdraw himself; and
it wi>nld h^ of very danjjerous conueqneoce,
that any iicrson so ^ccusetf shouUl bt; condeim-
ed ; ior by this means a witness, who rtiU
be found insuflicient to convict a >na>M»^
have more power to hurt him by his abscncr,
than he conlil have if he were nroduced tira
voce a;,'ainst him.— And if Gowlman W ip-
pearcd against him, \et he xuas so iidamom in
the whole ct.ursc vt his Hff, and particularly
for the most liorrid blasphemy which wai
proved ajjainst him, that no evidence for him
could or ou;;ht to have any credit, esi»eciaUy m
the case of blood. So that in this case, tbwe
was but one witness, viz. Porter ; and he. as
we conceive, a very doubtful «»ne.— La>uy.
because sir J. F. is so inconsidcrablii a uian,»
t^/»lut. i37 Udw. 1.
" Gulielmus terlins Dei Gratiit Airfj
Scotiic, Fiaacise, et Uibernifie| ReX| FiM 9*
757]
vpon a BiU of AUainder.
1696.
[753
&c. Tic, Cora* London » el Fic, Com* Midjc,
fialut^m: Cum Joh«nn«»s Fenwick, bar, fer
fMieniiain mlurti ad sej^ianem pmet^entis noslri
ParliameDti a^iuil Westiiijost, super TicestmuiQ
diem OctubhSf AiiDO RegDi nostri octavo, |>er
prorogationfm leat. edit, dc alia |irodilione |H:r
H^Bum perpetraL et commiss. atttnctus iuit, et
^^ecutio auper inde adimc restat faciend. el
^ia pro cerii^ eau^is et ^oosideratioulbus iios
^)eciatiter movfntiUuSjtotamexecutiomjm actus
attinciiifDe pi-^edict. super dtci. Joliannem Feu-
wiek, imeter amputaltoiiom Ca|ntis sut, otnilti
¥id(oitiu5; ideo prteclpimus vobi« ct per pro?-
•emes Brrolter injiingendo mandamus, quod in
€t super viceaiinum tertium diem iusteutb
inensis Jatmar. inter horns nonam et nndccU
mam ante meridiem ejusdem dtei dictum Jo-
JujiQem Fen wick in Goal a nostra de Newgale
cub Cuslodia vestra nunc existent a Goal a
|iMedicL unique ad Tower Oill| ducatiSf et Caput
ipisauB Jobannifi Feuwick ad tuuc et ibidem nm*
fkutaj-i el a Corpore sue omnino sepamri facia-
lis. Teste me ipso apud Westmotmat, decimo
Ilayo die Jauuar. Anno Keg^ui nosiri octavii,
Tbc Label. CHtrrL.*'
Fie. Com » l^od, et ftlidx, de esfccutione
lacicrul, Jobn Fen wick, bar. aulbori'-
t^le Pari, Aitinct- Chdtl.'*
AH the Punishment being remitted but Be-
oil the 2flth of Jatiuaty 1697, iir
Isn l^enwick was brougbt to a ^ajfold
etud on Tower Hill, whtre he deliirGred
PAPER tu the Sberiffa.
** Speaking nor writing was never my talent:
1 Bhall tbei^tbre give a very short, but tuithtul
ount, tirst, of my »elig:iou, and next, what 1
■ rao*l innTteenily ri>r, to avoid the ealnm-
. 1 may reasonably expect my enemies will
upon me when d«'ad; since they have
faJsely and maliciously aspersed me,
bi!st uiidi^r my miKtortunes.
As tbr my r^li^rioQ, I was brouglit up in
i churcli uf England, as it is eslablisbed by
r, and hate ever professtid it ; though I con-
I bave been an unworthy member of it, in
living up to the strict and t^xcellent rules
eivf ; for which I take shame to myself,
I humbly asik forgiveness of 'God. I come
' to die in that C'ommunion) trusting, as an
and beurty penitent, to be received by
f mercy of Godj tbrougb the merits of Jesus
my Saviour.
ly religion taught me my loyalty^ which
i^od is untainted; and I have ever en-
in the station wherein I have been
if to the tjtmost of my power, to support
\ of England in the true and hneal
arse of descent, without interruption.
^ An for what 1 am now to die, 1 call God
witness, 1 went not to that meetiug In
Leiden ball street with any such intentiou as to
iDviLe king James Liy force to invade this na-
ilACi ; Dor \tas I myself provided with either
Jione or arms, or engagetl tor any number of
mcD^ or gave particular consent for any sneb
|Ytti^, fts is most faUly iworu against me.
■mble
linst
** I do al^ declare, in the presence of God, ^
that 1 knew nothtog of king Jameses coming
to Calaifit nor of any tiivasiun intended froia.
iheuce, till it was publicly known: And th«i
only notion I htid^ that (iomtlhing might be <
attempted, was from the Toulon tleet coming' j
to Brest.
'* I also call God to witness that 1 received the
knowlalge of what is contained in those papers
that [ gave to a great man» that came to me tn
the Tower, both from letters and messages that j
came from France; and he told mej when I ^
read them to him^ that the priikce of Orange
had been acquainted with most of those thinge
before.
** f might have expected mercy from thatj
Iirince, because I wa^ instruuicntal in savnr^^
via life: For when, about April 1695, an at* !
tempt formed against him come to my know* J
ledge, I did, partly by disstiaiiions, and partl/.^
by delays, prevent that design ; which, 1 sup*
pose, was tbe rearion that the la&t villainous pro*^
ject was concealetl from me.
**' U there be any persons whom 1 have in-
jured in word or ileeil, I heartily pray llieir \
tuirdon, and l>eg of Ood to pardon those who^i
lave injured me ; particularly those who with ,
great zeal have souglit my life, and broui;Ut^
the guilt wf my innrtcent blood upon this nation, j
no treason being proved iijion me,
** I return my most hearty thanks to thoiffi
noble and worthy persons wlio gave me tbdr ]
assistance by o|ipc>siiig this hill of attuinder,!
without wliicb, It had been im|K»Si«ib1e 1 eould
bare fallen under the sentence of death. G*m1^
bless them and their pijslerity ; though 1 anL.i
fully satjslieil they pleaded tiieir own cause, j
while tbey *lefeuded miue. )
*' 1 pmy God to hle^^ my true and lawful)^
sovereign king Janus, tbe queen, and tbe^
prince of Waits, and restore him and bis p09»
terity to this throne again, for the peace and^
prosperity of this naiion ; which is impossibU
to prosper, till tbe govertimeot is »ottled a|>OD i
right foot.
** And now, O God 1 I do with all humblej
devotion commend my soul into thy bands, tht
great Maker and Frcsffrver of men, and lover ^
ot souls; beseecliin^ thee that it may be al*J
ways dear and precious in thy sight, through J
the merits of my Saviour Jesus Christ, Amen.*^
«* John Fenwick,**
Then be submitled to the blocks and the
executioner severeil hia bead from his body.
ikCm>
watJ
* In tbe Harleian Misc. 01dy<i republish e
** Contemplations upon Life and Deatli,"
as tbe composition ot' sir John Fenwick. Mr.j
P^rk, 1 Had. ."Ilisc. 54*2, ed l»Oti, states that J
Philip de Moroay lord of Plessii Marley,
the author of those Contemplations, which we
Srintcd in 1576, and translated fmm the French
y the celebriiled countpss ol Pembroke in
15Q0. Qu. If sir John Fen wick were not ihi
maker of tbe trauilatioa publi^beii to the il%rly
Miicellany I
W]
8 WILLIAM III. ProceedingB agdnji Jchm Bammdi and oAtn, \70
John began to entertain thovfrhti of feUaf
from under his father's diseipliiiey who imI
393. Tlie Case^ with the Proceedings against Major JoHir Ber-
XAHDi,* Mr. CouvT£B» Mr. Blackbukk, Mr. Cassels, Mr.
Chambers^ and Mr. MzldruMi on Account of th6 Assassi*
nation-Plot ; 8 William III. a. d. 1696. [Written by Major
John Bernardiy in Newgate, after he had been there near
thirty-three Years a Prisoner, (though in the Historical Part
abridged) without any Allowance from the Goveromenti and
who could never be admitted to Bail^ or take his TriaLf]
Major John Ikmardf was the son of
Francis Bemanii, descended of an ancient
noble family, counts of the holy empire, ^c.
This Francis was sent to £n|;fland by the serene
rcpi^dio of Genoa, witii credentials from the
duke and jSfovcrnors of that sute, in the cha-
racter of agent, and aflerwards of tliat of resi-
dent, from 1651, until after the happy restora-
tion of kin^ Charles 2. We And, that on
Tuesday, Sent. 16, 1651, on a Re|M)rt from the-
Speaker, ** It was re6<dved by tlic parliament to
reoeire Francis Bernanli, aj«;ent Irom the com-
monw-ealth of Genua, aocordiog to the rule for
reoeivini^ agrents.'* And on the £2d of June,
1660, siffnior Francis Bernard! was appointed
resident tVom the said commonwealth to £iig-
laud, to congratulate his majesty on his happy
return to hi:; kincfdoms. But about two }'cars
al\eiwards the rcnullic sciit over another per-
son to succeed the said siLjnior Francis Ber-
nard! ; and as lie was born in Kn<;land, at the
time whtn his father count Fhilij) dc Bej-iiardi
was here also in riiibassy, and lovinj^thc ooim-
try as the place of his nativity, he livid and
died in this kin:;dr>ni, havini^f sjient near thirty I
thousand pounds in ho.«{)itality, and in indnt<ri{i^
a particular lastu in i^ardc-niii;,*-. hi iis'^- the mo.st
famous •^(-iitluriian in the kin^^dom ol' his time
for fine cjardcns. He live<l some tiin; near
Windsor, when tiist out (d'his ministry ; but i-e-
nioved alWrwards into Worcestrrsliire, to he
more remote and unknown. Iloi-e his son
* Johnson, in his Life of Pope, ha:^ jri-aiitied
his dtblike of kinif William by mention of »* liio
iwor conspirator who died lately" [nearly half
a evntury before the time when Johnson was
writiujr] "in prison, nfur a continement of
more than lo \ears wii!u>iit any cricie proved
aqTiinst him."* JJcrn:!ri!i Inm «n article in the
Bio&fraphia, and an account is ^\\ei\ of him in
the Gcntkinan's ^lag^azine for the year 1780.
f ** As many pc«>ple arc unacipiaintcd wiili
the reasons why those persons, Ruspec^ed of
beings con ceruetl in the a^ssssination-idot, lay so
hn\g in New^ie, without beii»f|^ either baded,
tried, or disi'liar^ed ; this account, wrote by
major Beniardi, (one of tliosc taken up and
confined) will exiiUiin the cause of it" Former
Edition.
him with great sererity ; sometin
him like a criminal in a little dark roov fir
trifles, allowing him only bread and «nl
beer ; and whilst so confined, nobody dunt r^
lieve him, or let him oat. Thus this John Ber-'
nardi was unhappily destined to confinemcBliB^
his youth by an unkind father, and in km oU'
age to uoderro the like rigid fate by wDpifSS-
deutod acU of parKatneut, wilhimt efer bsi^i
heard, or prof^l crimiDal by any court iatti
khigdom.
Acoordingly John ficmardi escaped fkm
his father in tlie year 1670, leaving hin ariNf
in his be«l ; and going out of hii gale, M
kneeled down on the ground, protestiaff ssl
pruying, that he might never return wbiMbii
fattier lived. He began his journey towsidi
Cuvculry, and, though pursued, had the good
luck to escai)e, and got to sir Clement Fisber^
scat at Packington, near that city, wliose bdy
was the heroic Mrs. Jane Lane, who prolectfd
and conducted king Charles 2, after the badr
of Worcester, (so otten mentioned in the bistarT
of those times) and who was very intimate wiui
voun'^- liernardi's father : But sir Clement aid
Fiis Ldy were gone to London two days beibit,
whither young Bemardi followed them. Os
hearing his case, they did not persuade bim ts
return ; but recommended him by letter is
captain Littleton Cient, a relation of her bdy-
shi|)*s, then in garrison at Fortsmoutb, asd
equipped him with neci'ssaries and money tor
his journey. On his arrival at I\>nsnioudl
the captain received him very obligmgly, sad
entered him in his own company, and tan^
him all the duty and exercise of a sokfair.
'rhis life young Hernardi was very tbnd if|
and passetl through various posts (in UoHsnd)
in the army ; for he had seven commissions ia
all, tivc of \«hich were conierrcd on him by hil
highness the prince of Orange, the sixth kj I^J.
Ntates- General and the prince of OrangTt ■■■
the seventh by king James 2, before therevt*
lotion. He attained the rank of a captain lA
H 7 years of age. At the siege of fifacstriehC ka
lost an eye, and was shot through one of ■>
anns, the bones of which were dMbed to
spUntors; aikr wiappiog hia arm in Ike if
Ml Account of the Assasiimaton Ploi^
A. D. 1696.
[7»
soit, he crowded \oxk to the breach, and
WB to the bottom amongst the dead, (the
1 beiojgf eofered if ith them ;) when a aol-
ider his eommand seeing him fall, jumped
im, took him up in his arms, and ran to
aches with him, where surgeons are al-
waitin^ on those occasions : and thus
Ills ensign finom Ueeding to death. The
of Orange hearing of it, immediately
ted Bemardt, and ordered him, with the
woanded offic^, to be conducted to
i-doc: bnt Bemairdi not being able to
! the jolting of the carriage, wa% laid on
>und, tHI his servant went to ^t men to
bira back to the hospital. When he was
well reoof ered, he went with his arm in
: to Utrecht: but not being able to do
Mr some time in his regiment, he made
iresses to a maiden lady, well bom and
HU near twice as oM as himself, he being
boni CO ; but her fortune being consider-
»r one in so low a post, he married her in
167r, and lired with her 11 years. In
when kiMT James 2 demanded the six
ents he had lent the Dntch, and they.re-
» return them, about sixty officers quitted
NT? ice ; amongst whom was captain Ber-
wbo thinking it his duty to obey the
ands of his prince, came to £ng1and[. I n
when the prince of Oran|^e landed in
nd, and succeeding in his enterprize,
James 3, after many difficulties and
ti riaqued by him, got privately away
2ochasierovertato France; when major-
il Kirk was sent by the prince of Orange
the regiments then in England, with an
■tioB \o be signed by all the officers, the
III of which were tD bind them under their
to stand by and defend the prince against
sons whatsoever^ and all the officers that
d to ngn it, were orilere<l to quit their
ands. Captain Bernardi refused to sign
iBWciation, and quitted his employ, went
nden, and solicited for the prmcc of
It's pass for himself and family, being six
nber, to {i;o out of the kingdom, the only
' he desired, which was granted biin ;
persons that went witliout a pass being in
r of their lives, or being plundered by the
Captain Bernardi got safe to Calain, and
inany English gentlemen arrived there
: him, some of whom were liis acquaint-
and in great distress for want of money
ir their charges to Paris, having bveu
ed of all tbcv bad by the tumults in Eng-
Bemvdi naving gut to the value of
100/. in cloaths, linen, tent and field cqui-
pawned them all to a broker for less thau
brir value, to assist some of those ^j^entle-
wboraby he lost his goods, not havuig an
tuily cfredeeroing them in time. Cap-
Scmardi arriving at St, Germaius, king
I t vM him, that he was just croing to
d« awl had tlien about 12,300 of his sub-
trrived at Ht. Germain's. Tlie French
;n«led orders for them to march to Brest,
( tha Itto carl of Do? cr was ordarcd to
meet and receive them : In the mean time king*
James went to Brest, where the French king
had ordered a large fleet, of about thirtv-five
nil, to receive him and his soldiers, and land
them in Ireland ; and in getting thither was the. .
fhmoos battle with admind Hmert in Bantry-
Bay . But king James's affiurs growing bad in
Ireland, he sent major Bernardi (made a major
in Ireland^ to Scotland, to accompany the earf
of Seefortn, then ifome to raise men for king
James : but receiving Uie news of king James%
being defeated at the battle of the Boyne, the
earl of Seafbrth dismissed his forces, and sent
them to their places of abode, without consult-
ing his. uncle, his officers, &c. who were
greatJy exasperated: whereiipon major Ber-
nardi desired to go to England, which major^
C^neral Bouchan approveo of, and sent for the
mini of GUincoe* to come with forty of hie
vassals to receive Bernardi at luvergan^, and to
conduct him to the braes of Monteth, which wae
performed in the night-time, for fear of the gar-
risons that lay ui the way.
Bernardi proceeded on his jonroey from the
braes of Monteth, under the conduct of a guide,
appointed him by colonel Graham, and arrivedt
at Edinburgh in the month of November 1601*
The rulers of that city having heard that some
gentlemen were come from ue highlands, or^
dered tlieir gates to be shut, and a general,
search to be made for them. Bernardi^s land-*
lord getting notice of it, conducted him out of
town, but half an hour before that order wae
pui in execution ; otherwise his journey at that,
time had terminated in tlic Tolbooth, or some
other prison in Edinburgh ; but escaping that,
and other dangers, he travelled on from thence
to Loudon, meeting witli no more difficulties at
that time, than those of a long winter journey.
But misfortunes way be compared with evil
habits, it being no easy task to ^t out of either,
when once unhappily fallen into the road of
them. And this |>roved to be Bemardi^s case :.
for, having finished his aifairs in London, by
dij»j)08ing of some effects he had left with it
friend when he went out of England, and by
selling his Scotch horses, he purposed to go
over into Flanders ; and meeting with two gen*
tlenien of his acf^uaintance ready to go out of
town, in order to make tlie same voyage, he
went with them to Colchester, where they were
recommended to a master of a ship, who was in
a short timdKo carry over a lady of great qua-
lity to Ostend ; but the wind happening to be
fixed in the east, the lady ordered her trunks to
be put on shiphnani, and then went to a gentle-
man's house about Ave miles ofl', charging the.
master to send for her as soon as the wind camo
* <*This Uird of Glencoe was a little while
afterwards, with his lady and vassals, barba-
rously munlered. See a 4to Pamphlet, intituled,
* Mur<ler will out.* The English |>arliament voted
this < a barbarous Massacre.' " Former Edit
For the Proceedings in the Parliament of Scot-
land respecting the Masaacrc of GkucoOi ae^
the preaent volume, poi^
763J
5 WILLIAM III. Proceeditigiagainst John Bemardi and xakerSf pfil
fair. Bernard! and liis two friends met with
two other ^tUlemen, who were strang^ers to
ihero, and uso unknown in the town, wbo were
come thither to get a passage over in the same
ship. They joined company, and lodg^ed all
together for some nifj^hts at Mr. Cook's, then
postmaster in Colchester ; but having notice of
«onie busy peo[i1e's inquiiiitivencss about them,
Ikrnardi and his two friends went to a gentle-
man's house, alMHit a mile out of the town, and
the other two gentlemen went to the master of
ilie ship's house. The second night afler Bcr-
nardi and his two friends went into tlie country,
intimation was given to them, that sir Isaac
Itebow, a justice of the prace, had iKsueil out
Lis warrant to apprehend them, and bring them
before him ; and tlie wind coming fair the
same night, they went directly to the master of
tlie ship's house, in order to go on board. The
master of tlic ship told them, that he had sent
judge, to appear in the court of King's-Bench
the then next term. Before the term two of
the five went off, either by composition or bilk-
ing their bail ; but Bernanli and bis two friend*
ap|>earcd, in hopes and expectatiiNi of being
discharged by the court : but the Attorney Ge-
neral opposM their being discharged, nuva^
instructions from the Secretary of 8tate so ta
do, al lodging that they were guilty of tretsoa.
The court ordered them into custody of a mo-
sengcr, where they remained confined nev
seven months. Bemardi having for many yean
been well known to my lord I&mney , who vm
the other princip^ Secretary of State, writ a
letter to his lordship : and, by his favour, tbey
all three were admitted to bail again upon the
first day of Michaelmas term, to appear oo tbe
last day of the same term. They apiiearedae*
cordingly ; but the Attorney General still went
on with his charge against tlicra, and affirmed
a messenger for the lady two hours bclbrc, and to the court, that the treasonable pajiera found
xix-.t<M.»A<i ii,... :» »t^ i.^..l.n/^»o. ..wi <.»..♦ ^..<> <%»' i in |],g lady's trunk, together with such otber
expected her in an hour more ; and sent one of
liis men to conduct them on shin-board, and
•aifl he would follow them, with the other two
gentlemen at his house, as soon as the lady
came. A message came from the lady, that
she could not possibly come before the next i\:iy
in the aflemoon. Bernardi and his two friends
continued on ship-board to avoid the justice's
The next day towards the evening,
warrant
came a /company of trziin-bands, with five hun-
dred mob, to the quay, where the ship lay dry,
at low water, about two miles from the town. ! down, and to attend and bring them back agiio.
This captain of the train-bands commanded his | The day before the assizes began, thev went
men to go on board, and to bring all the persons down with thfir counsel, sir Creswell LeviDi,
evidence as would be produced in Essex, was
sufficient to bring them to their trial ; and
therefore he inov^ tlie court to bind them over
to Chelmsford assizes, and they were botiod
over accordingly, twelve of their friends giiio;
500/. security c*ach fur tlieir appearance ; asd
ill order to tlieir defence, thev applied them-
selves to four eminent counsel in London, aid
gave them broviates and large fees to pleid
their cause, and provided coaches to carry them
they found in tlie sliip to liini. These unlors
were obeyed ; and Btn'nnrdi, and the two fjcn-
tlemen with him, were seized nud carrie.t di-
rectly to Colcliestrr gaol, w here the otiier two
centlemen and the nraslcr of the sliip had be-
fore been made prisoners. The lady had set
out ill order to go on board, but being told what
had hnpiiened, she returned back, and ne%er
appeared ; u))on uiiich six justices assembled
sir Bartholomew Shower, counsellor liolben,
and another whose name the author halh for-
^(»t. The six prosecuiing jusiiecs were g<il
thci-e before thcni, with their suhpa»natd wit-
nesses, who were all heard by the grand jury
the next day, upon an indictment prefcrrra
against thcni ; but for want of suffieient evi-
dence to find the hill, the prantl jury rejected
it, and j^avcin tlieir verdict I'lnonwms; uhtre-
to break o|)en and search her trunks, exposing I upt)n they were diseharired in court by procla-
even her foul linen to the view of hundreds of. niation ; and the ^iix justices gallo|)eff home to
people ; but their worships could not discover : ('(dehester in all haste, as soon as they heard
who she was, neither had Bernanli or any of! that the grand jury had thrown out the bill of
tlie other four gentlemen the least know ledge I indietiiKrnt. i'his prosecution, umler close
of her, but by name and title, which was the
countess of Errol ; having ne^er seen her.
When the six wise men had finished their
search of the lady's goods, they strictly exa-
mined and searchetl their five prisoners sepa-
rately, and charged them with having treason-
able papers and pamphlets, thoui^li no such
were found about them, neither had tluy any ;
but some such things were found amongst the
lady's goods. These jnstiees sent an acconnt
of their proceedings to the earl of Nottingham,
then secretary of sUite, anil thereby repre-
sented major iSernardi and the other f<mr gen-
tlemen to be nreompliees with the said lady,
and committed them to the county gaol at
Chelmsford % from hence they writ to their
friends, nnd got themselves removed by Ha-
lirss Corpus to London, and gave bail before a
eonlincinent sometimes, and under IkiII at other
times, continued al»out a year and a half, wliicb
nut major Bernardi to the expence of some
hundreds of pounds, and his two fellow suficrent
to as much.
Major Bernardi, soon after he wasdischarj^,
went over to Holland with the earl of Notting-
ham's pass, and returned again within the tiiue
limited hy the pass, and appeared at the secre-
tary's olfice as he was enjoined, that my lord
mit^ht know he had not exeeeiled the lime pre-
scribed him to return in ; and by so doing be
obtained some favoui's from his lordship after-
wards. Not long after his return from Flan-
ders, he jndgetl it to suit best with his circuiB*
stances at that time to retire into the countrTv
to be out of harm's way, and less liable U»
company and cxpence \ tor his five buiHM
5]
QH Account of the Assassinaihn Plot.
A.D. 1696.
[768
!es jonroey from tbe hitrhlands of Scotland
London, with the undeserved imprisonment
1 prosecution which he suffered by the offi-
us justices, had very much impaired hissub-
Dce. And althou}(h nothinsr less than his
was aimed at by tlie Essex justices, yet his
feriufrs then were but flea- bites, in compari-
I to the unprecedented hardships laid upon
D soon after. He returned from a pleasant
intrv-hnuse near Brentford, where he had
ided alNUit a year and a half, and where he
iployed much of his time, and some expcoce,
impro^ing^ and beautifying the gardens
*re ; but the premises ueing made over to
ctor Ward, prebend of Salisbury, in part of
» laily's |K>rtion, tiernardi was ublige<l to cjuit
e Imuse on that account, and came to London
Christmas 1695 : a fatal remove from a ouiet
untry- abode to a sea of troubles, which in
"eat measure is to be imputcti to his misfor-
ne iu meeting with one captain Ilookwood by
xidcnt at a Uvcrn ! Captain iUokwoofI was
ten huely come from France, and had been an
aiaaiDtance of Bemardi*s of about seven years
iiading, though they had not seen each other
ir some years then last past. Kookwood
nokly told Bernanli, that he was quite tired
lit in foreign service, that his brother had a
jDoJ estate, and interest enough to obtain leave-
whim to come home ; and that he was come
»er tothat end, but kept himself a little private,
intil hii brother bad gained him a licence to
ip|iear ; it being theu made criminal by a law,
lor luy subject to come from FranceVithout
leave from the government. Witliin two
uiODtbs or thereabouts after Bcmardi's arrival
A town, a horrid conspiracy to assassinate and
■ounier hit late majesty king William was
■Inoovered, and many proclamations came
Ml offering 1,000/. reward for securing each
Ms inserlCM in those proclamations. Several
Hre taken up on the nrst, and more were ap*
Ijrebeuded daily upon the repeated proclama-
iiflii. Captain R(»okwood came to Bemardi
A i Satunlay, soon after the horrid plot broke
Ml, and his countenance and behaviour seem-
ed to discover him to be under some disturb-
•Ke of mind. Bemardi thereupon asked him,
if any evil liad happened to him ? To which
be tn^wered, No ; but said, that if any body
tbould be so malicious as to give information
»f his being come over at that time, he should
certainly be taken up. But it seems bis name
*tt in m iiroclamation, which came out upon
tint very day, to seize him as one of th(»se who
"We concerned in the said assassination -plot,
^beogh Bemardi had not then heard any thing
of tae matter, and Uookwood concealed it from
wttf intending, as appeared by his behaviour
vicrwards, lo spend that evening with Ber-
■evdii hut Bemardi told him, that he was
*f^ a promise and engagement to sup that
yy at a Uvera on Tower-hill. Captain
■••kwood thereupon earnestly replied, that if
"e meHing there was not uiion private busi-
■>», be desired he might be one of the com-
f^l i Willi wbiofa Bcnacdi readily complied,
and he and Rookwood, with other company,
supped there accordingly ; and making it too
late to go home to their lodgings, Rookwood
and Bernanli stayed all night at the tavern, und
went to bed together there. The next morning,
being tSunday, some constables and other armed
men came mto tiie house, and entered the
room where Bemardi and Rookwood were in
bed, and producing their warrant to search for
and seize them, they demanded submission
thereto. Bemardi and Rookwofiil readily
yielded to their authority, not makin<|^ the least
resistance, and got up and dressed themselves
as soou as possibly they could ; but the consta-
bles' orders being to c^rry them, and nil the
people belonging to the tavern before the re-
corder of Loudon, who was then gone to
church, they were obliged to remain in tlie ta-
vern until noon, guarded by twenty men. This
delay gave Bernardi time and opportunity to
make some imjuiry into the cause of all that
hurly-burly. The* senior constable told him,
that a neighbour's senaut-maid came to the
tavern the night before, and seeing some gen-
tlemen at suiiper, she asked a drawer who they
were ? Anil he making her a surly answer,
she went with her brother, a joumeyman shoe-
maker, directly to the recorder, and gave inlbr-
mution, tliatsome evil-minded men were at the
tavern, and that the people of the hoiuie refused
to discover who they were ; and therefore it
was reasonable to believe, that they might be
such persons as the government then sought
for, by divo-s proclamations. It was then near
tlie latter end of February, and the bcforc-
menfioncd horrid conspiracy was discovered
about the middle of the same month. The
constables having notice of the recorder's beinjjr
at home, they carried Bemardi and Rookwood^
with all the tavern family, before him, who ex-
amined tliem very strictly and separately*, .and
told them that he could do no less than commit
them at that disturbed time, though he found
no other cause than suspicion for so doing ;
and therefore, as a favour, would send them to
tbe two Compters, and not to Newgate, that
they might with less diflictdty and expenci: ob-
tain tlieir liberty, when the storm %i as blown
over. He ordered the tavem fiimily to give
bail the next day. Bernardi and ftookwiNNl
remained quiet under their respective and dif-
ferent conhnements near a month, without any
communication with each other, either by letter
or mesmge, in all that time. Captain Char-
nock, King, and Keys, were taken up on the
first proclamation, which came forth on or
about the 3Sfl day of Febmary ; and were tried
and convicted of high -treason March 11, 1695*
6, and were all three executed on the l&th.
Upon the 93d of March came forth another
proclamation, in which Bernanli*s name was
inserted, and a reward of 1,000/. was thereby
oflf?rcd to apprehend him. Captain Rookwood
re|>08ing an entire confidence in the friendsbin
of one Mr. George Harris, intrusted him with
the knowledge of his and Bcmardi*s beiuff
prisoner^ in the compters, as before ce\iVi£,
I
I
76T]
Ami litre U w to be otnerred, that alUioog^b
c»ptftiii Rookwood was m a pn>clAination,
vaicli came forth but the day befoi-e he attil
BeroAfiii kvenl together to theiivern onTuwirr-
hillf Ma4 of which, wtthout doubt, he had lieeo
»|ifHrtsefJ ai Uie time of his ft list coming^ tu Bet-
iMU'Ui, who then knew nothioir of tbe mailer ;
grel c44itiAm Hook wood thoag^bt lit to conceal
the same fmm the knowledge of BeroiLrdifts
loB^ as he cotild, and jud^ii|^ it otindiidre to
Itta aafety, he chanq^ed bis Dame^ aud pii>Taikd
011 Ber nanb, by earliest intrealy, to do tbe hke ;
Imt wilbout aeqiiaintiiig hioi with tlie proctama*
tjoo, as a reason for bis so duing^. CaptaiR
HookHOod ^vaa often vihiied iu the compter by
hta minion (be said Mr. llams to ^hom he
liatl e«mimunicatct1 iltese particulars : And as
aooa a>t U)e proclatnaiinn of tbe 23d of March
«amo fortb, wbicb was the iast that waji pub-
lished to apprebeofi conspirators, and was pnb-
llshed at some weeks distance from tlie rest,
Harris went and discovered captain Rook wood
and Btmanli for the reward, and ibey wei"e
t«keti out of the coctiptera by a detaehmetu of
tbe guards, in the Dig'bliif tbe S4th of the name
iBOuth of March, and were carried to (he 'VWi-
yttitd ppard, and eiBmtned by the lords of tlie
council tbe nejctday, ami commiUed Mui*cli 35,
1696, cUise prisoners tu Newgale, bmded with
Jisaf y imus, and put into separate, dismal, dark
and altakiug ipartments, not being atlovred to
affteak to each other from the time of their lietn^
lakci»outof the two compters. BemanU did
isever see Rook wood afterwards, who was soon
after trt^ and condemnet), and was executed
at Tyb«rti with Cranboi-ue dud Lowtck^ on ilie
3dth day of ApKl followiug.
It may be here demanded, how came Ber-
oardi not to uoderi^ tbe like hte with Rook-
ifvod ? To which he answers, that it was not
by favour, bat for »vant of evidence to haoj^
Hemardi ; though k> have takeu awuy liis lite
at that tiicewiUioul |>roaf, had beau tender
mercy, compared to the ornelty of Iha aatere
and \(m^ coufinemeot he has since endarcd.
None of tbe dtsceverers of tl»e said horrid plot,
who were ubonl ten or twelfc in number, ever
act much ah mentioned Bemardi^s uatne, iuiless
Harris migrht make some mention of him, w bo
bad no other ktmw ledge of him, but by seeing
him atnl his fritnid iiookwo<>d sometimes to§fe-
ther ; in .which ease he mig-ht speak titith with
respect to Bernanli, but no fnrthcr. Harris's
riew wss th«^ 3,000^. reward, which he receited,
aad which must no doubt with bim have been a
consideration hijj^bU' preferabte to captain Rook*
irood*s friendship, tbousrb the captam had been
alrtie friend to Harris mr many years, and ac^
corditagtoaU acootmls, as kind* to [urn as a
mMl father could aoaiibly be to a betored son.
Caf>tain Hnokwood was prored, by one of tbe
chief discoverers of tlie conspiracy^ to tiave
been one night in their assembly ami enoncils,
and then unhappily to bare giren his co»s«fnt
to tkedeaigned blooidy act apiinst kiti^r WiDinm,
which CQSi him bis lile. Had or could Der-
aardi at tbal liitte iiava keen Af9/s%n into then-
ruf-il
8 WILLIAM III. ProetiMngi mganH John BemartB and ptien, pB
file and pern iciooa coiWKfla, iHtb f wipict te ihit i
horrid and m^H Mktmmmwklm dai^»^ hia
and loiifr aefTice naal iMriraa^ij ban
dered bim a welcetne g'oest animi|^ tike
Bpirators, and conseciuentty be uosl have ikii
captain Hcmkwotxl's fate, wiilioul aaj
means of eficapiag ii, Thoat wlla
death upon the sccvtmt of
conspiracy, were ei|rht in nu tuber, _
ea|ilain ^'harnock, Kiii^ aad Keyti
Lowick, captain Rookwood. and I'raji
and sir William Perkins and sir John
^r John Fen wick satfiered faratHytber
oftreason, as shall bereiaaAerba psHif-ubrlyl
related and expbined. Tbe ame belinrt-
tioned beiii|r executed, there still rematnc^l
dose prisooeri in Newi^ate upon iltat
but cTidenGe kein^ warned to conirMA
oftbeoi, the Habeas Cor pits net woa
tor nine months, to prevetit tlkcfii frmn g^\
their lilieity by law ; snd this was dime
view of tin Jiikg out evidence a^ainsi thetii
1 hat lime. The suspension S[ the acl
scveml of Ihettaatered their prayer at
neiEt sessions and torm, to he iried ami
to bait. The first wImi entered i»uch thevr
were tliree gisnt|eiin;n h ho were bmtbera,
related to the earl of Balli, capt^o 8tnw,
tain Wslbank, and Mr. Blsdcbitm, ai»d
others, and they vvfre all Uiiled oot andij
chargtfd, tbou^b tbt'V *vere taken by iiri.
lion, apd a thousand pouudsf rewara wj
tor eacit of the first five peraoot* The
iu^ ndmber in coniaeaeat tbeni Wf
Bifmurdi, csplnin f'ounler, Mr. C
Meldrum, and Chambers ; and thry
locked u|> close in separate dissnal parta
^ol, and most of them unknown toaach
Gouki nether comimaiioate or ik> soy thbf
thamaelYes in ontrr to their Itbi^rt v ,' nor eeirtf
know wlial had been itone tor others ; But Ibf
good success of those before mentioned oumI
their IfWnds abroad oCcioosly to rni«<r pnryfii
tor tWm at the second sessMoa atW tbe HiMa
Cor(»as act came in three; wher«?\i|»oa iktf
were all of them taken out of their cCoae bolei^
and were carried to IlieOtd-Bailry, in oi
be tried or bailed. Mr. Conatauifoe
(who was uAerwards lord chancelkvr «kf li
was appdntcd their oounsd to mova fbr iMl^
atid asked Bemardif if sny apphcation bad bsia
made to the solicitoi^ of the Ireaauqp f B«r*
nardi answered, ao ; allfH%fa|f, that as fbrftf
was no hiw to keep tkem any lamgti eonlinMl|
Ihctr friends I udgred it ncedlaas to apply to sat
body ^ favour ; little dreamiRef thai i
parbamcnt would be aktaMMOtn aai
continne their furthsr aaafluauni tit| a
never known or heard of bafttre. At
they were produced in eoart tonrder ti»
or bailed, the solicitor of the treasarjr stnod^l
and whispere<l the jadf es npau the beoob t an I
tliou^Hi that sessioms beiur a acMiiMia of mI* |
delivery, conld act lawfutly ba deter— ^'
without etlhcf^ ^'ytttfT ^^ badtng^ tbeae
prisoners, the jodges being; obliged hf
deliver the gaol ; yat ujkiu the wi ^
769]
on Acarnni of Hie AstasmaHon Plot.
A.D. 169^.
tioQ of tbe solicitor of Uie treasury, the judges
•djouroed the court fur a fortni^dt, and iHiiiie-
OUtely «frer a biJI was biQU^Iil into paHiarnear j
and an act pas^t'd within that tiiDc to cuuHne
them for a twelvetnonthT on u supposed proha-
biUty ^ill of finding- oat &orac> evidence a^minst
tfaem ia that tirue.* Hut bow came it tliat the
aKOkc prudwrit precantioa for the tiafety of the
tltCt and to brings vile conspirators to condry^n
iQishment, i^-asDOt made use of against tho5e
at prayed their trial at the sessiotis btibre,
mud thenHiy obtained their discbarge, and some
«vihorti rtei'e cotnmitled upon tbe oath of one
Hi«ss? Jt will not sure be difficult to solve
s i)ii«stion. Mr. Sohcitor of the treasury
nettber spoke idond nor sodly ag^aioat tliein ;
and why be n^asso good-nalured may be easily
undeif^ood, havint]^ no doubt, been properly
Jkt J v\iih by thera j irhtch was a very unfbrlti-
41 minion in tbe comloft of Bernard i and
I fetlow sufferers, in not properly bespeaking^
Solicitor's favour for them. Anil here a
' singular and deplorable passag^e happened^
itingf to Mr, Blackburn, who beiug^ bailed
aod discharged, with those who had first
ered their prayers to be tried, was taken up
an %ipon t!ie same account, aud, without
My fr<*«h charge or tnfbn nation a<^Kmst biin,
put into ihe custody of a messenger, at the time
wlien tbe House of Commons were passing tbe
hill Ibr coiitinutng tbe conUoement of the fire
Qtioued state- prisoners; and tbe bill
led up to the House of Lords for their
tnce thereto, Mr. BUckburn was added
iid fatal uumlicr in ih« lords house, by
FamendnienL to tbe bill, and sent again to
il<?, Mr. ChnoiFierSi another of the last-
stiotied state -prisoners, who bad also en>
' bis prayer at tbe term with tbe first to be
By an act B W, 3. ** to aitaim such of the
persouM cDooerned in tbe bte bnrrid conspiracy
*^ '^~' uuale bis majesty *(» royal person who are
I jiurticc, unkiis Uiey rendtr themseUes
cc, and tor cnnlimiiay st>v€r^l <itbers
ke^aidconspiratorK in custody ;'' in the last
' of which are these words : *♦ And wher&-
> per^ns bei-eafter nam^^Jviz. Coua-
Jobu Uenuirdi, Robert Cassels, Itobert
ijflrnm^ James Chumbers^ ami Rolierl Black-
^m, bavL* been committed, and are sidl in cus*
lody I a Ncw^tv, for the said conspiracy and
kti: fie it enacted by tbe authorUy ^fore-
ibat the said ^Counier, Jolm Ber*
pih, Robert CasseU, Robert Meklrum, James
abers, and Kobcit Btarkburn, artd such
^whci shall hereafter render them-
^pf «bi«ll be apprehemled, ami ajjrsin.*it
fe shall beevtdenise upon oath ol' their
NiciirQed iu tbe ^^aiti barbarous anil
ta^ of assassinatiii^ tbe persuu of
• imgciity, shali be detained and kepi
ily, withoitl bait or mmnprize, uiitilthc
m January I69T, iinh^jw th<*Y shall br
'tiled by ord^irof t .ued by
fnij«sly'« must i ptivy-
VOL, XIII.
tried or hailed, was brought up to tlie court of
KiDgf*8- bench by Habeas. Corpus, in order to be
haded ; but one of his bail rmiaingf to sweftt
him^lf worth MH)/., Cliambers was rctnunded
back to Newjj-aie, where he remained with the
restf under the parliament's confinement, till
released by death. The first act expirini^,
second (9 W. 5, c. 4.) was soon passed to cod
tjoue them in prison another year ; unless, a_
in the finmer act, they should scKiner be bailed!
or discharged hy order of council, sif^^oed by siac
privy- counseltors. Aod at the end thereof, all
prospectof finding outany evidence Dj^inst ibetn
se<?minsr ^o be entirely vanished, a thiril art (lo
and 11 W. 3.C. 13.) was passed, con I tri"" •! ri
during the pleasure of his late mi x
William. And even some of the ui- ._ jf
that parliament afterwards told Bernardi, qihI]
others of the nunrther so miscraldy cohliue(f,f
that the very iulcniion of that act was pureljrl
to lay them under dutiful oMii;aLions to kin|pl
William for their liberty, and tliereby also at |
the same time to pny bis niaJMty a com pit*
ment ; and that the members did not in thft j
l«ast doubt of his mafesty^ clemency to tbem, i
but that in a little time be would* set tbendi
free. K.ini^' William was afterwards ac» f
c^>rdin""ly applied to in their favour, n<n loir^ |
before hfs death, by the late eail of Bnrling^tO!) ;
and hihi majr sty was graciously pleojicil to nrn* I
inise his lord:>hip, that he would deliver Inein ]
in a short lime. But the kin|j*s illness an^
death following soon afterwards, aod before i
any order was given for their fljstbarg-e, tbe i
f^ood and gracious design oC his majesty for *
the deliverance of these unhappy men (if be
really iotende*! it) was most uidortunately frus-
trated and prevented. The act fiir tlten* con*
fineraenf, by tlife demise of king William, be-
ing determined, (as they were advised) they
entered their prayer at the next sessions to be
tried or bailed, but were opposeil by the at-
torney-gene »*a1, and neither was granted. Af-
lerwanls another act of parliament (1 Ann. st.
1. 0. 29,) was procured to be passed, confinin^f
them during tbe pleasure of queen Anne. Her
majesty was graciously pleased to release cap*
tain Counter, the first named in the said act«
of confinement. Major Bernard i thereupon
petitioned the queen tin' his liberty, and pre-
vailed upon his £frace the late duke of Buck*
ingham, then lord president of the council, to
deliver his petition to her majesty ; which was
so done at tlie intercession of ber grace tho
duchess id' Buckiugbani bis consort, and ber
lady mother the late countess of Dorchester,
both of them being so very good as strenuottsly
to move bis grace to undtitake it, uiiging that
such acts of compassion and charity were ge-
nerous and excellent in persons of quality, and
w ell becoming a good ami gj-cat mim in hrt;h
slfttion. The queen was grucionsly |»leased,
upon tbe duLe's motion, lo oonsent to Ber*
nai^i's liberty ; but his ^^ice afterwards cait*
tioiislj^ laying the j)et]tiou liefoi-e the privy
ceitncil, it wan by them referred to sir Ed-
ward Ntrrth^y;, tliftllietiftUonTey-genenil. wbicK
3D
TH] 8 WILLIAM IIL Proceedings against John Bernardi and others^ [778
might give liim an opportunity to obstruct the
•queen's intended cicmeDcy, for politic or other
reasons. U|H)n this reference, it took up some
time and expence to attend and solicit the dis-
patch of Mr. Attorney's report, which, when
made, nevertheless appeared to be in Ber-
nardi's favour. The lord president called (or
the report, in un!er to have the sentiments of
all the lords in council, how and in what
muuner Bernardi should be delivered and dis-
chargk^ : but the late earl of Oxford, then
lord treasurer, at the same time t(M>k the op-
portunity to move that Mr. Blackburn mignt
have his liberty as well us livrnanli ; and
thereupon his grace the president, and his
lonlship the treasurer, differed in council about
the respective discharges of Bernardi and
Blackburn, whorcby both their pretensions to
their Jibtrty, though so near succeeding (to
all appearJiice) dro[>peil, and never could be
revived agtiiu t j the ijueen's death. How far
those tuo great stalesmeu were sincere in
iittempting the liberty of Bernardi and Black-
burn, or either of them, or played booty, God
alone knows: the wiiulings, turnings, and la-
byrinths of poUliciaiis not being easily traced
and found out by a well-meaning, honest man.
The earl of OxPoiil afterwards was often ap-
plied to in their behalf, and, sometimes by per-
sons of greater honour and quality than him-
self; and his lordship made more promises
than he had buttons unon his coat, waistcoat,
and cloak, an<l some of them upon his honour,
thatthese prisoners should soon beset at liberty,
if they would byt bave a little more pulicnre ;
but all his loiil.sh!i»'s promises were by him
either fon^ot, or, lljroiij;U his most refined po-
licy, neglected to be j.erlonned.
By the dcinisr of I he queen they hud again
liberty, by viituf of the Habeas Corpus
act, to pray i'or tliiir trial or to be bailed ;
and in ortlor thereunto they entered their
prayer acc»inli:i,ny, ul the ilr^t Old Bailey
scssiMus, and \U'rc by that court referred. to
i\Iiehaehnn.j Wr\\\ {\}\\i\\\\\\<^. They retain-
4id thrie or loui* euiiiieiit coiuisel at law, and
feeil tli( Ul to uw.M- nint plead fur them. Seven
or eight molions v. i re made tluit term, at dif-
ferent tinie.N, in th.ir luliuli', and several rules
of court were olitaiue«l at y:reat expence, l)e-
fore they could li: ing the then attoniey-general,
sir Edward Nortiiey, to appear and di'lend their
motions. At last tlie then lord chief justice
Parker told serjeiiiit >\ ebb, (one of the' coun-
sel for the prisoners) that the court consented
It) their being brought to the bar by Habeas
Corpus on the Moiiilay following, l»eing the
last day of the term, in order to admit lljeui to
bail, bidding the Serjeant in the mean time to
direct his clients to give in the names of such
substantial men as they intended to bring into
court to bail them. This glimmering favour
proved oiify as a little enliv^hteuing before death,
as Mill appear by the setpiei. The prisonei's
were aeeo: dinivly brought up by their ki>epers
from Newgale lo tbe court of Kujg's-lwnch,
the last day of the term, when the chief jus-
tice before -named, having notice of their be-
ing there, was pleased to ask serJeaDt Webb,
their counsel, if they had bail ready in court?
And being answered in the affirmatife, bit
lordship was pleased to reply, that wonders wert
to be done presently ; wonders indeed, and sucb
as were never heard of before ! The prisonert
were called and brought into court, and there-
upon the same gentleman made an liarangue
against tliem of above an hour long : and al-
though towards the end of his very bitter and
invective speech againstthose helpless wretches,
who were obliged to receive all his tire and
bulls, he was so ingenuous as to declare, that
he had never heardof any evidcuoe cliaigii^
them with the crime they were committed fiv;
yet he was pleased also to declare, that he was
very well satisfied of their guilt, by the pnh
ceeding of the first parliament against theu,
and wouhl therefore remand them hack to New-
gate, which accordingly he did. At the meetiar
of the next parliament matters were so ordeifd,
that another act (1 Geo. 1, st 2, c. 7,) waspn-
pare«l and procured to pass both houses very a-
pediliously, to continue them in prison duiiugbii
late majesty king George's pleasure. If it vM
intended stiU to debar these unhappy men fron
the benefit of the law, it would have been cbari^
to have told them so, when they entered tbor
prayer to take their trial or be bailed at Ike
demise of queen Anne, and not to have drilled
them on with hopes of relief all that long tern,
when none was intended them ; impovsrifhiBp
them at the same time by great expence m
counsel's fees, and otherwise, iu attempting it,
to the reducing and bringing them into a starr-
ing condition iu gaol. Several petitions wert
aften^ards delivered to his iatc majesi)- kin;
George in the name and behalf of tbcse
wretches, imploring his sovereign compassion,
and setting forth, as an instance of his grtrat
merc3% upon another occasion, his pardoning
many condemned for actual treason a^ut
his majesty's jiersen ; whereas these hail been
long miserably confine<l as prisoners of state,
purely upon bare suspicion only of being con-
cerned iu a conspiracy against a deceased mo-
narch, of which tlie least proof could never be
made out against them ; yet their petitions
were. not minded. The court of England balk
the least regard to |»etitions of any court ii
Europe, and so it hath been for many return
past ; which neglect is chiefly to be imputed ta
the prime ministers and other great men : fail
majesty having a petition put into his hand, gis
nerally gives it to one of the lords near bim,
where it is too often thrown aside, and never
heard of more. In most other courts partiOH
lar days are appointed to read petitioiu», ia-
serting in the margin of each petition, to tht
efl'eet following, \i/.. Consented to, or not «••
senteil to ; ami an otKce is. settled wliercia H
lodge petitions, m here the deliverers take tbea
out, and by that means all petitioners laiil
know how iar they are, or are not, to prefti
upon such their submissive aud
application.
CH Account of the Assassination Plot.
demise of his late majesty king
i first, which happened at Hanover,
t the 11th day of June, 1727, Ber-
his two fellow -sufferers, being all
rs of the said miserable state-monu-
again liberty^ by law to pray for a
le admitted to bail ; whereu|)Oo Ber-
he IGth day of June, 1727, moved
of King^s- bench by his counsel for
Corpus to brinff him up, in order to
Jailed, or discharged, acoordinf]^ to
1 counsel at the same time apprinng'
that Bernardi had, so long ago as the
f March, 1696, been committed to
y the late duke of Shrewsbury, then
of state, on suspicion of being con-
. horrid conspiracy to assassinate his
y king William 3, but without any
e not being so much as the oath of
witness made against him, nor was
1 in his commitment that he was
)on oath ; and no proof at any time
ever appearing against him, to in-
ringing him to a trial, several acts of
had been made to keep him in pri-
Y the last of them he was confined
: pleasure of his said late majesty
ge 1, by whose decease Bernardi
e intituled to his liberty, there beiig
n in force to detain him in prison ;
jrt then made a rule for such Habeas
cordingtv ; though the motion was
pposed by the attorney- general sir
rke, who, though a young nuin, had
I quickly to that great post in the
;h the early favour and countenance
lire- mentioned chief justice, and his
Dg merit, built upon so nursing and
}us a foundation. Mr. Attorney-
ut sure he was only in jest) objected
ar to the motion as not proper or re-
lout producing the original commit-
eh, for want ot due care in keeping
ring the records of Newgratc, after
if dl years, and the change of the
epen witliin that time, was not then
1 ; but that weighty objection was
I by the court Afterwards sir John
Aland, then one of the judges of the
Dg's-bench, and now one of the judges
esty's court of Common- pleas, de-
Dourt, that the same matter had been
m the demise of queen Anne, when
justice Parker before-mentioned de-
opinion, that the court had a discre-
wer either to bail or discharce the pri-
n bnmght up to the court of King^s-
Hibeas Corpus in the like case ; } et
M, at the tame time, he remanded
I to Newffate. Bernardi's counsel
waved the Habeas Corpus, and desir-
DOtfaiog by his motion, as conceiving
sei^Bly certain, (which Bernardi was
Mtr) and the aueeess doubtful ; and
e jo4rM commissions were not then
vbo or themselvea could not subsist
m mt nontht from bis present ma-
A. D. 1696. [774
jesty's accession to the crown. It was tliet^-
fore thought expedient and more adviseable for
Bernardi to seek relief by petitioning the king
for his royal favour and clemency, than to
make any farther trial to be discharged or
bailed by the court of King's-bench. A bill,
was soon after brought into parliament, and
speedily passed into an act (1 Geo. S, st. 1,
c. 4,) to continue his imprisonment, with his
other two fellow-sufferers, Blackburn and CaS'
sels, during his present majesty's pleasure. A
printed Case was deliv^ered to all the lonis and*
commons against the bill, while the same was
under the consideration of the two houses, as i»-
hereinafter set forth. And Bernardi preferred;
several Petitions to the king and queen, both
before and afler the said last- mentioned act
passed^; the tenor or puriiopt of which Case and-
Petitions are as foUoweth, \iz^
The most sad and deplorable Case of Robert.
Blackburn, John Bernardi, and Robert
Cassels, humbl;^ offered against the Bill
now depending in Parliament Cor conti-
nuing tncir Imprisonment, nf)cr a Con-
finement worse than Death by them al-
ready undergone, of upwards of one-and-
thirty Years in Newgate.
" In March and April 1696, they were com-
mitted : the crime they were charged with in
their respective commitments was high-treasooy
in conspiring the murder and assassination of
his late majesty king William 3, but without
proof, there being not so much as the oath of
one single witness made against any of them,
nor is it specified in their commitments, that
they were charged upon oath : that no proof
appearing against them whereby to bring them
to a triul, several acts of parliament had been
made to keep them in prison, tlie last of which
lefl them to his late majesty's pleasure, and
then by the demise of the kmg they were be-
come mtituled to ibeir liberty : that the |ier-
sons charged with this most horrid and de-
testable crime were originally six, namely,
James Counter, Rob. Meldnim, James Cham-
bers, Robert Blackburn, John Bernardi, and
Robert Cassels : (/ouuter was set at liberty by
queen Anne, and Meidruui and Chambers die«l
in prison ; so that there were then remaining
only the last three of these miserable, wretcbi-il
and most unfortunate prisoners, who solemnly
disclaim, ami from their liearts ever did nnd do
abhor and detest, the said villainous crime so
laid to their charge as afiiresaid : and ultbough
their number was then rcduceil to three as be-
fore-mentioned, yet nevertheless by tliat bill
they were intended to be further conliiied : that
they were reduced to extreme miseries by their
said tedious confinement of onc-and-tbirty
years and upwards, in a melancholy, dismal,
and loathsome gaol, and by tlieir great age, in-
firmity, and poverty; and though they had
been confined close prisoners of suite in New-
gate for upwards of onc-and- thirty years as
aforesaid, yet they bad never bad one penny
allowance from the government*^
4
775] 8 WILLIAM III. ProeeeeHngs against John Bmmrdi aiid oihert^ [771
** Wherefore, and in regard to the unprece-
«)eiited and unparalleled hardships of their case,
it was humbly hoped the said bill should not
pass. (Subscribed) Robert Blackborn.
** Newflrate, John Bernarim.
July 5, 1727." Robert Cassels."
Copies of comnaitinents follow, whereby it
•plainly appears that none of the said three pri-
soners were committed upon oath.
" These are, in his majesty's name, to au-<
tborise and require you to receive into your
custody the body of Bemardi, herewith
sent you for high treason, in conspiring the
assassination and murder of the kinff ; ami you
are to keep him safe until he vhali be delivered
by due course of law ; and for so doing this
ahall he vour warrant. Giren at the court at
Whitehall, the 25th of March, 1696.
<> Shrewsbury."
'* To the Keeper of Newgate,
or his Deputy."
N. B. The commitments of Mr. Blackburn
and Cassels are to the same effect with Ber-
uardi's.
None .of the said six prisoners were com-
mitted u|ion any oath, except Counter, who was
dliar)((M upon the oath of one witness, as may
appear by the following true copy of his com-
mitment :
<« Middlesex.
" Receive into your custody the body of
John alias Jame*; Gunter, alias Counter, alias
Rumsey, herewith sent you, chartred before
mo, u|^^ the oath of Gcot-^o Harris, t;ent. for
high treason, in co:iK|)iring to assa;;sinatp his
majesty, and to procure an invasion oi' this
kinirdoni b^' the French, being the person men-
tioned in his majesty *s proclaniatiun, and there
ca'.led Counter, alias Runisey ; and in order to
u further exriininalion, you are him safely to
keep, until lie shall be disehavged by due course
or:a\^'; and for so doing this shall be your
>%iirriint. Given under my hand and seal, this
!l9ih (lay ol' May, 160{i.
" S. LoTELL, Hocorder.*'
A Ccpy of the Keepei^s Ceutificaie, setting
I'orili that none of the said three prisoiient
wire coinitiJLled upon oi^th ; which Cer-
tificate was iinoexed to one of Bernard i's
l\'titiuus to the king :
" V»|j; i-cis .'f.nits (.luntcr, alias Counter,
all :1b Um.iiVjv. .Jani«'s Chunibtrs, I{«b«.rt Mei-
drum, K>ti:i;i't i!i;M*ki»iini, Kobort ('uNsels, and
John Ucriiiiriii. wt^v lo-.nuiilied to Newgilein
loP''*, furcon'^iMrini^ to assassinate his lale lua- i
jcsty kiii;^ Wililaiii the 3;l, as appetus by co-
jitcs oi' tlicir SI > oral coiuniiimeius, sij^T'ied by
.lusn.a i'\-II, Pit' keep;T of Ne-.vi,ate, anr' b>
hih In^atl Um'.jKi V Iio(!(.oliiim itouse, Mhicli I
iKivespMi ami c-jainlnel ; I hereby certily, that
none of the lu'ItM\.-nuinrd fk»i*sons are ciiargcd
upon any oath spi»citiK<l in the suid copies of
thei:' re^j.wtivi* coinniiliiienis, except tlie alxive-
said Counter, who stands charged in his com-
mitment for the said crime, upon the oath o
one George Harris, gent. Given oMer bj
hand tliis 15th day of August, 1747.
" Tbomas Auxk."
True Copies of Petitions to the King sat
Queen, and of an Affidavit of two eminent sur-
geons, are hereinafter set forth as foUowetb:
To the King's Blost Excellent Majesty :
The most humble PExmuN of Major Jobs
Bernai^)!,
« Sheweth,
** That your petitioner now is, and for op-
wards of one-and- thirty vears last past hu
been a state prisoner in Newgate, cominitlri
the 25th of March, 1696, by the then earl of
Shrewsbury's warrant, as secretary of iisk^
and therein charged with high-treason, in oos-
spiring the murder and assassination of his bto
luajesty king William ; but witliout any pmf,
or so mochasanyinl'ormatk>n upon the oHib
of one single witness, that your petitioner could
ever hear of: neither hath, in all the said tine
of thirty-one years and upwards, any proK-
cution been hail against your pttiiiooer tor ibe
said horrid supposed crime, which your peti-
tioner doth disclaim, and i'rom his heart eik
did and doth abhor and detest.
" That by two acts of indemnity, tbcsof is
the third, and the other in the seventh ycsr if
the reign of his late majesty your most |ia-
cions father king George the iinsr, the cnne
alledged against your petitioner in his com-
mitment is paidoned ; bnt by the said acts the
imprisonment of your }ietitioncr was contiDonl
during his late mMJesty 's pleasure.
** That your |K-iiiionerisa<hised, thatbytlif
demise of liis sui>t Utc majesty, your petiuooer
became intituled to his li burly, and ou^bt not
to be detained in prison by any law now iu
bein«j^ ; .lud has ver}' lately applied to yoor
m»jesty\ judges of ilie court of KingVBcocb
to l>c discharged from his confinement, but
without success.
*< That your petitioner, by his so long in-
prisonment, is reduced to great straits nA
Maut, and great iiifirmity of body ; and his lite
is in danger by his cUise confinement in Nen-
ifAU\ as by afiidavit of two eminent sargfosf,
herewith produced, and sworn beibre ooeof
youi- majesty's judges of the KingVbrocfc.
and fded in the said court, may appear. Aok
your petitioner is now upwards of sercDlT
years of age, great and the best part of vIhci
time has been very uncomfortably worn trt
i>y your petitioner, in a melancholy, disfflili
and loathsome gaol, where it has cost yov
petitioner abo\e 7^0/. for his lodging.
** That ill regard to all such y our petitiOBV^
sad and deplorable cin'umstances, and dl-
vanced nl«i age, your petitioner most hinill|
lio|>es he may be deemeii a fit obfed ofyMI
majesty's charity and clemency, and nNratH
peciaUy at this juneture of yoar mi^atj^M'
cession to the throne.
*< Wherefore your petitUNicr 4oCh bmmI^MI
7773 on Acdmmt qflhe Asiauimlum Plot.
Hy hesetxlh your n>;iresly^ that be miiyf fWr Ihe
prtsetilt for ikir beoeht of \\i& Ut^ailb, and lo suve
cJtp€*iicc, he rriDuved Trom Ncwjpil^ to U»e
iLiair's-bench prlion, tilt such tiiue »» your
m^i ly see ettu^e tx) onkr
3fo«. u ttiKcbarge.
•* <ii«J your pcuuuuui* shall c*t r [iray, &c.
** Ex Parte Jqhanwh BERNAHOi Ar*
iu Banco Hc^iii/^
*• Jobn l^ie^kr ihe t?l(!er, and Julm Wheeler
the ynntigcT, his son, both »jf ihe vd\ of Lon*
don, surgeons, jointly and aeieralJy make
oalh, that major J oho* Bernartti, \\\m now is,
^d forupwanls of ooe-aud-thirty \env3t Wt
past, as these deponents have been informed,
and Tcniy bt'licFe, haih lieen a Blale prisoner
io Newgale^ hath frequently liud Tery jU tits,
occasiani'd hy a miserable tarneneas ftinUweU-
mg in bi$ arm, by bumoiirs f^uwint? to an old
wound. And these deponmrs further say*
tbac tliey bare attendeci him many time* m
tticU illm;s<, for al>out twelre years bst past,
aet bis surgeons, layiofj bis ami otWn o|»en in
ihcf bone by 1ar§:e indstoris, which have con-
linoed open and runninq^ wounds for several
uiunths alter every sucti operation ; and his
iorTue»t*i occasioned thereby ba\e frei^ticntfy
brought fevers upon hini^ to the enduu^ering
hi* liTe. And these depnntnls furiher say, that
in these deponents' judgment, the cause of
eautractingsuch ^hnrpitud^ross buinours hath
proceeded, and duth proceed from the length
snd closeness of \iia cuntuiement; %vhieh, if
pttjnuiL nil! still endansrer his hie, in Ibese
>^ment ; and t)i€{ra(hcr by reaaon
I old age, he being now, as these
^ deponent jj lia»e been intbrraed, and do btbeve,
["tipwards of seventy years of a^.
»* Jon\ Wheeler.
** JoilN Whceleh^ JUB/'
f*^ Jurat' apod SeijeantS'lun, in
Cb^in eery Lane, 15 Die
Junii^ 17^/7, coram J a. Revnolps/*
To tbe King's Most Exeellont Majesty :
|*r!ie humble Petition of Major Jews Dernakdi,
'« 8bevretb $
'* That your petitioner, by an t\ei of parlia-
ifttely inaile, being entirely Mt to your
>ty*a most (pmoua pleasure, at\er having
id aear thirty- two ytars clo^w ion prison*
n Newgale, on sospicion of being con-
ned hi a moat horrid conspiracy against his
Mnajesty king Wilbam.
> That your petitioner hatb alurtys prayed
[ sod (jftitionevl to be tried, as o^ten as he eould
I tin ft by bw, to b« ac4pii4ted or contleiuDed ;
i-y^ ^ eoM uerer be besf d or brought befofe
\mmf court, la have his guilt or ionoceiioe
** That yotir petitioner was not obarged upon
. mmf oath, ot Uw being a cons^pirutor in that
flltmd plot^ which is evident by [m cHiuutit^
mm^t ii»'|Mli cfer boing tiikea up for high
irsAiCMi^ aiul m chiurged, but ihc«iti|« waa al-
A, V. 1696. [77S
ways sonified and expressed in liia commit*
ment (as your petitiotter ia advised). For in*
stance, Mr, Counter h only ehargfd upon the
oath of one evidence ; thedtBttoclioDsuAicieirtiy
appeareth by the copy of his cniniaitineDt*
and that of your petitioner, hcicuoto an-
aeiced.
*^ That your petitioner haib humbly set forth
his great age, infirmity and poverlVt hy «
former peiitiua delivered into your u^njt^ sty's
most gracious band -, yttn^ ■ • »■♦— -n' I
above seventy years old, su ipp^
bio miseries by frequent ni. .m la
limbs, oeeaaiocitti by bis long nod close
fioenieat, tUtBted upon the oath of two
nent surgenns, and annexeii lo his fbrroer p«il*
tion to your majesiy.
** Y(W petinoner therefore most humbly im-
plores anil supplicates your majesty, in your
siivereigo comiiaaeiioo and great goodness, lo
tfrant that your petitioner may be retnoved
from Newgate to your majesty':^ Bench prison
for the present, ibr the benefit of luore air,
and less expence, until your majesty may be-
graciously pleased to grant your peii^ioner entire
liberty,
** iod your petitioner shall cirer pny, Ate,'*
siy'i
i
To the QoeeD'ft Most £xoelleiU Majstly ;
The humble PmnoN of Major John Bernakdi,
** ^bevretb ;
" That your petitioner bath been a dost pri-
soner of state in Newgate itear thirty- two years^
and is now destioed to a longer Ofinfiikeiiieftl,
by an act of parliament laidy made to that'
end, leaving jour petitioner to kis majesty's
DMist gracious pleasure.
" 'I'hat your petitioner was not eommiU^d
upon the oath of any e%idence, asappeareth by
the copy of his commitment annexeid to his pe^
tition, delivered alao to his majesty's most gr»>
cious band this day.
'^ That your petitioner and the rest had their
Case delivered to tbe members of bfitb Houses
of pariiament, whilst tlie act fur their longer
imprisonment was under their consideration ; a
eo|iy of which is hereunto animwd.
'**Tbat your petitioner is mm vf the oldest
comraisaiou otficers in tbe kmgdoiD, having
served the stutes of Holland fifteen years by
tbe king of £ngland*6 consent and approba-
tion ; your pciiUoncr bearing five of his then
bigbnesa tbe pnnce of Grangers commissions
in sevemi stations of honour, the first of which
liears date above tifty*four yean ago , and
your petitioner halh been siuch wouikM is
theaaidaervioe,
*^ That your petitk»u0r't mndfatber «iid
fktber were both «*oiMiia ef Ate empire, dee.
tboucb his said father and yonr )»etitroarr were
both boru luhjects nfthm kiiigdrim.
<' Thai your jM^iuouet hutb bii beforetnm-
iioned eominijuiiuoK, anti iho iinp«frijil patent,
te priHlttce iu ieaUmouy of the truth cher^if
«' That your petktiooer hath already coflared
1 puaiahnMnl m ibmgmt^M^iMSS^ thitt a
779]
8 WILLIAM IIL
Froceedingi ttgaimi John Bernardi and tdhtrif
ptest^t or Ttokat death, and nevi^r could «>btaij)
' ibe farour to be brought before atij cotirt of
jufiticet U) have his guilt or inDOceQCe proved ;
kepi in priwm dear thirty -two y^^ra, by
ifi«lhml» never h^ani of beibre ; ami U now
Rjgli wovn out with oi^J age, doere(>i(lne^!f, and
poverty^
** Ywiir |M*lilioner tbcrefore most hundily
i[ii|il<irc* And lH*sc!Pchei4 your majesty, in ytmr
• ncfVerriffi ciinipaisssicm »tid pity, lo'^iuove the
king^ to i,*^rai»t ihe prayer of your moat (uisera-
bic petiljoner^ whieli h but one priaoo for ano*
ther, utitil the iking of Kings, m \m divine pro-
▼tdence^ shall dtjUver your peiitiouer out of this*
-' changeibN ivorld, or ^ that his cnajr«ty n:iny be
graciously pleased to grant hina inor^ liberty
iu it.
^•» And your petiiiooer shall ever pray, Stc.*^*
^To the Queen's Most Eiccelkut Mnje^ty :
The bumble PmTio?j of Ajiigail Beanahi^Ii
^ Wife to ttie nii>jit unfortunate Major John
H Bernard), wbo bath for upwards of ont^
^^ and « thirty year& last past been oon^ned a
^p State -Prmont^r in Newgaie.
B " Sbeweth ;
P ** That vour petitioner oo tbe 95th of June
last, did treliver to the king't« niost e^ccellent
m^esly mn biuuble peiitirm on tlie behalf of the
* To Blackburn 'a Petition^ to ^e same effect,
was addetl the fuUowin^ cer tipcat e t
** Middie«e.if^ *f. These are to certify, That
upQD isifarch made ainong^tit the records ^f the
B^sionsi of gaol -df lively of NevT^ate, held ibr
the county of Middlesex, it appears by the said
records, that on the Snd day of April, 169d,
Robert Blaekburti was comuutted to the Miid
gaol of Newgate, by the right honourable ih^
duke of Bhrews^bury, principal secretary of
AtatSf for high treason, in conspiring the as-
Eassjnation ot the late king. And 1 do further
certify s that at the sej^sions of gaol -delivery of
Newgate, h^ld for the ^aid county, at Justice-
hall in the OldrBfiiley, in the suburbfi of the
city of Lfitidi>n> on the 9th day of September^
1696, the said Hubert Blackburn wa» dehvered
to bail by ihe couit, iW his iiersonal appeurunce
at the next sessinns of ^ol -delivery^ to be held
§ot the said county, to answer to all such mat-
ters, as on hm said late niajc«ly^s behalf should
be objected against him ; and not to depart Ibe
court wiihout licence ; and in the tneau time,
to be of his ^ood bebaf iour ; that then, i!kc.
At which smd neit sesaions of gaol-delivery,
to wit, at the sessions of gaol^delivery of New-
gate, held for the said county, at Justice-ball
atbrt^aid, on the 14tb day of October, lOOtjj
the said Robert Blackburn personally appeared
in apen court ; and vvas. by the said court itia-
charged of bis recognizance. And 1 do hereby
further certify, that it appears by the taid
records, that on the 7th day of January, 1696-T,
the said Rfdiert Blatkburrt was committed to
the ^aid gaol of Newgate, by sir Wilham
Tfombal), kmgbi, one oif bii late iQi^ealy'i
said unfurinaate pri&uuar, llif«reMf pr^ying^, f«r
the reasotia tbereiti contained, that ht m^aHit
for the present, for the benefit luf hU b^aUh,
ond to a^vG eirpenee, be ren%ove4 iWtin Nr«*
gate to the Kuig's-beocli pris<jij, till sucU lime
as his majesty should graciously aee cause to
order hl;^ abso I nte discbarge, »% by tlie said pe-
tition, tclerenee being thert^umo had, more
fully luay appear. That ni the reign ol liis hit
majesty,' in the time nf the Preston rebeiiiiHi,
many prisoners undef condemnation and sctt-
tcnce of death for high tr^joh, (but reprieved!)
foi' the sake of their uaahh obtaiued an indaU
gence of a reoioinl from one prison to an^bcr,
^liere the closeness uf ibeir ciu^ti^fieraent rw*
dangered their li^es, as is nott the ca^ of tbe
said uti fortunate Bernard i, who, although lid
bath already undergone a confiuement HDr«if
than death, was eommittudonly upon sti«pict<?n
ot a vi.y horrid and tnost deiealaole rrime, ia
con iig the mnnler ainl assassination of lui
je*ty king WiUiom, hut without amr
»r as much as the oath uf one siof^fr
against him i neither li;ith any pnxtf
jnd againjst biin, or he brought to auy
Ik npwsirds of one-mnMhirty yrsrf
ind as he hath been always rrady sod
i to take his tiial, be hath, from ihut
reguUly entered bis prayer to be UiM,
ur petitiouer there tore doih most huoi-
inonrabk priry-couneii, principal s«w»
stale, for hi^b trt^ason, in conspirifi^
tiii^ niurdpr and assassination of the i^aid kiog.
Dated this 10th day of Augui^t, 1708, tn tbe
Tth year nl our sofereigu lady Anne, by Ills
grace of God queen of C< re at Britain, 5cc.
" B. Hj^acoiRT, clerk of the (;eaer,
and gaol -deli very of Newgate,
fnr the couiiiy ot MiddlesejiL*'
It appears I by the foregom^ Ceititicate, that
Robert Blackburn was eommilted the 2nd uf
April, 1696. That on the 9ili of Septemlier
following, be was admitted to baiL 1 hat tbe
14th of October, 1696, he was di^bar^eif.
The 7th of January committed again Jbr tlie
same fact ; thuugn taken up at the Buoy sitil
Nore, by one captain Naab, for attempting ly
go to Flaudtfrs without a paSs. By eapioia
Nash lel\ to custody of a messenger nine
weeks. Then committed by eir WUllam Truo»~
bait, knight, to Newj^aie, and never ejcamind,
or any oath against faun, that ever he beard ol ;
andtnen detained till ao act passed toimprisw
Couuteti Meldrum, Cbambera, Bertiardt and
Cassels, who were all sti'angers to, and never
seen by Blackburn, till in Newgate ; and then
he was inierted in the amcniiTtd tnil, whiclh
came down from the Lords to the Commons,
He has been now almost thirty -three yea^s la
prison, aiid no allowance from the goTemment^
though a state -prisoner. He was not one of
those, for whom the thousand pounds trat of-
fet^ed. These several allegations have been re--
Siorted true, by sir Ed^vard Northey, and sir
tobert Itaymond ; thcrcfoie he hopes to bav^
bis m^esty'i relief.. f
on Account of the Assassination Plot*
A.D. 1696.
[782
«h anil supplicate your majestv, iu
ereign compassion and gi-eat gooifnf*sfi,
«de with the king's most excellent
for the removal of your petitioner's un-
husbanil, the said major John Ber-
om Newgate to the Kiug^-hench
your petitioner shall ever pray, &c."
nclude this point, it is manifest by the
icited copies of petitions, cases and
es, and distinct allegations of the said
ihn Bemardi, that he \%as not guilty
is much as misprision of treason, hav-
r had, directly or indirectly, ahyknow-
the said horrid conspiracy,
ire two passages to be curiously en-
nto ; the first of which is, how'Ber-
ne to be nut into a proclamation P The
to this is not at all difficult. Un-
y it was by reason of George Harris's
ion of his being then in the Compter
taio Rookwood ; which Rookwood was
upon oath, though Bernardi never was.,
seems to be more unquestionably evi-
regard the proclamation, wherein Ber-
named, did not come out until the
ming before Bemardi and Rookwood
:en out of the Compter by the Guards
ght, upon Harris's inibrmation, which
weeks ai^ the discovery of the Plot,
nardi's name was never inserted in any
iroclamation.
text and second question is. On what
he was first confined by act of parlia-
To which Bernardi answers, that the
' Shrewsbury having inserted in his
nent tl>c following positive words, viz.
If concerned in the horrid conspiracy,
igh not a syllable of any charge upon
\ grace's word under his hand was not
lied in question by the parliament, in
f a poor, inferior, supposed enemy to
Tiiment : and how IJernardi, or any
lan, could have the confidence to set
' |iositively, by petitions to the king,
jse to the imrliameot, that he was never
upon oath, if he had ever known or
f any evidence against him, and in
f the contrary had been fact) he might
ave been contradicted, is not to be ac-
for. He affirms, and with great truth,
never lay under the odium of being
f any base or dishonourable act in the
ourse of his life, until the commcncc-
f his present deplorable sufferings ;
nay gain some cr^it from his several
Dns in commission from time to time,
■oad and at home : and laying aside all
ions of honour, no man m his senses,
capacity or common sense enough to
r his owo interest, could sure bese in-
I M to engage in so horrid an action ;
no iiriDce upon earth, being a Chris-
rid or wouki ever countenance such a
cnnrdt, though what he did might
nek frinoe'f terviee. Wc have an
instance of it at home, of one sir Paul Whit-
ford, who murdered Ilorislaus, Oliver Crom-
well's ambassador at the Hague. This base
and wicke<l act might tend to the service of
king Charles 2, wlieu in exile ; however the
kin^, af\er the restoration, never suffered
Whitford to appear in his presence, though he
had been a fiivourite liefore ; and if his ma-
jesty allowed him any thing, it was done so
privatel V, that nobody knew it, and he liTed
and died in a remote part of the kingdom.
Bemardi quitted to the amount of «bout 500/.
a-year, which he had coming in by employs,
and by his wife's fortune, upon kin^ James's
demanding his subjects home from the Dutch
service ; and it may be therefore reasonable to
believe, that Bernardi was in some esteem
with the king as long as his majesty lived ;
and nothing but a fool or a madman could be
so stupid as to forfeit such an advantage, by
engaging in a vile, wicked, and most disho*
nourable action, which neither king nor sub-
ject could justify.
It may not be improper here, for manifesting
and clearing up Bemardi's innocence beyonu
all contradiction, to give a particular relation of
what passed before tlie lord chief justice Holt,
upon the evidence given before his lordship,
upon Bemardi's beinjj^ suspected to be coa-
ceraed in the said horrid and detestable conroi*
racy, the witnesses and discoverers of whidi
were captain George Porter,* Mr. Le Rue,
* This George Porter, the principal evi-
dence in the Assassination Plot, and affainst sir
John Fenwick and the rest, was tried for the
murder of sir James Hacket ; and his Trial is
here inserted.
The Trial of George Porter, esq. for the mur-
der of sir James Hacket, of Scotland, knt.
at the sessions of the peace, Oyer and
Terminer, held at Justice-hall in the Old-
Bailey, London, on Wednesday , Thursday,
Friday, and Saturday, the 10th, 11th, letb,
and 13th days of December, 1684, before
the honourable sir James. Smith, Lord-
Mayor of the City of London, air Thomas
Jenner, knt one of his Majesty's Se^nts
at Law, and Recorder of the aforesaid
City ; together with other Justices of Lon*
don and Middlesex.
Jury.— Ralph Box, William Moyer, Walter
Coventry, Jacob David, John Palmer, Ralph
Izzard, John Easton, John Fauster^ '^^ff^
Attley, Thomas Harrison, Francis Smith, Wil-
liam Drink water.
George Porter, of IiOndon,esq. was indicted
for killing sir James Hacket, in the parish eC
8t. Bride's, London, on the 11th of October,
iri84, in the 36tb year of his majesty's reign.
The case and circumstances ap|iearing on the
Trial were, that the decease<l and the prisoner,
being at the Duke's theatre in Salisbury-
Court, afler the play endtid, a great crowd
hapjiening upon their coming out, and sir James
783J
8 WILLIAM III. Proceedings agaitut John Bernardi and others^ [78(
captaiu BUir, captaio Fisher, Mr. Ubank or
Hewbank, BJb-. Bartram, captain Boyce, and
Home others, whose natnea have escaped the
author's memory: they were all urvlcred to
assemble at the said k)rd chief justice's cham-
bers in Serjeaiits-imi in Chancery -lane, which
they did, and were there exanuued upon oath
by his lordship, in order to the trials of major
liowick, major Bernardi, captain Knis^htly,
and captain Rookwood, which tour were de-
sif^foed to be tried next after the condemnation
and execution of captain Charnock, Mr. King,
Mr. Keys, sir William Perkins, and sir John
Freind, for being concerned in tlie said vile and
villainous plot. Captain Boyce deposed upon
bis examination, that he had known major Ber-
uardi a captain in the Dutch service, where be
bore a very good character, but that he had not
aeen him in live years then last past. Mr. Le
Rue deposed, that he also knew major Ber-
nardi, but could lay nothing to his diarge ; and
that the last time he was in bis company, to
the best of bis remembrance, was at least two
years before the assassination-plot was disco-
vered. Captain Porter and tiie rest declared,
endeavouring to make way for his children
with his cane, gently moving it, hap|iened to
push Mr. Porter on the back; who asked.
What the meaning of it was? But sir James,
as he designed him no aflVont, took no notice
of what he said ; and still pressing for more
room, accidentally hit Mr. Porter on the nose
or mouth, and made it bleed ; u{)on whidi the
prisoner supposing himself to be aifronted, and
jostletl or brushed by the deceased, (who iiad
the cane still in his hand) drew his sword, and,
without further cousidei-ation, run tlledeccu^cd
into the thigh, so that the weapon appeared
both ways, cutting likewise his fingers, whilst
he struggled to draw it forth ; whereupon the
prisoner recovered his sword, (the deceusied at
that time sinking down) hut had no further op-
portunity to push at sir James, here it was
seized by a gentleman present ; whereat tlie
prisoner expressed much indignation, and get-
ting it once more at liberty, stood upon his
guard, saying, he had served one already as
he liatl deserved, oi* to that efiect ; yet the de-
ceased, after the wound received, went home
in a coach, and lived till the 26th following,
and then died in the parish of 8t. Martin's in
the Fields. The defence the prisoner made,
was, tliat he had received a push in the mouth,
as he verily believed, from the deceased, and
by that means became so rashly unfortunate,
as to nm him through the thigh ; adding,
that he knew not the person that fell througli
this occasion, and therefore could have no pre-
meditated malice against him, l^c. whereuiK>n
the jury returning their verdict, found him
guilty of manslaughter only ; by which mcaos
he was not found guilty upon the statute of
stabbing ; upon which statute he was charged
with a second indictment : Imt the next heir
brought tta appeal. At the next sessions, held
tbe 16th aod I7th of JMuaryi 1684, Mr.
that they never had any knowledge of majv
Bernardi. Thereupon luajor Bernanii was
struck out of the number or list of the lour de-
signed for trial, and Mr. Cranbume was ap*
pointetl to be tried in his room, to make up
number four. They were all four tried aocanl-
ingly, and condemned. Three of them, vii.
M^r Lnwick, captain Uookwood, and Mr.
Cranburne, were executed soon after. Captaio
Knightly, who pleaded gxiiity, was by gfeat
intercession reprieved, and some time afia
Jiardoned upon the terms of banish meot. Ntv
blloweth a remark upon a mistaken noiioB
frequently broached and argued abroad, totk
great prejudice atid wrong of major Bemirdi
and his two remaining feliow-sufferers, Bhek-
bum and Cassels, viz. That there was oae
evidence against them, ami only one to h
come at, they having artfully apirited amy
and dccoved out of the kingdom one other cffi*
dence, who could have proved them conetiaed
in the fact, nhich was the ground andHwi-
dation of the parliament's passing the first Ml
for their confinement. Major Bernardi tikfi
upon him positively to deny that tJM^, and to
Porter prayed the court, that he might he iri-
mitted to his clergy ; but was answered, tbM
an appeal being already hrought and alkmei
it could not be granted, llien he desired he
migtit have hia prayer recorded ; but that ail
bein^ practicable in such cases, he vraaoaly
admitted to bail, liimself entering into a fMif-
nizance of 1,000/. and his sureties 500/. each ;
and ordered to move it by his counsel the foc-
eeeding term, at the King's-benrh bar. Tliongh
ut the next sessioiLs held at (he 01dHailey,dw
:25th of February following, Mr. Porter |ilpadd
his majesty's most gracious pardiMt for killiat
sir James Hacket, which was read andalkim,
aiifl he discharged.^
This captain Porter, as a rewani for givio?
evidence against Charnock, King, and KfjF^
(his servant), sir John Freind, sir nilliam Per-
kins, Hrij^adier Rookwood, )lr. Cranburue, sir
John Fenwick, 6cc. had a pension setlM on
him of *2G0L per annum, \ihich he enjoyed till
about June 1728: for the probate of tlici»ill
of this George Porter, late of the parish of St.
James's, Westminster, esH]. was granted in the
prerogative-court of Canterbury, July 4, 17OTi
uuto Elixabetii Porter, his widow anti excca-
trix; so entered in the Pension- ofiicc bnokf,
and in auditor llarley's and auditor Foley^
office, July 1728. Captain Fisher had like-
wise a pension of 2(>0c. per annum tor beinf
an evidence in that Plot, as had others, but
less sums.
* Captain Porter, in Rookwood's TnA
(see p. 182,) was excepted against by thcpn-
soner*s counsel, as incapable of* being a wilutf|»
standing convicted of felony, for killing ar
James Hacket, knt. ^ Car. 9. BMt hu"-
got the kieg's pardon, wasaiUowed A legal i
ness, Ihough uot burnt ia the ^niL
r857
on Account of the Assassination Plot*
A. D. 1696^.
[786
iffirm that nothing can be more falife and un-
rnie: for no one eridcnce or fUscorerer of that
abominable conspiracy was ever pre%'ailed on
to abscond or quit the lund, or e^er absented
himself, while the gnTernmcnt had any use or
occasion for him. Mr. Goodman indeed, the
itase-player, had bc'en a copartner eridence
vritri captain George Porter ajsfainst sir John
FenwicK, who was chartjcd by them with
being concerned in a diflerent S])ccics of trea-
son, with other persons of quality, by cndea-
Tourin"^ to procure an invasion from France,
two years before the assas-sination-plot lirnke
out, thonp^h tiir John Fen wick was not acciiFefl
by Gooilman and Porter till that lime. True
it is, that the said Goodman was soon afrcr iii>
6ttenced by a biibe and fair promises (as is
snppo?M>d) to quit the kih:^dom, thereby to' pre-
vent sir John Trnwick's beings convirtcd of
hi^ treason by the common law ;'wliicli oc-
casioned the parliament's passin<^ a l>iil of at-
tainder ag^ainst him, which took awayjils lite.
But that was not the case, in anv respect,
of Bernardi, Counter, Meldrum, Cliamboi's,
Blackbimi, and Cusscis, or any of them : nei-
ther was Goodman e%er so much as mcntiuncd
or charged with the knowlctlge of, or of lieiug
in any maiuicr concnnicd in the assassination -
plot ; so that he neither was, nor. could be ^n
evidence against any one upon that account.
Pro\ ideiice was so gracious, merciful and in-
dulgent to major Bernanii, in the midst of his
misc'ries and afflictions in Newq^ate, as to pro-
vide him a second virtuous, kind and fovincf
wife, in the year of our Lord 1710, who hath
provetl to him a true helpmeet, havin^r by her
good mauaj^oment and iiidostry, and great and
kind care of' him, contributed much tu his sup-
port and comfort, and to the keeping of his
iieart from breaking, tindei; the worst of .his
hardships, difficulties and distress. And by her
lie bath had, during his cnnfinemeni in iVew->
gate, ten children, who in respect of charge and
expcnce under his strait and ^narrow circum-
stances, an<l under his immurement, or being
buried alive, have been no small burthen to him ;
yet he esteems them great blessings bestowed
upon him by Almighty God, at whrisetribunal,
after this miserable aiifl wretched life ended, he
knows he shall appear innocent of the heinous
and monstrous crime laid to his charge ; and
forthe bare mistaken suspicion of which he hath
not put in dun^ns, or otherwise ill used In
prison ; but he is always handsomely provided
for, and allpwed a liberal subsistence by the
government according to his rank and degree :
But in our said English Bastile no state- prisoner
has any allowance made him from the govern-
ment, and in case he hath not of his own, he
must lire upon charity, if he can l>eso happy
as to meet with it, or starve : and in case ne
hath any known substance^' he must expect to
he squeezed out of a great part of it, or he shall
have much worse losing than many a tolera-
ble dog-kennel of a kind good-nnturcd country
.csiqnire would make, be loaded w-liU irons, and
used worse than a dog. And u\\ tlii<i is per-
niitted or conhivcd at, uitdcr a government, the
voicQ of whose people is alinost per))clually
l)oasting of liherlyand property, tlic words li-
berty and property being ever uppermost, and
at their tongues cltd, and they cons'. ant ly ex-,
clairning against arbitrary power : But God
ulonc knows the sincerity and soundness, orthe
holloivness and deceit fulness of nicn's hearts.
Can it be accounted for, that so much oppres-
sion should' be suffered to be practised in a free
amrChristian nation (as Fngland is) ; and, on
the contrary, that so much humanity and refief
should be sliewn and used to state- prisoners in.
distress in France, under an absolute and arbi-
trary government ? Sure it cannot proceed from
the trench being more honest, more polite,
more humane, less malicious and revengeful,
or of a more generous and Christian temper,
than the English. VoY my part, 1 ani'so fer
from asserting it, tlmt I u-i!l nut so much as
think it. But this I will afHrm, that what I
have liefore observed with respect to the differ-
ent usage of prisoners, in the two several bas-
tiles of the different nations, is not more
strange than true. Ai:d now 1 have notliing
more to add hereunto, but my hope and eaniest
desire, that such as, out of curiosity or other-
wise, shall give themselves the trouble to read
this small tract, willbd' pleased to judge fa-
vourably of me.; tq which intent I was chiefly
' moved nni) induced to the pains of writing it in
my old age, and to {yrevcnt an infamous and
(xfious character of me from being wrongfully
and injuriously handed down and transmitted
ttj posterity ; the very thoughts of which ha^e
been more grievous to my mind, and mora
piercing and wounding to my spirit, than all
in three reigns (and for near a year and three the rest of my hardships and sufl'erings, which
«|uarters in a fourth) been so severely treated
and then heshall,ifuot sooner delivered by any
king upon earth, God Almighty's vicegerent
liere below, be delivered irom the English
bastile (vulgarly called Newgate) by the great
and roercil'ul God himself above, the king of
kin^, and only ruler of princes. It may not
lie improper here to ilistinguish our said Eng-
lish bastile from that in France, and to shew in
what circumstances they materially differ. To
which ond know, cantkid reader, that a state-
prisoner in the Bastile in France pays not, nor
19 8qiiee7.cd out of any thing for his lodi'tng,
.meal, drink, or ease, nov in loaded >vitb irons,
VOL. XIII.
Will ever be the case of a man well b»»fn, having
an honest heart, a soldier, anil a man of ho-
nour. 8uch a man* can ill bear reproach and
disgrace, not having deserved it, and to whom
his good name and fame must bu ever dearer,
and by him held in much greater esteem,
than any other thing in life, nay, even than
life itself, and the author being old, as be-
fore mentioned, and (as he doth hereby frankly
own) unlearnctl, and not skiljeil in letten**,
bavins: chieHy been trained up in war, and not
muchinschofarsliip, he humbly hopes the same
may in some measure plead his excuse for such
defective words us may be found in this lils
3E
I JAl^Il^ IL Pr(^e«K%it <wsi^ Ijfm
iD'nlpr^uiMLto hiiD, ibt am^ t^imn^ m.ikiff
ihU he hath UMrdbgr fumtc^ ah^oit^l-bu
co^tviiiporBirie«» frietMit, and fjUpaiirtMyr, WW
hare contribntfil to his fappQCt AirfU mam
~ niMer o
ihoi^ 9lin«tire» anclfocthe plainiiw^. aoJ mn*
ittoomctness of its stib. Vntnitbs or inisrv-
|vinMi)tatiuiis there are aone in it, to the be:st of
m9 knowledge and memory ; uor hath be in-
t^tjoDiiHy, oVatallt tpthebestof hiaiudgm^iiti
liSereiiMTflected upon any persoo wbonisoerer
19 any wise, or apoo the power, justice, or wis-
dpm of the aereral paiii^ents, by wjioie re-
newed actfs, from tin^e to time, hi* coofinemenl
in prison hath beeo spun ovt. to so gre&t a
lapg^lfa : Dor upon' th^ courts of justice aod
IJarufd judiges presiding therein, who bare had
the several opportonitieB befoire-nentiDned «f
dpcharging of bailins him according to Jaw,
liirtfaer or otherwise than as any. reflection upon
•H^
One Tery great misfbrtoiie. it. hajji beenlo
the author, aM the last that he wiH tirooble hii
s^l^ withal ; and which would scarce, in tbe
eUe^f another, be deemed m.mvMbctiinek k|t
rlLtber on the eontriry.be esteemed a very greai
Uessing. fix. That he hath lired to so gremt an
a^ysVK^ old age, which most peonle woald nsr
tftiially desire to do, life gensrallv speskiDgi
IteSng sweet, and the f ery thoughts of d^tb
aohorrent and shocking to nature; Ihoii^b
(^»th, when all other friends fml, is most cer-
tainly a kind and sure friend anddeliferor is
^ff^ of need, from chains and gaob, sn hell
dpon ea^th : But to expbuo and make out* tbiit
tfif author's baring, lived so long hath been a
tQo late in the .day, and 1
him to hope or expect to.malco any. aew as-
qpainlanoe or. friends, wherahy homqf.nip
iny adraiitage or as^istiDoa
Kfficttlt circim
di&ttlt circumstances,^ wileH An. his liNla
tract mav. perchance m^ho bin «ne HmmIi
among tBo geod^nat«rcd, jpbubiom, aaid d^
TitaHe part of mankind, mm ilbaUjBoihs nd.
«r aH^ sense, nstioa^ and. feUowrfctHnf of mr
other's suffixing ; nor bo peHhoC tmimn U
a|l humanity* pityt rmnmisiwHinii nna cmi-
isioi»; nor piofane that saorad pdilio^ii thi
inl'spraj[cr»viSf Foigireiis.oorl
we rorgire them that tn
OS jt iSkloibe feared maoy do, by hatmg ilii^
their mo«th9» when they tkempeires, with.
haidea^ bef^ c»nnot wtgif c oyea llw imj
cent and guiltless, who hate not tretpasni
aoaiosl theqi. And so the .author coaBladfi
with biddiog his reader heartily AmwaiiSsA.
in a^ti^tation of the truth of wihat he haowai^
hetakestbeixeedomtoaubacribe hisnaioa.
Newgate, JoHWlttiWiMfc
Miureli.], 17S8^
He died at his chambers in the Pm^yadii.
NewgiiV^ thebUer end of Sc^Membcr, iTMiii
the ^1 ycfkr of his ag^ hovmg beeo ftsl*^
inrisoper about 4a yean in that gaol, «itbiil>
trial or any allowance from the gowiHmsit
396. Proceedmgs against Sir Duncan Campbell, and other H^
ritors of the Shire of Argylc, for High-Treason :* 1 & «
James. VII. (of Scotland) a. p. 1686—1687. [Now firrt
printed from the Records of Justiciary in Edinburgh.}
CvB^A. JusTioiARiJE, S. D^ N^ Regis tenta. in.
Pretorio BurgI de Edinburgh, quarlQ die
roeosis January 1686, per nobilcm et po-
tentem comitem Georgium Comitcm de
Linlhli^w, JusticiariuQi Generalem, et
honorabiles viros, Jscobum Foulis dc Col-
lintouiie, Justiciaiioe Clcricum ; DaTidem
Baltbur de Forret; llogerum Hoge de
Uarciirss ; Johanem Lockbart de Castle -
hill ; et AlexaQdruin Seattoune de Pit-
meddcn ; Comissionarios Jusiticiariie dictc
S. D. N. UegU.
Curia legitime aflfinnata.
I/HE said day anent our soTerait^ne lords
crimiiiall letters raised, used, and execute at
• " Oct. 12, ir>a5. Sir Duncan Campbell, of
Aucliiubreck; Air. Alexander Campliell, Ad-
vocate, and many other!* of tbat birnanie, are
cited on GO day s fur j aiuing wiib Argy le. A ud
being called at Crimiual Court ou Uie Htb of
tbe instance off sir George M*KeBBi% if
Rosebaugli, liis roajestie's adrocate, for itf
hip^hnes entreat ogainst sir Duncan Cam|MI«
of Aucbinbrcck ; Archibald Campbell, sons ts
the lord Neill Campbell; Donald Campbd,
elder, of Barbreck ; John Canu)beU, yonagsr,
off Melibrt ; Archibald Campbell, off Daas
(prisoner) ; John Campbell, of Knap ; mankr
Alexander Campbell, aidvocat ; Dougall Camp-
bell, off Kelbeme, younger ; tbe deeeast Alex-
ander M*c Millan, of Drumore, DomU H'i
Ncill, of Crier; Collen and Duncan Canp-
bells elder and youn<;er, of lllairintibert; Due-
can Campbell, of Carridell, elder; Ajetandtf
Campbell, of Marr ; major ■
son ; captaine John Foulertouue ; Mr.
Decenil>er to be forfeited on probatioD, wa0
continued to the 6lh of January, 1686*
"Jan. 5tb, 16i!6. At Criminal Co«fl» li
Duncan Campbell, of Aucbinbreck, and I
two o^ore, Arg^-leabice heritoi^, 1
2
^ High Trms6n»
Hit, minyirttT ; Mr. Gedrge Wisbwrt,
rber ; Mr. AteXiirid^r If •»»> ; - * r^
John GvUhrif'; -i-^— John Rcwtg^r,
^otti^tjtne ill Uorronstotin^St Ouner; Watter
A. D. 1^6,
[TOO,
4lci<**f, 1686 » «»« torleittil for joiiiifi^ iHlh
Argytit in bis f«b^llidti. Ttie witoesses ti^'nst
itiens v^er« the taird i»r EHan^rcig^, ^c. tli^o^h
^mthr ffocMB or Ireason iheittM'Wcs. Ammi jf
«t#>f*f«i, wm Om^MI, of Otter, i» hbse estate
H» Ai^yle. Tliffe were sundry
•ppnrfiu nejrs nnriofrgf the foHi'ited, ivhofie stT-
4X>nd brotJicri i^ere on the kin^^« side wKh
^tJiale, It were but charily tr* enco«f»g€ tfjetti,
€d nmke them dontt^m to tbeir bfolfaers Ibr-
^^d|r^ is forf'eiteil ft>r Mi^ With Ar^yh ; but
^K relies on a promise of the maix^tir^. of Athde's
^P gtet turn a remis^on.*' FoimiainhAlI.
*' J«D. i, t686. The Adrncate pmdti<*e() ati
id^ictmptit upon the stf it'C of rebel Mon ag^amst
Campheit and oihan. Tlrerc are a ia«t tj^niiy
A^iMincpm t' _ 'i "■" ■ .■^' :::..:..,.,-
1 Ihifit^ol I
the lianie tit 'L-i;hjkjiii. i iiuiiu: imil muiiiu <iit
m of must note : Sir Duttean Campbell, of
brcck ; ^^ Campbell, of Btrbrt-ck ;
h, Cttn»|ib€;ll, scVft to lord Neil Cariip-
lom we had forft*iied brfbro, and h«uv
IricQinpikin ay^aiii her*? I know not; CnmjiFjcllj
JQfing:er, of M'elfort ; Cam pbcll^ ot Ktmn i M r*
lexiinder Campbell, AdTocaic; Campbell, of
*ilberry, yonnij^r; Alexander ManjiUlan, nf
lutnmorir; David McNeil, of Crer; Duncait
ini^bdt^ of Carridel; Alexander Camplicll,
^' lleoryson; captain Joliti Ful-
Ui Wishai-t, (1 fancy it ought tn
Ik- ' '^T Alexander llaj^tie,
ftf ' 1 , of Lapness ; cap-
lai.*^<M.L4 iji^i.i ^ , i ,t ,>. n CtiupbelUentutiitHjly
called liluck Ktrif'k; I'ntrick M^Rater, of
loeLffeAnie; AichTbald M*LevennK"k, of Otib ;
iTer M*Iver alias Canipbetl, of Aishness ;
GbuOiptt^^ of Earnathen ; Campbell, of
Sifdaf eti ; — «^ Ker, of Kerstand^ >oun;;cr ;
f^hn Campbell, of Darj^adiie; lit. Cumpbelf,
' >Thcr; DiigJii >!actarish, of DuDBrdrie;
^Jacarter, esptain of the late Argyle.
'* there is nothing of probation against those
fenons in the Heg-isters ; hut tliuy are remitted
fti tlie sssize, who bring them in aa beingf g'uitiy
IB the rebellion witb the eafi of Argyte, and the
Lofdi sentenced Ibem to be executed and de-
ioittaud is traitors when apprehended in cuan-
Jaif, l&tb. Duncan Campbell, of AUeu-
greng, youngfer, coofeisetti bis acce«aion to the
bit earl of Ar^^yle's rebeUion, caats bimself
•poti the king^V mercy. He, with bis father
Cf' Ml, of Allengreig", are sentenced to
,ht\y (^, at rhe<%x>s<j of Edinburi^h,
inc. And l>e-
i; Canipliel),
; Can'p'Jeir, ct 0aigdjtru i Maokchlao,
Bfo#ae: " ^ Holiiert Efphiwrnne, pCj
Lapness ; captain ■ — - — capmin John fl"*
dry, in UorrousUiunea ; Puirick Camn
eatfed DIack Falrick, %oae to Mr. John Vn
of Bamaj^pid ; M^clachlan, of Dtinad ; Catnb* j
}^II, of Blairin-tibbert, were sentenced to be]
executed and denieaaed, (§tc. in cemmon for^, I
"i^hift Fs all I meet with as to the ^ntlememj
cboeerned #itb Argyle Ibta year: we shkUJ
meet with some more next jear ; it wai their ]
estates now tUey were «!eekiiTSf for more tliaQ j
iLeir blood.** S Wodrow, 587.
I h*- " * rtiserred that these proceed ingi I
arc I hy Burnet (who, indeed^ wai ]
upon ;;iK ^^...luient of Europe when tliey oie*
curred) or by Mr* Laing: yet several parti*
culars in these proreedlu^s, biy:hly illustrate i
the cliaractfer as to statt proseeutious, of kin^ J
J^mes tlie Fth*s ^ovemnietit tu Scotland ; ana j
<!»f the pannds Included in the dittay of tbis fiiit^
caie, some were absent, and some were dead i \
of some the abodes, of some the Christian ]
miines, aild of some the surnames nre ontitted^
• ' ' nnccedin^s ' t 'Us, ofj
;, exhibit a i lucle, i
nrci^ (III nil' iKui id tlit^
rri; us'TU
mm to eonvu i
crown, of two persun^j charged uiih rebellion,
who ^ere tried witbin a forlnf)** •>'^■'^ the \
crown bad bad Uie l>enefit of t nony
fur the conviction rd' others *%li' j irgt'4
to be tlieir a«;8oci:ttes, and who it should seecit
were their utr^bbour^, tht^tr friends, and thc(r
rein lives.
In the flr^t act of the second ^ssion of the
first (and only) parliament <»f Ling Jan^es tbo
7th, ldS6, (.ict of Dissolutiou of the Lauds df |
Cesnock and Duclml) ; and also in the uinili
act of the same se!*;ion (Act of Annescation oi |
the Baronies of Muirhall und ^letfort to the
crown) it appears that Jamek had (March iQib,
itjS6j jifraiiud to MeUbrl the lands of sir Duu-
cau Cnmpbell and other pannels named in tbim
tirst dittav; nnd also of Culin Campbell, elder,
of Allen flfreig^, and Duncan Cftmph<dl, youngcrf
thereof, *' which fell in his majesty's bands by
the foifeitnre of the forenjimed persons/* Tbb
unspurinsj' rajiacity of the court devoured at
oil re the jackal I and bis prey*
See, also. Act 18, uf the sec<md seasiofi of i
the first (and only) parliament of king Wdliaitt
and queen Mary," 4. d. 1(590: ' Act rencindin^ 1
*■ the Forfeitures and pine« past since 1665,'
Patrick Campbell, vvho was produced as %
witness on the part of the crown, upon the
trial of Campbell, of f>ah, aud others, was, ii
appears, at that time himself under ^enietice of
death. In the act rescinding tbe forfeiture of
Fletcher of Multoun (chap. 16, of king VVilliaiit ,
and queen Mary 'ft first parliament) on«; of the 4
grounds of rerersiug tbejudijment of Mr. Flet-
cher is stated to be, that me witness against
him *vas under the terror ol^ death, and tcmp«
tation of a remission aa staodiog charged witli
and prisoner for tbe iame alte^ Crimea) and
not pardoned tOl be had depontd 10 r
I JAMES> II. Proceedings MgaiuH Sfr D. Campbell and'otherSf- [7R
F^if vit to admitt the sainen to. the kM»M||re
.off. line assize, and upoo' tlie yerdivt of tbe io-
3 ucst. finding the samcp to be protine, tbe
oum and sentence of fortiuiltiire onghito prs-
ceeti, and be ^iven and prouounoed in tbe mat
nianner as iff tbe penons accused bade cen-
peired and were present: Nevertheless, il isof
veritiej that the saids sir Dancan CampbaU,
A rchilNLid Campbell, and haiU remaneDt nr-
sons defenders, shackeing off all fear of U«d,
respect and regaird to his raajestte*8 antbarilii
and laws, have presumed to oomitte and are
guiltie off the saids cry mes in aiia farr as tbjtr
being in tbe year 1683 years, ane hellisb aad
damnable plott and couspimcie entered into
by the late.earles of 8hattsberry, Essex, ir-
l?yll, and other rebells, subjects of this Im
inajeslie*s kingdomes of Scotland and Enghod,
fur killing and murdering, at least wtmf
upon his majestie's sacred persone and hi
royaH brother, our latte gracious soreraq||t
king Charles the second,' and for raiwiog dfii
i« arr and rebellion in both kingdomes, ud Jbr
iurnishing men, mouev> ships, and armci to
the laite earle of Argyle, for that effect, Mi
accordingly tlie said laite earle of ATfvk^ni
severall others, rebells and traitors with tliai«
did most trcasonablie inxade this his majttte^
kingdome with men, shi|>s, armes, and anooi*
tione, and landed with them in the west high-
lands off Scotland, upon tlie day af
May last; and no sooner bade they lioM
then the hail I remanent persons defenders nm
and joyned in open armes and rehellione wiik
them, and did convocat and gather togeUief
his majestic's leidircs to the number off
thousands, wiiliin the shyres of Argylle
Tdrbat hiLrhJands, and isles therabout, against
his majestic and his autUoritie, did issue I'uitli
treasonable proclamations and declarations, did
take in and inaintaiiie forts, strengths, and gar-
risons against his niajcstie and his forces, did
robb and jil under the goods and houss of his omp
Jestie's guod subjects, randevouzeil and exer*
cised themselvia, did scouit lurth, kill aad
murder severails otf his niajeatie's good sub-
jects, and did continew in oj>en and aroued
rebellion against his majestieand his autboritie,
comilling all acts of hostilitie and hi^h trca-
sone, untill at leuth ihey were dissipat and
defoate ; and tbe saids liaill foruamed persons
did most trcasonablie harbour, recept, inber-
comon, converse, and correspond with, and did
abaite, assist, suiilie, gave help, redd, couodll,
mcatt and drink, releiffe and contort to difi
saids luitc eartoil'Argyle, sir John Cochran, uff
Ochihrie; sir I'alrick Hume, of Pol wart;
Denholme, off Weslsheills ; and others, forfault
and declareil traitors, in company with bim ill
the said moneth of Alay and June last, witbia
the saitis western highlands and, isles did not
exact dilligence in searching and appreliendiog
of them, and expelling them furth of the coon-
trey, nor gave not tymeous notice nor intelli-
gence to our niinysters and oflicers for ibit
effect, Tbrow the docing and committim^
whereof, or auc or other of the saids dcedllM
T91] .
bell; Donald Campbell, of Relnab-
bie,,youngei ; : l*atrick|]U^'lj'tbur,
.of Inchrine; Arcbibald l\I*Ilvcmoch, of
Oattcr; Alexander Forrester, of Knockreoch-'
lieg; ]vor Al^lvcr. alios Campbt'll, of' Asknish ;
the deceased 'Diigall M'Avish, of Dunai^drie ;
. >li)exander Campl.)cil, of Cunachan; the de-
ceased Dugall Campbell, of Auchterearlie ; —
. •= off Mielvemochi I^cill Campbell, of En-
sachan; Collioe .Camnhell, pf Allangreig^
elder ; Archibald Campneli, sone to Mr.Vohn
Campbell ; John Campbell, of Kildalvie ;
Kerr, of KerslantI, younger ; , John Nisbct ; —
• Fleming; — < John Jamesone,
..ill Borrowstounes; Archibald Cam|)bell, off
Auchtermore; John Campbell, of Dargachic;
. Jtobert, Donald, Archibald and Hugh Campr
bells, iiis brethren ; Alexander M* Arthur, cap-
. tain to the late.Argyle ; John Gilisone, son to
Andrew Gibsone, mercband, in Glasgow ;
Donald M*lIvornock, off Ardmacbrcck ;* make
and nientione, That where notwithstanding be
the common law, laws an<! acts off parliament
off this his raajestie's kingdome, and cumstant
pracltq thereof, particularlic be the. third act
first parliament and tbrettie sevcnt act second
parliament of king James the first, and be the
foiirteinth act, sixt parliament and fburtie nynt
act tweht parliament king James the second,
'. nyntie scrent act scyent parliament king James
thefylh, and ane hundred and fourtie fonrtact
.twelt parliament king James the sixt, and fyi\h
act iirst sessione first parliament king Charles
. the second, the ryseing of his majesiie's sub-
jects, or any number off them, the joyneing and
.assembling tonrcther in armes, without and
contrary to his majestic's coiuand, warrand,
and authoritie, and the abaitteing, reccpting,
assisteing, intercomoning, and kcciiing cor-
resnundcnce with such rebells, supplieiug them
with rcil, help or councill, or giveintf them
any relieife or comfort, or the not searching tor
or not apprehending of them, or not expelling
them forth off the counlrey, or not giving
tymeoHs intelligence off thcni to that effect,
are most detestable, horrid, heynous, and abo-
minable crymcs oif rebellione, troasone, and
lese mnjestie, and arr punishable by forfaulture
off lyfe, lands, and goods ; and be the eleventh
act first sessi'uie second parliament king
Charles the second, it is statute and ordained,
that in tjme coming in all cases of treasonable
ryseing ui amies, and open and manifest re-
hellione, against his majestic, his advocat ifor
the tyme may, and ought to insist against, and
prosecute snch pei-sons as he shall be ordered
be his inajcstie or his pri\ic councill lo {lersue;
and iff the^ be cited and doe not compear, the
justices, notwithstanding of iher abs4'nces, may
and ought to proceed to consider and give tlicr
iiitcilocutor upon the lyhcll, and iff it bv. found
* Tiic same names appear in different places
lo hi' didcTenlly spelled in the originals.
It is not al\va\'s easy to decypher the MS.
Where blank spaces appear in this text ihc-y
occur in the originals.
for High Treason.
lir Dancan Campbell and Archibald
ell, and liaill remanent {lersons above
hare comitted the cryines and paines
li treaaone, rebeUione, and lease ma-
nd ar actors airt and pairt theroff, which
)uml by ane assyse, ttiey ought to be
nI with lyt'e, lands, and goods, to tlie
,nd example off others to committ the
irefter.
Uipettie^sAdvocai produced the criminal
with the executions theroff, duly exe-
id indorsit against the saids deicndera,
nearest of kine of such of them as ar
y a puraevant and trumpeter, with dis-
coat, sound of trumpett, oppen piocla-
i, and useingother solieinnitics necessar ;
red lykwayes Patrick Wilsone Carrick
ot executor of the saids letters with
I Hoome pursevant and Alcx-
I'Naughtoune, indwaller in Edinburgh ;
L^lle Chapman, iu Leith ; James Keilo,
er, in Edinburgh ; James Leith, coach-
rounger; and John Goodwillie, trum-
bis witness, and being solemn! ie sworne
»ce of the justices and assyse made faith
« truth and Teritie off the samen in all
MajeslicU Advocat l^kways produced
of his majestie's pri?ic council 1 for per-
the persons ly belled, wberoff the ten-
)ws:
Edinburgh, September 11, 1685.
Lords of the cumittc of his majes-
'ivie counriU for publict affairs, doe
gi?e order and warrand to his ma-
ul vocat for processing befor tiic jus-
lir Duncan Campbell, off Auchin-
■ Campbell, off Barhreok ;
mpbell, of Knap ; and all otlicr persons
informed to have been engad;;ed with
in the laite rebelliouc, befor the lord
^nerall, justice clerk, and rnnnnent
sioiiers of justiciarie, upon the head off
.' and rebeliinne, and pioviously to cxa-
Ittuesses therranent befor the saids
•nfornic to his mnjcstios letter. Ex-
by me. Sic Suhcrifii/ur^
CoLUNE M*Kenzie, CI. St. Con.
laill persona insisted against by his ma-
adfocate, 7)rfV/io /oco, ffor thor ibrfanl-
his dyctt li«)llow : sir Duncan Cninphell,
linbreck ; Donald Campbt^ll, oiF liur-
3Jr. Archibald C!umpbell, .son to ihe
li Campbell ; John CamplK-tl, younger,
fort; John Cambell, of Knap; Air.
er Campbell, advocat ; l)ug:ill Cain-
ff Kilberry, younger; Alexander
in, off Drumoir ; Donald M-Neili, of
Duncan Campliell, off Carridell ; Alox-
ampbcll, off Oatler ; Major
one ; captaiuv John Foulcrloiino ; Mr.
Wishart, preacher; Air. Alexander
; Robert Elphingstouno, olf Lapncs ;
i John Henry ; Patrick Campbell, sone
Jobo CmBi£>bell, called Black Patrick ;
A. D. 1G88.
FTM
Patrick M<Arthur, off Inchrenie, John M< 11-
bernock, of Oab, Jver M^Iver alias Campbell,
off Asknish ; Dugall M^Tavish, off Dunardre ;
Neill Campbell, off £?narchan; * ■ -
Campbell, of KilMavin ; Kerr, dS
Kersland, younger ; ■ Fley meing ; John
Jamesone, in Borrowstonnes ; John Campbell^
off Dargashie ; Robert Campbell, his brother;
Alexander M'Arthur, captaiue to the late Ar-
gyle ; John Roger, guner, sometyme in Bor^-
rowstoones; and Walter Brown. His m^-
jeslie's advocat declares he insists against the
fornamed persons for their being in rebellione
with the late Argy Ie in maner mentioned in their
dittay. And the saiils haill fornamed persons, as
also Mr. Thomas Forrester, minister ; John
Guthrie, Alexander Campbell, off Sonnachan;
John Nisliitt ; and Donald M' Ilvernick, of Ard-
mabrick ; being oft tymesi called to have com<>
peired befor the saids lords this day and place
m the hour of canse, to have underly en the law
for the treason above specified, mentioned ia
ther dittay, as they who wer lawfullie for
that effect lawfull tyme of day bidden, and
they nor non of them comiieired. The lords jus-
tice general! and justice clerk, and remanent
commissioners of iusticiarie, therfor be the
mouth of John M'Kenzie, macer to the court,
decerned and adjudged the haill fornamed per-
sons to be ontlyes and fugitives from his raa-
jestie^s lawes, and ordained them to be put to
the home, and all ther moveable goods and
gear to be escheat and inbrought to his ma*
jeslic'suse, for ther contempt and disobedience,
which was pronounced for doome.
Interloquitor.
The Lords, conforme.to the tenor t)ff the for*
said elcvent act, first sessione, second |»arlia-
ment king Charles the tiJecond, did proceed to
consider and give ther Interlocutor upon the
lybel against the persons insisted against,
wheroff the tenor ffoik^wes : — ^The Lords Jus-
lice Cenerall, Justice Clerk, and Commission-
ers off Justiciarie, haveing considered tlie ly-
l»cll pcrsowed by his majestie's advocat against
the |>ersons alime named, with his majestie's
ailvfirates declaration, wherby he rettncts the
lybell in ther being in the reheltione with the
late Argyle relivant, and reraitts the samen t»
the knowledge of ane Assyse.
AssisA.
Sir Wm. Hop, off Grantoun;
Francis Ross, off Auchlossio ;
Robert Hcpburne, off Barfoord ;
John Skeen, off Hallyairds ;
Alexander llenrysone, off Newhavin;
Sir Wm. Moray, of Newtounc ;
Sir John Ramsay, off Why thill ;
Sir Jas. Riichardsone, off Smittoune;
Walter Scrot, of Lethan ;
David llepburne, of Randefoord ;
Patrick Skir%ine, of St. Kaitliernf ;
James Kerr, Barber ;
Joh:i Lindsay, Merlchand ;
-William Browne, Baxter;
James Bickertouoe, Wright
«l]
fl JAMES n. Proceedings 4ffma Sir D. Campbell and oAe
Whe Amy^ ]Awrullie«wonie, ao oUigadOM off
4iw in l£e contrair.
His A[ajeUie*t Advocate fw jMrobalioqe ad-
minced the wittnesaes, efter depaoii^, who wer
jiil lawl'iillie sivorne, purged off malioe, pr^u-
4ioe, iU-\iill, bataac), aod j;iartiaU oounoiil, -tliey
aretoaaj-:
Duncan Campbell, younger, off Allangreig,
aged tweotie- eight yean, or tberiiy, marrieil,
.pureed aod swome, depons, That ^e did see
air Duoean Oainubdl, off Anehinbreck, in com-
.pany with Anrbioaid laite eaile off Argyle, and
witli the oiher rebel Is, in June last ; and that
be did see him in armesy^nd particularlie at
■Tarbit, and tlie castle ot"" Allaiigrde ; depons
'that he did see Donald Campbell, offBarbneck,
in company with the saids rebells, i« jirroes at
Tarfiat; depones he saw Mr. ArchbaldCamp-
beli, sone' to the lord Neill Campbell, armed
with a sword, with the rebells at Tarlwt, and
4hat he did see John Campliell, younger, off
^elforty in company with the ribefls, and lyk-
Vays sawe Campbell, of Knap, in cora-
jiany with the rebells, in armes at the place ;
depones, he saw Mr. Alexander C^impbnl, ad-
Tocat, in company with the rebells, in armes at
Tarbat; depones he saw Dugall Cambell, of
fUUberry ; Alexander McMillan, off Dunmoir ;
Donald M'Ncill, of Creir ; Duncan Campbell,
off Carridell *, Alexander Campbell, of Ottar ;
Captaine John Fouiertoone ; llobert Elpbins-
tounoy of Lapnes ; Pattrick Campbell, called
Black Patrick, soiie to Mr. John Campbell ;
Jubu M'Artnre, of Inshrciiie; Archibald M^II-
Tfiriiocli, of Oab; JverM'lver, allias Camp-
bell, off Aishneitkb ; Dugall M^Avisli, off Dru-
nanirie ; Neill CamMl, off J'^unachaii ;
Campliell, off KilUleviu ; Ker, of Kers-
wald, younger; John Campbell, off Darga-
shie ; aud Robeit Campbell, his brother ;
Alexander M*Arturc, captuiiie to the laite Ar-
gyle ; all off them in company with the late
Arg>lc, auil the other rebells, in armes, in June
last, in the West ]Iighlands ; particularlie some
cK them he sawe at Turbat, and the rest off
them with Allangreig, cauia patet ; for be was
present and saw what he has deponed, aud
lliis is tbe truth as he shall answer to God ;
depones he knowcs the haill persons above
named. (Signed) Duncan Campbell.
LiNLmiGOw, I. P. D. Com.
Duncan Campbell, elder, off Allangreig, aged
fifiie-six years, or therby, maried, purj^ and
sworne, fle[ioncs that he sawe sir Duncan Camp-
bell, off Auchinbreck; Donahl Cambell, off
Barbrcck ; Mr. Archibald Cambell, sone to the
lord Neill Cambell; John Campbell, younger,
off Mellbrt; John Cambell, of Knap; Mr.
Alexander Cambell, adrucat; Duncan Camp-
bell, of Kilberry, younger ; Alexander McMil-
lan, off Drumoir; DenaM McNeill, off
Crier ; Duncan Campbell, of Carriddl ; Alex-
ander Campbell off Oatter ; Major
Henrysone; captaine John Foulertoune ; Mr.
(jcorg Wisbart; Mr.AlexABderHMstiej R«bert
ElphiilMDc, off Lapnes; cafrtaiBeJcfl
Patrick Cambell, calM Blaek PMrk
Mr. Jobn Campboll; Ptelriok M'i
Inchretiy; Ivor M4ver, nUiaa-Oan
Asbnish; Dueall M'Anab, «ff 1
Neill CampbelT, off Eonaehan ; Jo
bell of JLildalivine ; Kerr, off
voDog^r; JolmCanpbell, off Dares
bert Cambell, his brother ; aM
M^Arture, captaine to tbe laite Argyl
them in armes, with ArcfabaM late «
cyle, and with tbe rest off tbe rebell
bat ; and att aereraU other places, ii
highlands, tbe tyme ly belled; dene
ander N*Artur was captaine off tbe
Allangreig, which Argyle keept out i
king, cauta tecuritate [poaaibly fCM
sawe as be heir deponed ; and thui a
as be shall answer to God,
Sic SubicribUur, Collcc Ca
LdMLimoowy 1. P. I
Archbald M^ibban, in Cowall,
dewell parocb, aged 46 years, «
maryed, purged, sworn ; depons be \
Duncan Campbell, off Anehinbreck
Cambell, of Barbrrck; Mr. Arcbbs
bell, sone to tbe lonl Neill Campbc
CampbelF, younger, off Melfort; ^—
boll, of Knap ; Mr. Alexander Cam
▼ocat; Du^IICampbell, off Kilberry,
Alexander M*Millan, off Drummoir
McNeill, off Crier; Duncan Campbe!
ridell ; Alexander Campbell, off Date
Ilenrysone; Fuulertoune, wl
captaine ; Mr. Alexander Haislie ;
Cambell called Black Patrick, son
John Campbell ; Patrick M'Arture, <]
nie ; Archbald M'llvernock, off (J
M*Iver, allias Campbell, off Ashuisb
MMvish, off Dunardric ; Neill Car
Kuuachan ; John Cambell, off Ki
John Campbell off Dnrgabhie ; Hul
bell, his brother ; all of them in
with Archibald laite earle of Argyle,
rebells, in armes in Gleudewill, *in t
June last ; and this is the truth, a!
answer to God. Archibald M'(
LiNLnnGow, 1. P. D.
William Stcvinsone, seaman, in
stouues, aged aughtein yeares, i
pulled and sworne ; depons, that he i
in the ship called the Anna, with tbe
off Argyle, and the other rebells in
pany, and that ther came alongst n
HI tlic ship captaine John Henry,
mate to the shipe; Mr. Georg
Kone to Mr. William Wishart, mi
Kioneill ; Mr. Alexander Haistie, a ]
Major Henrysoiit; John Rodg
tyme in Borroustounes ; Walter
cnuper, in Kincanlin, on the north
Forth; John Jamesooc, in Bom
whom he thinks did dwell in Ike ft
* InprsesentiaJloimBMiuiij
Oram.
^ High Trensom,
wlien Ai^lc tftDtljt, 90fne oirUn?ni tanded wiih
liiin to sctW him Uy laiiit^ oixl lt>« rest keep«U
the shififi ; Mud tliit if the tnUb, as he shuti an-
surer la Go<i cauiA.
Sk Sitb§€rihiiur, William Stevi^nstoke*
LiKUTH(H)tv, I. P,D. Com*
Arckbaid Camphlt, ofl^Datm, aq^ed 29 ycnrs,
ortli^by, i«*rVfd, jiurgc*! iind sworn, depones
h€ dill see sir Duncan Cam|i1»t]l| off Aticbin-
brvcis ; Dvri ■ '' itt>€ll, oiF Barbreck ; Mr.
ArchidTild 1 neto the Inrd Neill Cam-
bcl!;J'»lnidiii|Hirii, >oirnger^ofr,Me1forl; JolxD
Camphell, oftKtiatirMr. A lexnnikr Campbell,
adrocA^ D»HjnM CamjiMI, of Kilberi \% jr.;
Aiexinder 31*MUba, off Drumoir ; *Doija!il
H'Neill, off Cri^r ; Diincaa CamplwH, off
ttrrid^ll : Alexander Campbell, off Oiitler ;
Major Hcnry!»anc; captiine Jt>hn Foukrtoune ;
Robert El{*tiiuc:»»ouf)e, off Lapaes ; Patrick
Cuinbeti called Black Patrick, sotie to Mr,
Jolin CawiptK-U ; M*Artur, off Incbrenie \
AlexaMrr !>Mlverno€k, off Oab ; Iver M*lvtr
all r ; !idl,off Arsboish ; DuffaU M'Avish,
«it ne ; Neill Cariibell, off Eunachan j
John tnupix'll, off Killilahine ; John Camp-
Wl, off Djirifashie ; Ilobert Cnmjiliell, his
bff '^' ' ' 'Mil, Alexander M^Arture, captatnc off
h\ , under Arsryle ; and all off them in
[\i llie laite'Argylo, and the other
t\\^t »tl Tai halt and all \{m way they ivent
|6 last ; and this i^ the truth a« he shall
i to God.
iHcrihitur^ Arcudald Cakbell.
LDiLFTBcow, I. P. J>. Com.
lit M^Ittr^ in , in Glasric parish,
lonrtie vears, or therby^ nia;rif.4l, piir^^ed
e, deponent he did see Maj<w Hen-
ryvoiiein company with therrbells, in Jimelast,
ill Af|fylc shvre, in Cowall, tnanneF, on horse
tuiclc t and lh» is the truth, a«i he shall ansiver
^ G^ ; Depones be caimot wreitL
LiNUTHcow, L P, D. Com.
^f'^Gibhon^m Kilhnichael Jo Cowan,
Lii^s, unmarried, pur^edand s«vorn(^,
he did sec captaiuf Jrihn Henrysonp,
_ ilb Arg-yle^ and llie other rebel Is, alt
o<*h-head, and all allong's uiih the rebells
last, and lykewajes that be did see
John Hrorysooe in armes with the said
atl alloncpi ; and als^» he did see ca|»-
Fimlkrtoune, and Campbell,
IKilldalf ine, all allougjil in arme^ ^viih the
' t rebdU ill June lost ; and this is the truiii
\ lie shall answer to God.
^ic SubicnbUur^ DttQALL M 'Gibon,
LwLrrriGow, L P. D. Com.
Slier leading and adduoelogf off the qUk pro-
ne, the lords onlaines the assyseto inclose,
; Iber rerdktto HMHTOir'at two o'ehiek
il. D; 1688.
[7»-
^liftfila h»ir**intr frtn^ulf nil tln^ scTerall
I af council! | f Collin
IkfOffBlni I ! ^ ampb«llf
tiiw; Aficbibiiid OuDpbell^ ultDaaa^ Af^
chibAld CafnpML of Aucblimmr % Archibak
C*ampbeU brother lo Dargvsliie, defricfned in
the act of couDdlt in Auchinbreck ; Donald
Camplieil, also brother to D»n[ra^hie.
^i^fOfd in the act off cotineill in Stroudavin ;
with ane act off the Leivtf?neiit cotirt of Arpryt
andTarbaf, reJaicinf|' to ane act off coonctirin
favours off Hugh Campbell^ anc other brotlieii
off Dargashtes, desifjcaed in the forc*soid act in
Airdtarish, ii]«on the cleariotf' off q'lk designa
tioue ther wes wittiurss swome ; they for tb»
causs and eon si derations nien1ione<] in the saitf^
acts, with consent off his niajesties ad? ocat ex- *
coses tber abstnce, ami continew the dyet
against Hugh Cainpl>ell till the twelt instam-J
and aj^ainst the hiiill other persons till the finst
i\:\y ot^ February ni.tt to oi>tiie. And ako, *^ itU '
consent off his majesties advocat, continews the
rlyett against Donald Campbell, of Eafnahie,
who is an islamaii, and wns not citled aithcr
pergonallie or at his d walling^ house, and ag^uinsf >
whom ther is no sufficient prohutione, tillttie'
said first day of February nixt to come, and ez« '
ctises his alienee.
Tlie Lonls conti newest thed yet as to tlie for«
fanltures off Mr. Thomas Forrester, minister ;
John Guthrie ; Alexander Campbell^ off Bona*
clian ; John Nisl^ett and Donald M'ltTcrnick, j
off Ardmabreck ; and the deceast Dugall Camp-
belli off Auchtcrharle, till Miinday nixt, and]
lykwayes Alexander Forrester, off Koock-^
reocldicgf ; till the said dvet.
The said day anent t\ic criminal proces ofl
treasooe persewed at the instance off sir Gorg^J
M'Kcnzie, off Rosebaugh, his fi«ij est ie's ad -
vocat, against the deceast Du^l I Campliefl ■
designed off Atighterhnrlie, and his nearest o|
kine, for his interest, for hisbetngaccessoriis^
to or engaijed in the late reliellione with Arch*
baid sometyme earfe of Argyle, io manner nieu« j
lioned in the dlttay» compeirand his roajestie*9{
[advocate] for his* interest as persewer on the]
one pairt, and on the other pairt compeiredl
Iver M'lver allia* Campbell, brother and near*?
est off kine off the said defunct, with Mr. Collin
M'Kcuzie, advocat, hts procurator, and gave
in a (ictitione to the sai«k lords, represcniing*
and declareiug that his ehlcst brother, John ]
Campbell, was the unconlrarerted heritor and j
proprietor off the hiudii off Auchlerharlie, rx-
tending to a merk Uinil holden off the lafe Ar*
ejle, and haveing laiily dye<i immeiHately be-
for the rubellione, without aires off his own# i
body, bis second hrollier, who ii now lyke-^
way es dead, is indytcd to this dyet^ and tho'l
petitioner is as nearest of kine cUted fi*r his in- .
terest, and since the said Dngall bis secoiiil 1
brother was nether infeO, seasit, nor in ma* '
sessione of the said estaite, and that the relieU j
lione fidlowed imefliatly eftcr his eldest brd*
thers decease, and that he himself, whoM
la we is uncomi*nverte<lfie to succcecJ lo hn
eldest brother wuo dyed ln5»t, rest and seascil,
is a loyal mthI Imu ,i suhipot, and was actuallie
in bis nil as by a cerlificate^"
nnder the ti ck Stewart, ttff BtiT*^
< lachsDy cgcDOflMkr ' tlT the* nuffiui^rt
t
799]
1 JAMES II.
Proceedings agai}:\!
tirst regiment, and daited the fy tli day off De-
cember last was instructed, therfor he craved
that since tlio his said brother were guihie, yet
that his forfuulture could produce nothing to
liis majestie, he huveing nothing in his iier^one'
hut mirrhttend to the prejudice off the peti-
tioner ane honest and loyall subject. That thrr
lo'ps would onlaine ther name to be delete out
oft* the sumouds and sist all larder prouedur
against him.
The lords justice general! and justice clerk,
and commissioners off justiciarie, haTeingcon-
<i(lere<l the said petiiione and disyre thernf,
•lelav to give answer therto, but remitt the-
civil! interest to the judge ordinar as accords.
Januarys, 16B7.
The pcr^ns who past uf*on the Ass^'sim .•
the An^ylc heritors Returned ther Venlict .
presence' oflT the saids lords^ wherofl*tbe tcii
I'allowes :
Tlie A^yse haveing elected and choscsi
John Hamsay above designed chancd:
tlicy all in on voice ffind sir Duncan Cam
oft* Auchinbreck ; Donald Canipbel], oU
brock ; Mr. Archibald Campbell, sonc
lord Neill Campbell; John Canipl>e1l, \"
oH' MelloH ; John Campbell, of Kii:.;
Alexander CampMI, advocat ; Dtii;:.!'
bell, of Kill berry ; Mr. Alexander 91-'
Dumoir; Donald M*Neill, off Crier •
Campbell, ofl' Carridell ; Alexander »
offOattcr; major Ilcnryso:'
John Foiilcrtouiie ; Mr. Cieo*.
preacher; Mr. Alexander Ilcasti«
jdiistoune, oin^apnes; captainc
Fatrick Campbell, sone to Mr. .1
called BUick Patrick; ratiif!.
Inchrcnie ; Archibald M*llv« .
Iver M^Iver alias Campln-
Diioall M'Avish, oif Dunan
bell, off Kvnaehan ; i
dill vine ; Kerr, off K-
('ani|il)ell, off Dargashie :
his brollier ; .ilexander !M
the laile ArgyU*, (luiltit' •
trcasone and rebt'llione l\
ill respci'tthey find thesii.
viiic, and lykwayes lis
John Jamc>son, in l>
Uoil;jiT, (gunner, s<imet\ i-
aii'd Waller Browne, eh*
not guiltie ; in rcspfct *
probatione led against '
wherof this' our veni-
named sir John Hnm*--
bnri^b, the fburth day •
Sic SnOscribiluri
The Tx)rds justice v. •
commissioners oft'juM
tlie vt'nhct oft' a^sysv
sir Dmu'ai) Campbi'l
nutd Canipbell, off I
liamplitll, sone tt» i ^^^^
Julni i-amplifll, yois ' ^^,^,^,0-^
C>mpbcU, ofl' Kuapi
youii-, •
off V
Diii:-.-
CauMil"
r-ijii .•>:••
\\ish:..-
J.::!: .
t r .'■
IV:.
'•■!
{ •
Ml]
fvt High Treason.
A. D. 1696.
[8n«
Che samen \n recordit upon the ffourtli uf Jan-
uary instant.
P^r JCBW— Sir Georg M'Kenzit, of Ros-
hau|^li, bit mi^iflgtie's ml?ocat.
His majestic*s advocat dccbires be insists
a^inst the paunall flTor joynein^ with the hite
earle of Argyle in inaner mentioned in hiscon-
lessione.
The lords fQuds the dittay roliTant as thr
same is foundit on bis confessione, and remiiUj
the same to the knowledge off an assj'se.
ASSISA.
Sir William H))pe, of Grantoune.
Francis Ross, of Aucblossin.
Robert Ifepurnc, of Bairford.
John Skeen, of Halyairds.
Alex. Henderson, ot Newha^en.
Sir Wm. Murray, of Newtowne.
Sir John Kamsav, of Why thill.
l4'alter Scot, of Letham.
David Hepbnm, of Randerstonn.
Andrew Ker, glofer.
Flitrick Skinrine, of St Katherini.
Janses Ker, barber,
jfobn Lindsay, merchand.
William Browne, baxter.
James Backertoune, wright.
Ti^e Assyse lawfuUie swornc ; no objectione
in the eootrair.
His Maje$tie*s Advocat for probatione ad-
duced the pannell's owne Confessione and the
witnesses efter named, wheroff the tenour fol-
lowes:
Edinburgh, Janwary 11, 1686.
Id presence of the justices and assyse, Col-
lin Cambell, elder, off Allangreig, being exa-
mined, confesses. That he uas present with
the late earle of Argyle and the other rebells in
May and June last, m Argyle, Bute, and Tar-
bat, and seTerall other places, and that he hade
a carrabine, and declares he is heartilie sorrie,
and kiees God and his majcstie panloune there-
for, and that he never hade designe off rebel -
Kone against the king's majestie, but was
abnsed and misled by bis chieflfthe lat Argyle.
Sk Snbscribitur, Collin Campbell. —
James Ftbulit, J. Lockhart, Dafid
Balfour, Roger Hoge, Alexander Seat-
toune, Pattrick Lyone.
LiNLmioow.
Arckbald M^Gibbone, in the paroch of
Glendewell, aged 46 or therby, man-ied, purg-
ed, and ewome, depones he saw Collin Camp-
belly off Allangreig, elder, in company with
the late Argyle, and the other rebeiis within
the isle of Bute, in June last, walking up and
downe and conrersing with them ; depones he
did not see him have armes ; and tins is the
truth as be shall answer to Gud.
Sk Subtcribitur^ Archbald M'Gibcon.
Hertor M^Gibbon^ in Cowall, ajrpd 26, or
therby, nnmarried, purged and sworne, de-
VOL. Xllf.
pones he saw CoUine Campbell, off Allangreig«
elder, in company with the late Argyle and the
other rebells, within the isle of Bute, in Juna
last, walking up and downe conversing with
them, but remembers not iff he hade any
armes ; and this is the truth as he shall answer
to God.
Sic Subscribitur, IIsctoR M'GiBBON.
LiNLrrHGow, 1. P. D. Com.
The Lonis ordaincs the assyse to inclose and
to returnc ther verdict the morrow at twelve &-
clock.
The Lords having considred ane act of coun-
cill presented for Alexander Forrester, off
Knock reocbbeg, they with his owne and his
roajestie's advocats consent continew the dyet
against him ffor his alleadged acccssione to the
late Argyll's rebellione till the last Munday^ off
March nixt, and ordaines him to find cautione
ffor his appearance at that dyett, and therfor
grants him letters off exculpatione ffor preveing
his defenss against the said day.
The Lords continew the criminall actione
and cause depending at his majestie's aidvocata
instance agamst Mr. Thomas Forrester, mi-
nister ; John Gutlirie ; Alexander Campbell, of
Sonachan; JohnNisbitt; Dugall M'll-
vernock, off Ardmacbreck ; the deceast Dugall
Campbell, off Auchterharlie ; ffor ther al-
leadged accessione to the late Argyll's rebel-
lione, till the last Munday off March nizt.
January 13<A, 1686.
The Persons who past upon the Assyse of
Colline Campbell, of Allangreg, elder, returned
ther Verdict m presence of the lords, wherof the
tenor followes :
The Assyse having unanimously elected sir
John Ramsay, off Whythill, ther chancelar,
flinds Collin Campbell, elder, of Allangreg, by
bis own judiciall confessione, guiltv off being
present with the late Argyle ancf the other
rebells, in May and June last, in Argyle, Bute,
Tarbat, and severall other places, and that he
hade a carrabine, and off conversing with the
tbrsaids rebells in Bute, in regaird they find
the same sufficiently provui, they purged witt-
nesses: in verficatione wherof, this our ver-
dict written be Walter Scot, of Letham, is sub-
scry bit be the above-named chancellour at
Edmburgh, the eleventh day off January, 1686
yeares.
Sic Subscribitur^ John Ramsay, Chan.
The Lorils continew the pronunceing off doom
and sentence against the said Collin Campbell,
ofi' Allangreig, elder, till Munday nixt
Intra n*
Hugh Campbell, brother to John Campbell,
of Dargashie,indyted and accused ffor ryseing
and joyneing in arms and oppen rebellion with
Archbald sometyme earle off Argyle, and other
rt'belU and traitors, in the moneth off May and
June last, in maner mentioned in his dittay.
Persewer, — Ilis Majestie's Advocat.
Procurator in Defence, — ^Mr.Johu Stewart.
SF
807]
1 JAMES II. Proceedings against Sir D. Campbell and others^ [EM
majestie's sobjects, or any Dumber oflT them,
the joyneing aud assembliny^ tofj^ther in armes
without or cootrarj^ to his majestie*8 command,
warrand or authoritie, and the abaitteing, as-
sistcing. receptingf, intercomoneinif, or keeiiing
corrcsipondence with Kuch rebells, siipl ycing of
them with* help, red or councill, or'i^iveiiig
them ravatt or drink, or any releiflfe or confort,
or the not searchiiigf fur or aprehendinsf off
them, or not ex(»ellin:; off thciu fiirth off the
country, or not ^ivein^c ty meoiis intelligence off
them tor that effect, ar most detestable, horrid,
hynous, ani abominable crymcs of rebellione,
treasone, an<l lose majestie, and ar nunishuble
by furfaulture off lyfp, land and ^rwnh ; and be
the eleventh act first sessinne off the Sfcnuii
parliament of kinQr Charles the second, it is sta-
tute and ordained, that io tyme comeinsr* in all
cases of treasonable ryseinpr in armes and oppen
and maniffst rebellione at^ainst the kini;*8 ma-
jestic, his atlvocat ffor the tyme may andousfht
to insist against nnd present such persons as he
shall l>e ordered be liis mnjcstie or his privie
councill to pcrseiv, and if they be cited and doe
not compeir, his majesties justices, notwith-
standini; off ther alisf nee, may and ou^^ht to
proceed to consider an<l give their interloquitor
upon the lyhell, and iff it be fcumd relivant to
iidniitt the' same to the knowledge off the as-
\VH<s and upon the verdict off the inquest ftiud-
i.'ig the sauit; to be proviiie,tlie dooine uml sen-
lanee off forfaulter <Hiuht to proceed, and be
given and pi-onunced in the same maner as iff
the persons accu>ied hade comprnred and were
pn'sent. Nrveitln l«*.ss, it is off \ciiiie, that the
saiils Donald, Arrliiliald, Collin, and Duncan
Campbells and tht* oilier persons above rom-
pliaiK'd upone, Kliarki-inif off a!l fear of (Jdd.
respect and re/aiid to I/ik niaii'.stie's aiillioritv
and lanes, lr»\e |Mr^iiiiied to eomioitt, and ;;V
umlty olf iho saiils er\ n»rs, i.i sua fair as tin r
l»ein:^ in the year \u'.)V,^ ant: lit-liisli and damna-
ble plolt and eorispiraeie, enteied in^o hu tl.c
late earles oil* Sliaftshimie, Ksst x, Aif^yle and
othi Ts, i,'..v*l!s and traitor^, siibjeels %\\\ ii;i;
kin;«tl.inu' a:id eii' Kdl'-I.im.I, Hor hi!Il. 'i* .<j:.i
nuiid< rinu, at h.ivl >: ir/cd npcii his s:u".e'l i.i-i-
jeslici's pfisnii ainl his i(>ya!l iuolliLr, llier luTe
graei<)ns s )Vfraii,i- kin-.V i'liaiivN tlie yvr\;iiil,
and for r.>.iMMiiLr (ii.i:.-M v.arr aad i< lyi'lll.m in
both kin:;ilcii;!s,a:id Um- iii; ni.^l.J!)^" tiu n,nni.:'\v,
s;hi|)s and arnu s. to the h-.te eaiiL «i' Art Oe for
thitt etfcet ; atid aer»inliniil;:\ t!;e saiJ laili-
f arle (iff \iLr\ le ant! seviriJI (»tti.- ..., i< :;i';U aud
traitors, uitli him, diil ini»t lreas(i..ahii.' iow.ile
this ills iiia;« siie's ancient l;;nj;donK\ uiih iij»-n.
.ships, ainus, and ainoniltone, and iaii.lt.l uiih
tin ui in the west hiohIan«!s oif Seoih»n»!, npon
the day (»ff >Jay, loJio years ; and i!.»
sotiner hade they landit,*ilK n the saids l)w..aM.
Arehihahl, C'olline, and Dunean Cani|.heils,
an<l the haill remanent per^oiis above enni-
pleaiied npon, rose aud joy netl iu open amies
and rebeliiiMie, and did convocat and jjuthcr
tojjpther his majt stie's Uidges to the nundwr
off ffi.nr or ffyve thousand men, within the
shyrcs off Argyle, Tarbat, highlands, and isles
therabout, in oppen rebellion agviust bis ma-
jeslie and his authority, and did issue fuith
treasonable declarations and proclamations, and
did take in and maintaiue forts, strengths, and
garrisons, against his majestie and h» furce>,
did robb aud plund«T the goods and^ houss off
bis majestie's good subjects, randerouzed aaJ
exercised themselves, did scoutt furth, kil! and
murder severall of his majestie's good snljecbi
and souldiours, and did continew, in open aud
avowed rebellione against his mujeslie and his
authoritie, comiitriog all acts off hostillitie and
liii^h treasune, untill they were disipate and
(!e:rat ; nnd the saids hadi fornamed persnoc,
did treasonabliu harbour, recrpt, iuiercoiiiOD,
converjse and corres(K)nd with, did abaite, as-
si*.t, suplie, \(\\t help, redil, councill, nieatl,
drink, rL'leihe, aud confort, to the said laite
carle off Argyle, sir John Cochran, sometime
olf Ochiitrie ; sir Patrick Fhnne, off Pollwort;
William Denholme,uff Westsheills; aDduiben,
fortaulted anil di;claretl traitors, in company
with him in the saids inoneths off Nay aiu
June, 16ii5 yeares, within the saids M'ositre
highlands and isles, di<l not exact dilligpocr ia
searching and aprehending off them, and ex-
pelliug off them furlh off the countrey, Mr
gave uot tymiMuis notice nur intelligence to aor
miiiistei-s or officers ffor that effect, throne the
d:>eir.g and committing wheroffor oneorotlKr
of the snids deeds, the s:iids Donald, Arcfahild,
Cohiii, and Duncan Camnbells, and tbeotber
IM'rsons above complcaned U|ion, have con-
initted the crynus and incurred the painnaf
hii»h treason/ rebellion, and l» so majestie, ami
ar uetor airt and paiit theroif, which briog
foniid be nne a>s\se, they onght t<» be puaisM
vviih lyfe, land-s', aud goads, to the teircw and
<'\anijd(; off iniit rs lo coniil the lyke heirefirf;
ComjH'ired th<? saids sir RoiirrrColt ami Mr
(>L(iii>f l)an:uiuian, his majestie's srdicitu'S. as
pei-euc:s, and produce*! tlio lori-jiitls rrimiual
leltrrs (!c:\v1m! execute ^nd indor*-it agaicst lb?
hn!': pei»;)t'> dcfcinle; j, an«l a^;li!l^t tlit nearwt
(Jii" Ki;ie to t!ir> »;aid dtceasl J>ona!d rnui|»lifl>
yc.uu-ti, o:r Druintiiir, hy a pursev.vnt diid
tiuiiipeltrr, uiili his majestie's coat oir«rft>e*
iIi-:,l;.\Ml, . • i.d eif trumpet!, open prociaiua-
liiij. ii:id i:- ii»'^* oilu-r solemnities ntrfs^iar-
C'o.o|»i\r,:d !;. Ixuiiyes Pal.::*',; AVjUonr, Car-
riek purs n: ■:, executor <»ti' the saiils lii'.fr*,
N« !I AlNti.i. Milter, in K(iinhu:gh; J«'li3
I?: i.^las ;:.'.«1 ,lames Kelle, rtsidentirs tlicfv;
Ju'-.jts .""i^'liaM-dn and James Fergusone, «ir-
\itrist.) t'atiiiU Stewart, off IJalaeJian, wilin'tf
il:»rio, i.'.id lH.ini»" snienmlie sworn<; in pifscijcc
«:.'!' the jnsliees -..ntl ass\serssitland in ju'L'incnl
made laith upon the truth and veiilie olf tliC
san.en in all poiuis. His majeMie's [stiliritorsj
pHMlnced ane act of privie conneill, »»nininjf
theui to perse w a proees off fforfiiultnr asja^o**
the persons above named, wheroff the teas*'
folluvts:
KniNCLRC.u, September 16, 1036.
The Lords of his majestie's privie coiioo*
being iuformed that the |)eraons uiulcr writteOf
far High Treasofi.
oM Campbell, of Oab ; Archibald
II, off Daaa; CoHin Campbell, of
btrt ; DiincaD Campbell, off Cullgra-
k»oald Caropl>ell, of Belloabie ; Dud-
mpbell, off Drumfme; and Donald
II, bis sone ; Aoo^iis Campbell, of Dal-
Jobn CaropbelT, off Ul?a; Ang^us
blan, off Barnagad ; and Alland
hlao, off Dcmade, were actually in, or
ie to, or airt or pairt off the late Ar-
bellionc, doe therlor heirby give order
rraod to his majestie's sollicitora, with
ence to persewe a proces off forefalture
the aaiiU persons before the lords
iiooers of his majestie's justiciary for
les foresaid, and that at the publick
and take recognitione if the witnesses
in. Extracted by me,
William PAiTEBiONE, Clk. Sci. Cli.
(eared the said Duncan Campbell, of
, and Donald Campbell, of Balnabe;
M*Lauchlan, of Balnagado ; Allan
:hlane, off Dunade, defenders, and en-
lemselres in pannel and humblie and
slie confrst their guiltines of the crymes
ipecified in manner after mentioned ;
said Archibald Campbell, of Danna ;
Canrij)bell, off Blairintibert ; Duncan
!ll, off Dramfunie; Angus Campbell,
9ut ; John Campbell* of Ulva ; being
es called to have compaired before the
ords, this day and place, in the hour
e.to have underlyen the law for the
alMve spcoitied,and the saids defenders
nearest of kine of the decease<l Do-
impbell, off Dramfunie, to have iciren
defences against the lybell, and objec-
ainst the witnesses and assysors, if they
I, lawful tyme €ff day bidden, and none
compearaod, the saidn Lords therefore,
mouth of John IV]*Kenzie, macer of
leoeroetl and adjudged the said Archi-
sllin, Angus, and John Campl>ells, to
meed our sovereigne Lord's rebells, and
the horn, and all their moveables,
ind gear, to be escheat and inbrought
Dajestie's use, for their being outlaws
ptives from the laws for the crimes
lecifyed ; thereafter the saids I^rds did
to consider and give their Interlocutor
e lybell, whereof the tenor follows:
lords justice general, justice clerk,
imissioners off justiciary, having con-
the lybell ftersewed be his majesties so-
igaiost Donald Campbell, of Balnabie ;
Id Campbell, of Danna ; Duncan Camp-
r.^ulgatro ; the deceased Donald Camp-
Drurofnne ; Angus M^Lauchlane off
id ; Allan M'Lachlane, off Dunade ;
'ambell off Blairintibert ; ^against whom
estiea sollicitors <lifl insist in the first
bey find the said lybell relerant, and
tlie same to the knowledge of an assize.
AiSISA.
ii <if Mcthreii.
A. IX 1686. [810
Robert Hephume, of Bearfood.
John Muir, of Park.
Major James Murray, in Potter row.
Alexander Henrysoo, off Newhaten.
And. Cassie, of
James £llies, of Soothsyde.
John Scott, of Vogrra.
Lauohlan lirPherson.
Alexander Hunter, of Morrays.
Henry Joysie, merchant.
James Murdoch, taizlour.
Alexander Scot, stabler.
James Dykes, shoemaker,
Robert Young, wright.
Sir Robert Colt, his majestie's solidtor,
craved the dyet against Oab may be continued
'till the first Thursday off March next, and h«
put under caution for his appearance then ;
and craved as to Duncan Campbell, elder, of
Drumfunie ; Angus Campbell, of Dakout ;
and John Campbell, of Ulva ; who are da-
xslared fugitives, that the process of forfaolturs
against them may be continued to the sam*
day, which the L^rds accordingly did.
The Probation.
Duncan Campbell, of Culgatro ; Donakl
Campbell, off Belnabie; Angus M^Lauch-
lane, of Barnagad ; and Allan M'Lacblane, of
Dunade ; being interrogate what they had to
say against the lybell raisetl against them, fi>r
being in rebellion with the laite Argyle, they
judiciallie in presence of justices and assysem
humblie and ingenouslie acknowledges and
confesses thev rose and joyne<l with the late
Argyle anil the other rebells, in the highlands,
in >iay and June, 1685, conferand to the lybeU,
and humblie beggs and throwes themselves
upon his majestie's mercy.
Sic Subscribitur^
Duncan Campbell, Donald Campbell,
Angus M'Laculane, Allan M^Lachlans.
LiNLrrHGow, L P. D.
Donald McNeill, of Dallgasseck, aged
thretie-three years, married, purged, and
snom ; depones that the tyme libelled he sawe
Angus M*Laachlane, of Barnagad ; and Allan
M*Lauchlane, of Dunad ; in company with
the rebells in Argyle shire, when they were in
armes and rebellion against the king's miyestic
and his forces ; depones that he did see Collin
Campbell, of Blairintibert deliver up the
castle of Camsooth, which castle he had kecpt
as a garrison for the rebells against the king's
■forces the tyme ly belled ; and that this is we
truth as he shall answer to God ; causa seientut^
he was in tiie king's service against them, and
received the castle from Belnabie.
Sie Subscribiturj Donald M^eill.
Alexander Campbell, off in Kirkmichall
of Glastrie, aged 32 years, married, purged and
sworn, depones be did see Duncan Campliell,
of Culgatro ; Angus M'Lauchlao, of Barna-
gad ; and Allan M'Lauchlan, of Dunado ;
three of the panncls preient, and Archibald
KIIJ
1 JAMES II. ProccediJigs against Sir D, Ca-iKjibeil and other^t [915
Campbell, off Danna, tho dcceasrd Donald
Campbell, youni^rer, oflf DnimCiinli'- ; in coiii-
fmiy with the rcbclls in Argylesbire the tyme
y belled ; and this is the truth aa he shall" an-
sivcr to God ; depones he caunot uritt.
Sic SuyscribUur^ Linlithuow, I. P. J).
Anf^u$ Camphtllj of Tunnns, af<fefl fourtic
years, married, piwcfl, and sn-orne ; dopiKios
no did see Donald Campbell, of Culgatro ;
An.srns M'LachUne, of Barna<j;ad ; Allan
M^Lauchlanc, ofDunnailo, three of the paniiels
present, and Archibald Campbell, of Danna ;
and ilie deceast Donald (/ampbcll, youii<;er (df
Drumfunie ; in company with the rcijcils in
Irgyleshire the tyme lybelled ; and this is the
truth as he shall answer to (jiod ; depones he
cannot writt. Linlithgow, J. P. D.
Mr. John Campbell^ son to Baibreck, age<1
<wenty-two years, unmanieil, piirgeil, and
8Wonie; de|Kine9 that (-ollin Cumpbdl of
Blairintibert was captain of the cnstle of (^ar-
nasereth the tyme of the late Aryfvle's rebellion,
and keep! out the castle f<>r the rebells ai^ainst
the king 8 forces, and tkUer their deleate he de-
livered up the same ; ilcpunes he saw e Archi-
bald Campbell, of IMniia, in company with
the rebells, and Donahl Campbell, of Bclna-
bie ; Duncan Campbell, of Cnli^^atro ; Aureus
M'Lauchlane, of Barnagad ; Allan 31*Lauch-
lane, off Dunnado ; all of them in company
with the rebells in Arj'yh'Khire, in armcs, the
tyme lybelled ; and tbis'is the truth as he bhall
aoiiwer to God.
Sic Siibsaibilury Jons Campdi:ll.
TI'.'j liOnh or.'airicd thu Apsi/.ft to iiivl;--"
anil rf'lurne llu;ir veitlict to iiiorrow alt..i*I..-
o'clock.
The Lnnls havinj^ oril;:inf:! llic p^rr..:! ; t:> 1^-
rarryeil |ni<(»ncr-! lo ihr Tol'mMth (»lJM:'iiiiii'J>.
31r. John Stewart a<i\iK;ilc; iis iin:(".iu....: •..:;•
them, pnuliufil an act of iJiivy couiiril, u Ik i . ^i"
the tv-nor folUnvs :
Kr»iNiii:iJi:i, Ticcan'.'-r (i, 1 ?;.".;";.
The [.'Mils ori»i.sn»aj.'^-.tIi-\i);i\i'.- coiuuii ' ir-
inij iiiloinicd that tlicie aii^scvml ;kis(.:j ; iiiis
fhiy indicted Inrfori' tlu' lords c.inuiiiN.^linius oil'
his innjoslie's juslici<iry lor t!i'» (Tmiicn iA\' \
trca«"«Mi, as JKuiisi; l;i ;*n in llu* lait* icIk lli»)n
with t!jc Idle rai!«' ni" .\r:j\lc, ;;inl cn;^idtriiii;-
that Dimcaii ('ai»:}»l ell. si«i:u'i\iiif (.fClui^atro; •
Ant^Mis >I*Lauid>i:iri, suinc tMnc ot iJainaufad ;
Allan >I>L:iwchlai)e, suite iMiic of Duindi!;
and Doiialil Cainpln 11, stunt-'tN me Icuar of Hul-
nahii* ; have saifU* coiidncts lor stui;et\ii'.e not
yet oxpyrt'd, <loe llicri lore rc( (aiitiid lo tlu'
lords roinmissioners of ju>ticiary iliat in ca.so
tho saiiU persons, or any ot' thnn, he lociud .
puilty of the saids <'i-\ nit- *• by the \enlict o| ]
A*isiz<', that in rcspici of the >aids NaitVu con- j
ducts Vi't ilc))C'ndni^-, th(>> lie not couiinlttcd to <
prison ; hut piiinilled to i;o from the liar lo i
nijoy the benetit of the saiii saille tondiicl;, |
for tliiftwne reniainin:; ; in respret the lonis ,
of councili is to rccontiud them to his sacred ,
iiiaje.stie for his royal remission totbem for
their lives only. Kxlracted be me.
•Sir Subseribitur^
Will. Patterson, Cl.^$c. Con.
Then follows a continuation apun!4 tlip
other Campbell, &c. to 3rd March next.
Absent witnesses fined.
Verdict of Asiize.
The s.'-iid day the pcrsones w ho pa.ssed iipoti
the ass\se otf Archibald Camphell, of Danna,
and others, returned their verdict in preftcnce
of the saids lords, whereof the tenor folloirs:
the suisyse haling elected and cho>-en Patrick
Smith, of Bracco, their chunctllor, they all in
one voice fiindrs the l^licll sufliciently prxiveu
nti^ainst Ar(!hibald Cainpbcll, of Danua ; Collin
('ampbell, of Blairintibert; Dnncan Campbell,
of Culj^tro ; Donald Campbell, uf Beluabte ;
the deceased Donald Campbell, sone to Duncan
Campbell, of Drumfunie; An<;us M*Laucb-
lane, ott* Barna^ad ; and Allan .^I'LaucliUne,
otf Dunnado ; and that ibr their beinj; in re-
bellion with tlie late earl of Arg-yle, and ibc
other rebells, with hitn in the highlands, in
May and June, 1083 yean?, and being in armes
with them, the which verdict is suliscrilied be
the foresaid chancellor in name of the inqunt,
and written by Henry Jessie clerk elected.
SicSubscribiiur^ PATRicivS.Mmi, Br. Cban.
The Lords having considered the venlict of
a^rsize returned against the persons above
named, they, in res{»ect thereof, deceni and ail-
j.nds:e tho said Donald Campbell, oiT Italnabie;
.\i(.iiii)alil Can'.jibell, of Dana ; DnncanCiin])-
l;iii, (»f (.'uly;atro ; .\!»un> 'irLaiicldanr, iS
l».':'..;.;4.»,d ; Allan !M'Lachlani>, of J)ui>na'i!»;
v.\'.i\ ("liii (\im|il/('ll, (d* Bi:iirintib<?rt ; to I
( MiMii I ) tlh* i!e;tth, deiuaiued as traitors, a.Mi
tj uud''.^o the p-iincs of i:cason juul utt".
(ii;ni»liiiiir.l a()|»oynted by the laws od' il)i*
riMihi, at sncli lynies and placcN and in such
w. 11:. .''i-, ;!s onr si»vcre:;^n lord the Kinj^'s iiii-it
sac it'll n.;:";cstie shall :i;»poynt ; and urdainc*
I'nrir na:nv>., lanu'*:. memory, anil honoursS. n!f
tin- ile<:t;'st Donald Canipb. II, oirUinm, to !*<*
extinct, lb' r idooil t(» be tainted, ::nd tliur ant. *
to be riveii lirlli and delete out of the boi.k:?! :.
arnus, so tbat their posieritie may never Ii.'Vi
p!:Mc nor i.c-.'-le to l-rnikor joyseuny hoe.f.i..-.
otlieos, tilles, or <lii(nirK s hereafter wiihin l!i:*
n ahn, and in tyme comeinij and to ha^e i:"; -
fanit'.d, ommii:ed, and tint all au«I sinuliieiian
lanils. lit ritaoi s, la\f s, sleaJiiiiis, r.-oins. |»i<-
sessie.n^i, tlik"-, < li'eeis, irooils, and j^ear, wUaI
sojiio^r |K'rlaiiii:»:;' to tliein, to ovir so^erti;:'
lord, r.nd to remi-.in pjrpetuallie with his i.ii-
jis'.ie in propi-rt.'e. \\ hieli xta.^ pronounce! I ■"
doom. \\ In renpoM hh majesties soliciturs a:>keii
anil took inNiroaieiiiN.
M:ic'i :», 1(io7.
, :::•< n'. tiu" eriminai aetiono a'A
n, liirmulie insisted and n«^w
;;etaMeeot l:i«* luijistie's «•!■
Uoiiaid CaiiJi^bell, oil' t.)u'> i
The said ibp.
proees ol" ma-.
peiM'U<*'i at t!..
voeat, a
^t
for High Tteasort.
?r, of Dninifunic ; Anffus Camp-
)t; ami John Cainpbel! of Ulva ;
zw'* aud jovncing in armes and in
ith the !aite Ai^j'le and other
D&ner tuentioned m thcr dittay,
the fmnier procedur thereanont>
he sixt of December last, which
ion being this day callctl, conaiieired
ihymple, younger, otF Stair, his
•Ivocat, with btr Robert Colt and
^annerman, advocats, his niajestics
perse wers on the one pairt, and
■ pairt compeired the said Donald
F Oab ; who deny ed the dittay, and
.'Ued, and An&rus Campbell, ot* Dal-
ohn Campbell, of UWa ; whocon-
r eilcr specifit.
itys Advocat declares he restricts
0 the |>annalls joyning with the
>nresponding or conversing with, or
recepting, or assisting them, or
pairt off the rebellione lybelled.
Steuarty advocat, as procurator fibr
, alleadges, that that pairt off the
be pannall Oab was perhaps once
pan^' with the rebells, that per se
It ; because in this iiarticular case,
made appear that tne pannall was
npany with the rcbclls, which is
is oriered to be provine by the per-
ness, that the pannall hade a
ad, to be bnrried to-morrow efter
awe the rebelU ; and it was goeing
Tillage to gett some nccessarys for
; fiardcr alleadges, that wearrcinsc
r fc'is not relivant, and particularlie
1 sword, alwayes denyein^ that the
le any or wore any sword, at any
ever they rancountered with the
luse in that conntrey, and at the
L horrid rebellione, thcr was no man
sword, but he hade it about him to
icatione off the loyalttc and depen-
his majestic iff the occasione should
• defend themselves against the vio-
rebells, which cannot in no seucc
ane abominable guilt as that off
>ff treasone lybelled.
t Colty ane of his majestie's 8o]<-
HIS tlie lybel which is most rcli-
lled upon tlie invasione by the late
that the pannalls are airt and |iairt
rebellione as being eyr actuallie in
the late Argyle or those that roso
ellione, or as assistors thcroff, or
nders with, and in company with
is, whither in armes or without
that the lybel beinri^ relivant in
members theroff, and the defence
n a naked denyal off the lybell ; and
if Oab, fur whom this defence is pro-
'eiog raised no exculpatioiic, and
dgeS nothing that can eleid the rcli*
loence ought to be repelled and the
ted to the knowledge off ane inquest.
A. D. 168&
[814
tn order to its being provine or not, and taks
instraments upon the pannalls procaraton ac-
knowledgeing the pannalls being present with
the rebells Tolmitariie at that same place men^
tioned in the defence.
Mr. Jokn Stewart oppoos the defence,
which is no aduiowledceinent, but upon the
contrairOy ane expresse cfenyall off all the arti-
cles off the lybell, and that which is alleadged
against the relivance is nowayes answered, nor
could a lybell of that nature be sustained sup*
poseing it were proven that whicli is insinuate
and the defence, because the pannall peihapo
one single tyme, the tyme off the whole re-
bellione, was seen in a kttell clachan or village
wher the rebells was, about such a necessary
duty, and never heing seen with them befor or
efter, or in company with any of them, albeit
he hade a sword about him at that tyme it can-
not inferre the treasonable convene lybeUtd.
iNTERLOQUrrOR.
The lords justice general, justice derk and
commisssioners off justidarie, haveing consi-
dered the lybell penewod at the instance off
his nuijestie's advocat Imd solicitor! ag^nst
Donald Campbell, off Oab ; Duncan Campbell,
elder of Dramfnnie; Angus Campbell, of
Daltout ; John Campbell, of iTlvft ; with the de-
bate above written, they find the lybell as h in
restricted, viz. that the pannalls,. joy ned with
the rebells, er oorresponifed or conversed with,
or harboured or recept, or aniBted them, or
was airt of pairt off the rebeltione lybelled, re-
levant separatim to inler tbe crime and peine of
treasone, anji remitts thesamento the know-
ledge of the assyae.
AssttA.
Patrick Smith, ofMethven.
David Hepbume, of Randentomie«
John Mnir, of Park.
Major James Murray.
Alexander Hume, off Mnrrayet .
John AVint, cordiner.
John Sandilands, brewer.
Alexander Douglas, felt maker.
Archbald Douglas, armorer.
8amwell M*I^an, merchaud.
Alexander Scot, stabler.
Gcorg Watsonj taizlor.
James Murdocli, taizlor.
Robert Young, wright.
Lauchlan M'Phersou, taizlor.
Angus Campbell, of Daltout, and John
Campi)ell, of Ulvar, doe judiciallic in the pre-
sence of the justices and assy scr^ acknowledge
and confess that they were in r%!l>cllione with
the late Argyle the tyme lybelled ; dedaire
they cannot wreitt nor speakc Inglish, and
therfor his confessione is signed by my lord
justice gcnerall, and John M'Kenzie, macer,
who was judicialle sworue interpreter.
Sic Suifscribilur, LiNLfnicow
JouN M'Kbnzib, inter|iretQr«
816]
1 JAMES II. ProceedtHgt againH Sir D, Camphell and etAtn, [ftMf
I
I
I
I
I
Martin Sinduir alias M^Nakaird^ iii KiU-
ftistiaiie, ai^ed ihrettie aujght yemra^ or lht:rbv,
fnarrieii>pur^C4J, and sworne ; depons l\\M ifie
tymc ty belled of Ar|fyirs relKjllioiie, lie did see
Jlooald Cain^jWI^ nif Oab, in cfiinpnny Mfilb
the rebel U at KilliinchaLlli o^Gliisrie, at Ihi^
tyme mIich I^li. C'bailes Ciim|diell was tlieri
urttbalxiultbe nMnd»vr *»<' tH'i> hiimlnt'lb rebelb
^illi liim, nitil Uitil he did see hi«ti vvalkiii|; up
lUid downe with tlittii as f»thir.>i diil ; and thsit
l^ithin a day or twii efter ihat he did see him
al EiUniichaell, of invertjbssie^ wher Mr.
Charles CampJH'll, wilh Ihc rebclls, wpnt to
imniediatlte out Af Killttiichadl ulf Glasrie,
and that he did sec him i^onverse with Mr.
Charles Campbell anil wilh others off the re-
Mb, as the re^t of them did ; and that he hade
a Buord about htm ; de}>ons that he did see
Dancan Camnlieil, elder, offDrumfuoie, ryd-
iDg from Killmichaell off loTerlessiei wilh a
sword about him, in company with Mr. Charlen
Campbeil, aotl the rebells at that time, when
the rebells came back fmrn RiUraichaell off lu*
TerIesai«to Kilmichaell off Glasrie ; depones
he did see An^ua Campbell, of DallotU, in
company with the rebells the tyme labelled
at Killmichaell offGlQsrie,at ther first ryseing^,
unA that he heard that John Campbell off Ulva
was ther, but did not know him ^ aud ihLs is
the truth as he shall answer to God.
Sic Subscribiturf MABTm SfMCLAiR.
John M'Ltwchlitn^ id Mlcbnan, agedthrettic
yeares, or Iherby ^ aiarrte<l, pureed, and suome;
ilepons that the tyme off the late Argytls re-
bellione lybelled, he sawe the pannall Donald
Campbell, of Oab, in Killmichael of loverlas*
tie, where Mr. Charles Campbell and a pairlte
of the rebells were far the tyme, and <awe Oab
sjfeake to some off the rebells, and does not
knowe what was the subject of ther discourse,
and that he sawe him walk two or three
with the rebells, hut does not kuow how lon^
lie itayed with them, and suwe him Htand-
wg within tfte breadth off hts house to the
place wher Mr. Charles Campbell was ; de-
|}ons that he knows that Oabs naturall sonc
was in the rehellion, but kuttws not if his taiiier
recept or conversed with him after he was in
the rebellionc, depones that he the denonent
went to Oab his maisler,to«artls the beginning:
of the rebellion, and asked hirn whut he and the
oilier tenants should do ; anil Ojb answered, that
lie did not know, but thouf^ht they should do as
tlie rest of the country did ; and depones that
tbe greatest pairty oH the country thereabout,
went to to Mr, Charles, after Mr. (Uiarles bad
threatened to bume their houaea, and hade burnt
one house, and the deponent himself, and
OaJw natural sooe and M'Re^oer, bis domes-
tic serTAut, and four or tive of O^Wa tenants,
as he remembers, went to Mr. Chai lea ; de-
pones that he sawe fing^us Campbell, of DuU
tout, aud Animus CampWll, of Ulva, with the
rebells at the Tnrbat and Bute, and they hade
armea ^ and that hf^ sawe Campbell, off Urum-
funiei at IsurkmichaeU, off Invcrloiisie; in
company with the i'cd>etts wher Mr. Ctiaria
wasthcr, aud thai be hade a sworil ; and llfii
is the truth as he »hall answer to God, deycnctf
he cannot wreitt,
aicSuhictthitur^ Li^iLlTllGOW, L P. D.
Jonti MvRenzie^ Jiiterprei<>r. '
Fairkk CampltU, Called Blark P^trkk^
some tyme ffuctor to Auchinhreck^ a^-ed thi
yciires, niTiniid purg^ed and ««w(»rne ; riepoil
that the lyn>e lybelhd, he did ^ee D<mtM
Campbell, of (lab, in company with iherrbelft
in Kifktnichaell of Glasrie, when Mr. Cbarb*
Campbell was ther ; and dcpous that ih
he sawe him ut K^irkmichaell off Inr
on horse back, rydein^ doune tmm a
hight above the towne, wher Mr
Campl>cll and two hundreth »»l (!
and depons that be did see Du
elder, off Drum lunie, at Rirkm.
with Mr. Charles CampML tl
and fyve hundreth of tne rebc!i^. ..,^, .. r,
pones he sawe Ang^n<* Campbell, of Oultoot,
and John Campbell of Ulva all allonge liilk
the relwils in armes, and partjcnlarlte ti
Bute^ Rosa, Tarbal and Cowalt ; and thU ii
the truth as he shall answer to God,
Sic Su bs€ ri biiur^ Fixaicit C \m%uL
John Polluck, in Rinmithaelt, off Glum,
aged sixtie yeai^es, married, purjfed andsuwKr
depons that he did sec Ihincan Carnptiell, t-lder,
off Drumfunie, in company with the rtlidlait
Killmichaell of Glasrie, aJd aawe hitn ryiltif
into the town with severalla of them, tbr'rytot
of Arij^'IPs rebelliooe ; depones he sane Ansfw
Camphell, of DAllont, in company viitb tht
rebells walking with a swonl tl»e 'same t|nii
and places, aud in armes ; and this is the Utri^
as he shall answer to God.
Sic Subxribitur^ Jobk Poixogi*
Robert M'Indocrf sone to Leugas M*Ijido(r,
in Kiltchuwne, agetl seventeen yeares« oa>
married, purged, and s WO) ' ^aitie
tvme lybelleil, he aawe 1 I, «l
Oab, at KiUmichaell of * «..»..,., ,. , j v^
ami down the toivne, when Mr. ChaTn ( m .
bell aud the rebells were ihere ; depun?- Lt rjAi
A nit us Campbell, oi' Daliout, and Jidiu CAaip-
liell of Ulva, walking up and duwne wilh iht
rebellji and cnnversinj; with them, when Mr,
Charles Camplien was at KiiUnichotll off Glai*
rie ; aud this is the tralh as he shall answer \»
God. RuD£RT M*lN{>OKa.
The Lords onlainea the assy ae to inclose Mil
returne ther verdict to-morrow at ten o*dock.
March 4iK lf»Br,
Tlie said day the persons wbn past
the a«:^5se off iiouahl Caropltell, of Oab; _^^
can Campbell, elder, off Urumfunie ; AsfSt
Campbtdl, «>ff Dahout; J<dm Campbell, o*
Ulvu ; returned ther verdict in presence of Ui*
saids lords, whej-off tlie tenor ttullowes :
The Asuvse haveing electH and cbOltB
PnU-ick Smith, of MdUircn, chancelh»r» U>»y
) Pmeedings agaitut Viscoutit Dundee and othen. At D. 1690.
tsid-
one Toioeffiod Donald Campbell, of Oab ;
»n Campbell, elder of Dnimfunie ; Angus
pbeli, onDallout ; and Jobo Campbell, off
, were persewed fibr the cryme off trea-
, that the same is safficiend^ provine, ac-
.rtg: to the interloquitor off the lorde off
^rie, and thir presents ar written be John
iilands clerk, and signed be the forsaid
eellor, at Edinburgh, the third day off
eh, 1687.
Sic Subscribiturf Patrick SMrm Bracco,
Chancellor.
Her oppeing and reading of the whilk yer-
off Assyse, The lords joslice gcncrall, jus-
clerk, and commissioners of justiciary,
fore be the mouth off John Leslie,) demp-
of court, decerned and adjudged the said
aM Campbell, of Oab; Duncan Campbell,
r, of Dmrofunic ; Angus Campbell, off
boot ; and John Campbell, of Ulva ; to be
execute to tlie death, demained as traitors, and
to underlye tlie paines off treasone and utter
punishment apoynted be the lawes off this
realme, at such tymes and places and in such
maner as our sovcraine lord the king's most ex-
cellent majestic shall appoynt, and ordaines
ther name, fame, memorie, and honors, tu be
extinct ; ther blood to be tainted, and ther
armes to be riven furth and delatte out off the
book of armes, so tliat tber posteritie may
never ha?e place, nor be able heirefter to
bruike or joyse any honours, offices, titles, or
dignities, within this realme, in tyme coming,
and to have forfaultcd, ominitted, and tint, all
and sundric ther lands, heritages, tacks, stead-
ings, rowmes. possessions, titles, offices, goods,
and gear, wbatsoinc?er pertaineing to them
to our soveraine lords use to reraaine per-
pctoallte with his liigbnes in propertie. Wbidi
was pronounced for doom. \\ hereupon his ma*
jestie's advocate asked and took instruments.
7. Proceedings in the Parliament of Scotland against the Viscount
of Dundee* and others, for High Treason: 2 William &
Mauy, a. d. 1690. [Now first printed from the Parliamen-
tary Records at Edinburgh.]
Edinburgh, Jufy 14, 1690.
NENT the ly belled summonds and indyte-
it for hi^ treasoue raised and persewed
ore the km^ and queen's majasties and the
iMof parliiunent writttn in Latine, aud ex-
le under the band of the deput of the direc-
lofcbanoellary, keeper or the (quarter seall
rfbrme to ane warrand and act of parliament
v-Benttoned ; att the instance of sir John
ikymple, younger, of Stair, tlieir ma-
tics td¥Ocat for their highnes interest
the matter underwrytten against John,
osont of Dundee ; James, earle of Dum •
' The celebrated Graham, of ClaTerhouse,
a fonna a very conspicuous figure in the
ittSsb Ilialory in Uie seYenteenth century.
BD the meeting of the Convention of Estates,
0 went" Dairy mple instructs us, ** wherever
sprit of Montrose should direct him," a
loB flctiOD, aavs Laing, exceedeil only by
tbcTi that his neroism was caught from the
ilation of Ossian- s Poems. He was killed in
hMlle of Killycranky, (June 17th, 1689),
eve be had beaten the troops of king AVilliam
Icr Mackay. Phcaim has honoured him
b tfMS fiiilowing epitaph :
mt Sootoram, potuit quo totpite i olo
■IBS Patriae salva fuiiie tu« :
■oriente, Dorai accepit Sootie ciTe«,
spiti|oe DOTos, te moriente, Deiv.
tibi sapefffsse negat, tu eon potes illi :
9 Galedoois nqmea inane vale.
|aa Tale, gaotis prisea fortinsime dnctor,
■c ScolsnnD, atqya vltinw Grane, vale.
rou mi.
fermling ;
■- viscount of Prendraught ;
lord Duukcld ; major William
Grahame, of Balwhaple; CoDonell Alezan*
der Cannan ; John Cleilland, of Fasken ; Mr.
Colin M*Kenzie, uncle to the carle of Sea-
forth ; sir John Drumniond, of Machany ;
William Crawford, younger, of Ardmillan ;
James Crawfurd, his brother; Ro-
bertson, of Strowsn ; David Grahame, brother
to the deceist John viscount of Dundee, for
himsclfe, and as representing the said viscount
Haly burton n, of Pitcurr; and ■
Haly burton, as air to the said deceist
Halyburton, of Pitcurr; his father, Jamei
Which Dryden did not disdain to translate
as follows :
" Oh, last aud best of Scots ! who did maintain
Thy country's fVeedoui from a foreifnn reign ;
New people fill the land, now thou art gone.
New Gods the temples, and new kings the throne.
Scotland and thou did each in other live, •
Nor wouldsl thou her, nor could the thee survive.
Farewell, who dying didst support the state,
And coutdit not fall but with thy country's fate.**
See in Laing, vol. 4, p. i222, 2d c<l. the de«
tcction of a misrepresentation of Dairy male's
relating to the battle of Killycranky.
Dairy mple has printed the following Corret*
pondence, furnished to him, he says, by sirDa«
vid Dalrymple (Lord Ilailcs) :
Lord SCrathnavcr to Lord Dundee,
« My lord ; The concern that many equally
interested in us both, has for your lordship, ah*
3G
>
S W. * M. ProceedSngs agf^imt Visecunt Dundee enj athertf [!fiO
i-i.^l>elts I BQtl by tlie tiitt »nd Utii acti padi»-
Qii^nl 6ih Iff km^ Jantoc ibe tt«eMii, md pti-
H*iii<*Qi iH^Itb kitig Jantci Uie M*Atit oipm m
btuidr^d &nt] four! j-»rx, the ry«emg k t«tr ol
weare, orsiip»1^i(ig the rebelfs in help, r«|^«t
eouticilU ^r tiHs «t»ff«in^ of hDu«e& fuc lb
ftirthermgof tlie iifijf*! m)elt»« irv crjma ibr
which I be peri(>a««&r« piiubtkible at umiloim,
againet whom n&t 00!? fnH^ultikres ^xn ajtowii
lo pr]c«4^ in «b(iencebv the d(>reiitli act «f tht
ttrs^ s0$iion second parhanirrit of kitig CLkrki
2iid, but Jilur) by the ^gtii »ct paflitiiiftit
6tb kiii^ J(iane«^lic fyfth, the suminiiQdvol'
treftwue tiu^^ be per»ewei1 agaiost t|i« tir 6r
the trcfiiton committed hy ^is prtiltcoBBr
Wverthek'S* it is of ferity jh at tH«d«c«ulMii
t'hentint of Dundee, auJ Jaiiues^irteofOu^
fetmYm^ ; rkcouDt of Fc^dntugbt ;
^ — lard Dnnk^ld; muor WiUiani Crahiaw,
off Bt'ttiohajde; colloudl Alejoindcr CunaMmi
John f :knlUtidi afF Aiken; flit, CoHti M^KeniUf,
uncfe to tlie cnrk of 8eafortb ; sir Joliii Drucn*
inoiid, of MarU&ny; Williiini CMfrfur^^
votini^^r, of ilidaulbti ; Jaid^ Crmwfurvi, hii
broibei;' ; — ffAmwm^ «f ^^trtiifai ;
J^lr. Diivid Grahame^ brMbcr to tlie ttEt^ouot
of Dundee; ihodccdgt' i r HftI)- bitri^R,
of PitcMrr^ a Eld Hadybuitoo, IbU ««mc ^
Jam€>ii KdmoD^:utm, of Newtooiii ofUnim;
nk EwQQ Canter^n, of LodlpueU ^ «^^ —
»I9}
BdtiKiriiitfftin,i>fNe«iotitt,6f Drum | sirEfrafi
Camermi^ of l*o<^K/wlI*i Cameron,
hi« cld^t «one ; ))onah1 Bl^Dooatd, youngff,
of HcJail« ; the (^irJ i*f >I*Nii*gto(i ;
Grtpti of BalbjidaMocb : — Htewarl, of
Appjrr; M*K*»ttti, alias HMJooald,
^^1 nf Glc^oie; Aleicmivder M'DoqaMj
yoiingfpr, of Gleogary 5 Donald M*NriU, of
UaltiibrUie; and sir John M'lcan, of Dowart,
aoildiverti others thdr ^fod«tt ant! accom-
pli cf!S. The aiiib c utick cnpte vf hereof, i a E ng-
lieh, i>roth*rrd in man ti«*r after tpecilied maketb
menlMHi, Thai vvhcre the rrjmes of irbelUowe
end tp«jwiOfte»rjjidn^and<*imiinowitigiti ariiies
agminst their majesties ami therT highne^ au-
^ority iud ^pOTfrntnent, and the aasaulting of
hifitaissi and rtreogihs^ Uie harbouiring-, corres-
pondirtj^ ind asiocialitig With open rebetls and
tralcotint; the falfioij upon, woiinrfebg or
Toy^rinij their nihjestics ft»rces in iheir recreate,
are hijfh cTyme*!^ pursijiiiittble with forfeiture of
lyt^^ bnd^, auil uooys ; and fay the third act
first parliament kiii!^ Jamt^ the Rr^it, it is sta*
iuVt am) ordmned, Tbai no luan nottoitrly relieil
agtknit tl>« kiri^^s periion«, under the [lain of
f^aplliii§f of lyft^, hn^9- aod ^u<kIs ; and by
the tbreity-sererith act of his second parSia--
m^t^it is !$tAiiita, Ihiit roe man wilfully rtaHU
CDtcrtidne^ or doe faroom to open and mafufest
stractiog from that ?eapect which your own
merit made tuts tmve. cs^imol but occasion re*
grate in tne, to see that the courses you take,
tend inevtia.bTy to the luln of you and your^, if
persisted in. I cannot ibereitire bat wish, that
yon woidd follow tlio dnke of Gordon- s e^mu-
pie, and ] am persuaded it will be found the
be$t course i nritlier shall yoiiv friends Mio at
this time dai-e not Mell meddle, bo Mrauting ta
■how thdr alTeciion to you, ajid mtcrest iu the
stand Sn^ of your family ^ and f ho^io you niil
do me tlie juHtic4i lo b^lic^o thiit noue wi^fhes it
better, or will more effectually lay binuielf out
iti it, than^ my lord, Sec, irtBArmhvm*'^
" Inverness*, 1
"3d of J lily, 1639."
Lord DtiYtdt£ in Lord BU^ihn&vtr^
*' My lord ; Your lordship^i, dated the 3d, I
receiTed t!*e iSlb^ ami uould ha%e returned an
answer liefbre now, bad I not been called sud-
denly to Eiiverlochic, to triTe ordtfre anent tlie
forces, arms, and a munition acut from Irknd.
My lonif I am ej^treamly sensible of the obli-
g^tiou i have to you, for offer! n|^ your endea-
vours for me, and giving- me adf^ice in ibe des-
feraie estate yon u]ou|^ht onr aflairs were in*
am ^lersuaded it flows from your eincere
goodnest and concern for me and mine, and in
return, I assure your lordship, 1 ha?e had no
Uaa concern for you, and was thinking of mak-
ing the bkf> address to yon j but delayed it till
thmp (»Jiould appear more clear to you, I iliu
aorrv your iordibip should be so far abuied as
to think, thiit ihere is any shadow \if appear-
.anccaf itability iti tUhinew itruciura of go-
vernment these men hai^^e framed lo than*
selves I ihey made you, I donlit not, bchrw-,
tkai Darie (Londonderry) was rejieted tlijce
inceks ago. By piiuted accountf, and 1 ou
a^$ur« you^ it never wa^ idiertd, and daw U
taken. They told you, the Ingtish deetai^
Dutjch were ma&t£rs ol' ibtf ^ea^ i know hi
eeitain the French is, and in the Chanel ; ia
l4^tiiuonv whereof they havedeTeMefimirSopU
ihiid* Pm as they came alongst tliey i^l «ii
the two friff]::,^ts, killed the captains , and setii^
tlie &hip^, and brought tlie tneu priionen t^
MulL Tljey tell you Shrrmberfr is g^iiig to Ir-
laud to cany the i^ar tHitlicr. I assui^ you tha
king has lunded a conaiderabfe body of liotiqei
there, and will bnd himself am oogat our ^en^
in the west {whom I am iorry mr) rerj' sooa,
80, my lord J having given you a clear and trui
proipect of affiiirG, which I am afraid amoagil
your folks you are not used with, I leave yon to
judge if J or you, your tamily or myn, be m^
in danger. However, I acknowlcft* frandj,
I am no lesa obligei] to vonr lordship, seeing
you made me an offer of your assistance in a
tyme when you thought I needed lU Whereia
t can serve your lordshtp or family at any tifDC
you think convenient, you may freely employ
mc. For, m far as my duty will al[ow me ia
the circumitancca we stand, I will study yaar
well aa becouies^ my lord, your most laumbla
senant, D^rMdE^*^
'* Struan,
" mh July, leso "
8ee, in this ^oUectinni other particultra ^ti«
ceniing Dundee, roL ll« p. 945, fiiseq.
8S1}
f^ High Ttraion.
t hm eldest sone; Donftlr) r^I'Donald^
T, of Sdait ; the laird of M^Nauetitoun j
t ■ Grant, of Ballindallcicii ; - ■ --
Stewart* of Apptn ; M'Le&Q, dHa5
M*Dt»ijaI«l, cliier, of Glencoe ; Alexander
M*Donaldf youn«^er, of Glen^crric ; DnnaM
McNeil), of Galenbellie ; atid sir Jobti >1 * Kean,
of Dow art, with diverse others 4 heir associats
attd acoonnpUce^, haveing^ shaken off ult fear of
God and reguird to tbcir maHicsand their lands,
and lore to th^^ir nai'ive counirey, they did
Iryse and conlinow in open armea against their
majesties autbonty aood t^ovemment, the tii^t,
second, thrid^ or ane or other of the dnyes of
the inonetli of April!, t6H9 years, nr ane or
«rtber of the dayes of the rnoiielli of May ther-
uheTt the said year ; and iijioti the ■ ^ - day
€f May or ane or other of the daje^ of tli? s^id
1B4Mieth and year of God ftir:^id, the said de*
cifist John, Tiscount of Dnqdee, and the other
penofis a^tneolirvDed, did come to the toiinc cif
nrth tn fear of wear, aud therein in atie hos-
tile manner did seize and carry away the de-
[ laird of Blair, and other ufllirei'i of their
i forcea, and detained the laird of Bbir
• 10 the castle of Dowart, in a crnelt
and tad cnnditione, tiki he dye^l ; ^ml ujion the
■ day of June, one thousand six htindrcd
and eig-hty nyne year«, or ane or other of the
ilayaa of the said moneth, the perBones abote«
flftined and olhera, being- all armed, marthtog
to joy tie the rebel Is, did attack a certain nam-
' of their maje&lies force* under the com-
1 of captain Alexandor Youngs, in Kyn
lyre; as al%K> the said John, viMcount of Dun-
Jeei James, earle of Dnmfi^rmljn|.% and the
•ilicrpenHmesalKiTenamifd, ha veing- raised and
mmtmbM tc?erall thousands of rcbellSf and
iMUuMi rehells, [sic in orif,^.] they had the
Mdiieuto march throw thecountrey, opprc^^-
ifi|^ and destroying tbetr maj(?stres good and
loyall sulj}ect», and to opjio^e their forces ; and
I the 26th day of Jnlly, I669» or ane or
' ol'ibe dayes of the said inonetb, the said
[)*U Johoy viscount of Dundie, as generall or
ttiadisr of the per!ioiis forsaidif, and oih^r rebel Is,
did in a j>l»io battle attack their mujegties
e, betwixt t!ie blair of Atliole and the pass
ilieobrankie, and did kill and wound :jeve-
r majestjes forces and gaoil subjects ;
upon the dayes of August^
I or otiier of the dayes of the said
^ or ane or other of the nvonetln of the
ar, the said James enrle of Dumferni-
the othiT persons Ibreaids, and their
) did attack their majesties ibrces at
uretbey did kill henenentcidlonell
Uajjd, major- — Hendcrsoner
dt others uf their majesties officers
bfiill souldiers ; and haveinqf niett and
id at Innerlochie u|ion tht: firsts second,
day en of tlic mooih of and year
lid, or ane or other of the dayes of
• 111' they entered into
lie conafiifadnSi (Kinds, and ossivcia-
ifibr furnish in*; of certain numbers aud pro-
] men for the niaintetiance and
A. D. 1890. [822
support of tbe rebellion, ami sent ODt parlies tit
murder ami destroy Ihftir majeftirs jtoimI sub-
jects, and to mbb and herrit thetn of Ih'eir i»^iind«| I
and the particular arts of rebellion^ lrca?iotf, 1
ry«einf|ri and eontinueing in Afines agaitist their 1
niajesttes authority and g^overninent, the as- 1
faulting of iheir foroes* th»^ c^rrisonein^ dfl
houses, and stiiength<f, the harbotireinflf, cor»- j
respondinif with open rehfllB aud triiitonr<f, and
the fiillinf^ upon, nonndin"' or lotthing their J
tna'ties ftbrces, and the other crimes ahote- I
mentioned, opon the dayes rex'iVe of the s«jw i
verall months of the saul year, on<3 thonsitnA
six hundreil and eighty njne, or upon ane of
other of the dayes of one or other of tne mondlw
of the «;iid year 1689, oft' the which horrid and \
treasonable crymes above specified, or auc or j
other of them, the baill forenamed persones,]
and ilk ane of tbeiu are actors ajrt and piiirt| j
which being- Ibnnd by their msjesties and lh« I
estates of parliaiuent, they iiuqi\n to be piw |
Tiished as horrid traitors and rebclls, with for- (
fanlture of lyfe, lands, honour, and ^oods, tt^A
the terror of others to coiiimilt the lyke in ty mt j
cnmeincf ; and therefore tlie saids baill defen-
ders abovenameii, to have compeared beforft
thttir uiaje^^ties and I he three eisitate^i of narlia*
ment within the parliaineiti house of Edinburcfli, i
at ane certane daye bygone, to hate heard and
seen sentence iind decreet, ^\ea and pro-
noyncf?d a^rajnst thern in the satne matter, at I
ut more length is contained in thes^iiilprincfpatl I
summonds which containes therern n warraiitl j
for executing; thereof, with the usimll solivuiot- (
ties necessar itpon twenty I'yve days warnint^, i
at the niercat cross of the head Imreh of thft j
shyre, where the fomameil persone^live ; and
in casi^ there be not tutus acctssus thereto at the ]
bend hurgh of the next adj iccnt shyre where
they lite, oonfonneio ane act of the first sessions |
of yonr uioiesucs first parlinincnt, daited tha
first day or Aug'ust, 1689 years, as tho said.,
suminonds naised and dewly execute ai|fain.'4
the hail I fornamed person es more fully pro portly
Thesaid sir John Datrym]de,thtir in.tjcstic« ad- J
voeat, compeared person ally, who desyred that 1
the said proces of treason c raised brfnre tlie paf-
liament at his instance agf/anst the repre^ientattvcfl j
of the viscount of tinndee, and — Halybur- j
ton, of l*itrtjrir j and ai^atiiHt the said JtiinrMi
earle of Diifufermling, and tbe persons above- ,
named, and oibcrs in this kiniifdom, who ro«»e ^
in actual 1 rebellion ayain.'ii their miije«jtits, auflj
still contii>ow in arines, tnifrhl he colled, and J
aeconliij-^ly all the persons agiiinst whottt]
the lyheil or indytcmejit of high lreas<»ne ia ^
raised were thryce pnblicly called by mea*
eers at the barr and at the g^rcat dotjr of iho J
bouse, aud notie of tkeiu coni|iearinjLj'» tliu saidi
sir John Dalrymple, their uia'ties advocat, |
produced in present^i of the esiaies of pari i a*
ment, the letters and ind^tcmcul of hiyb trea-
sone wryttcn in Latiue U[K)n parch metit, under |
the band and subscriptione of the dtpnt direc-
tor of the chancelary, keeper of the <ptartcrJ
■«all, tojijelher with ane other dnplicat there- ,
of, tinder tha hand ;vud subscriptlone of th«
2 W. ^ M» Prmeedings againsi Viicmni Dundte and oihirtf
fi89]
.fl^y dep^i dire<?ior of the Cliancery, keeper
U the mid quarter seiJi, ttem, 4iie aath^fouek
copies (»f the &aid letters ol' ireasone traosLated
lalci BugU^ii tO{^ttht:r wUb the rfirftairl act of
|«irii«ni^nlf cJiitml tlie firal day of August , li89
jriitfVf whtrby ilie king «utl qtieep'a m»je!tlie«i
AOd th# «Htat^ ul' |>iirliiiUkelit fkie gr^itit warrand
to bii mi^wttei advcicikt to mUe a tit? imlytemetit
of hif^li trt^iurazie betor the [lariiaiuenti agaioist
tilt vitfiount of Ditudcef the earKe of Dutntertu-
lingi mid otUei* |M?r£U^e«« whit arc in opeo re*
WLUuu against their nis^ettiaei aad Ivk^rays
agfalA^t all «ucb ftrmu^ u inlctxreptm any of
hm msk'tien Hmcvf under iho eomtntind of Eunjor
gciiernU J!ll*Kay in their relreat, nud kiUed^
wavttid«d, or rolihed them of their cloatlis,
tiursif»f aud anuvt ; atid iti^eby tbey deiilar«
thai a ctUiion RST'^^n^^ the saidt pernouef^ at
Ih^ tniircait croKjs of the htad kirgh ot liie shy ru
whmv tiiify iluifll; or in cave th^ benot ittiys
m^'Cuvi tlinrto ftt thf^ meroil croia of the b<^d
bur^b of tUti ot^t ncLjatf^ni iihyt< shall be auAi-
ci«n| I md ofWr production aud re:iihtig of th»
■Ibid indy1«iiiimt| in t^avit^^ ivhemf ihctr. was
l^o pruicipalb tiroducird and ane authf^utiak
coi^rtij tbt'ruof in kti]i»^liAh» and the act of parlia-
inrnt at>n%L'ini'rrUiTniHi^ Vf\mh vvofc read in au-
dien^ci uf thar ni.ij«i!KtIcs high oommissiouer
find tlic ^ttiutiiKnf ^miltninFiit, tUdr ma^iies ssiid
Adiucat did pritduct^ (mr f^ircnttae of tli€ i^aid
aiio\iuouili, diitt?d iht^ ?th, ath, imb, IStli,
t:)th, l^li, and J Itti dayi of March, iCi^
Jf'tar*, uoilrr tht* Imnfl of George Oijilry^ AK
mny beraidd ) h«nrn>er thi^t the iaid Ciiittrfife
0|{i1vi', Aih^ny hcrauhl, aU cummaud of tfic
li^idsi uHUirsof trccisoui; raiiticd at tbe iuKtanee uf
llirir niiytGitif^s fluid itdvfjcat a^irn^t thti said^
di IfiMkr*, and by vcriew thereof, Wilh *jne of
thi ir nia'uc*! lLn(npetet*s, and witne->fi tlierc*<^
inttii iubKCfy vcin^, jmiit ujion the bdid 7tli dfty
4)f Marv^hf to the oiercat ci^m^i of Coupar^ in
Fylftf ht'^il bnr|rh of this sVefdame thereof ;
And u|ion t)i« »aid ol|rht day, to the merest cross
of Fui iar, ht^ad burgli of I he aVefdonie thtireof ;
und UjHui the &ii\i\ liith day^totlia Qiercalcr^)^
off Abi^rdm'n ; and unnn tlW iiiid ISU* day, to
Iht' nu teat cfiiKM of bunUT ; and upon the i^aid
VMh d(iy , III the njcrcut crossi of KIgiiie of For*
xtMi and nnoti thi^ laid Hth du^y to the mervi^t
rruMatw of Kainii" and tui ernes rox^i^e; aud
upon till* auid ^4ih diky^ to tlie mercut crovai of
Perth, liaad hur(;Ui( of tbn ptVefiiomos thert^of,
ttn<l llnircnt ilk aue at' itio Haid^ crocBs rex^Wt
and KUt-cei%ive in thttr ma'ti^a uatne* atid ay-
itiority ^itb tliiiii- iinnttii of an»es dupkyed,
•iinndof tr-um)H!t, and other aol tumult ita reoui-
mitf II nd lu^oeaiar t^pwi proclaniatign and puhltck
readiucf uf tbt aaid iutttmouda of traasou«, he
luwliiiry Hmirjjisd tbo liaiM peraonos above and
atWtuimitiont'dt ^i£. dulin vlfscouaiof Dundee |
J Hint** em Im of Unnitrrmlin^;: ; v Iscoimt of Freii-
dranifliit bid Dunkrtd ', inujor William Gra-'
hiiin, vt Uat)nliH]>k i collantll Akxander Can-
tian I Jtihn ClftlmKU of ft'iiRtkcn; Mr. Colin
M'Rinii^it*, utji'b tn ilu^ tarJe of tseaforth ; air
John nrinnunMiil, of Mftchany ; William
<;fawfnrd» yQ4M^ar, of Ardmilfaii i James
bia bmtlier ; —
fitrowan ; David
son« of
to itie d«eei§l Joho» riaeouat of Uctadeff lur
bimnetff and na repr««eatinff tbe »ftid f iicoim ^
• Ualy burton , of Pilcurr ; and «
lUlyhurton^ m aina the said dei^kt
tlaly burton, nf Pitcurr, liis falitt^r ; James £<-
uionmount of Neirtoun, of Downt' ; »r Emm
Cantt-ron, of LochEeei i Canteen,
hit eldciai gofii^ ; Donahi Hl'^DoDaJd, yooapf,
of Hilate ; the laird of M'Nayg^hl&uii ;-^ ^^
Grant, of BaUindalloeh ;^i • • — Stewart, ef
Appjn ; -^ M'Leiui, alias Af 'Dooaiit,
elder^ of "Glencoe ; Aleivander JU^tkiMld^
yoong^, of Gleoi^rie ; Donald M'NihII, of
Gal h hell ie ; and 6i» Jobo M* fweuti, ©f [ii>«iHSTt,
and div^raeoihers, lh€tf assac'iata, and ac^ia*
pi ices ; aod all oih«n the succeieiiwm ot'sudi a(
thefD as ar^ dead, nnd your tu tiara atid cutitwi^
it thev »ny havr^ fur iheir in treat ; to |i«r« oe»«
pi'iriL^ij liL'ior the higii court of parlHtteil^
wUh^n the parliatnent bouse of EdiolHiifii,
itpon the ihy% particularly meu tinned iu dii
Si id lanumotidji, and that he made c^t liticatHHii
oudaHixtand left auihentiek doubles^ withaii
fif the witiii'^v ^t und U]ioo dk ane of tbe laida
mercat crosaes, hcfor ;^nd in proiffioe «f ll^
wjinesa meiUioued, in and »ub&crymiag miU
uem to the aaid c-xerutiiiofr ; ifi^elber
antsibcr exuutanc mider tht> band of II f
Glover^ Hutheaay berauld* bearing^ that
the mid tiighi, li^nih) tu^lt, foortein, aiidfj
day» mx'iti^ of the mouth of March,
years, Iho said VViHinm Glover lo bate
oomiuauii of tbp&ak) ^nmrnond^of irpasuite,
the instance of tbf mid sir Johti Dairy ni^,
their oiaji^tics advocat, lor ther hig^haes in*
tr^l^ against tbf? baiil dclendtrs ahovenained,
and tbetr aceonijdieej, \et^i witb ane trarope-
tcf, npon the suid Htk Uiiy of ^areh, and yor
of (iod forsaiij, to the mercat crofs of Lm*
nerk^ head burirh of the G^retdome ibrr^off and
upon the tt'ntli day uf Mareb, and year ol Gad
above wry ten, to the mercat cross of Air, hei4
burgb of the a^reldome thereof; and alaenpcm
the aaid lith day of i^t^rchi and year oj God,
fortaid, to tht^ mercjkt cross of Interadft
head burgh of tbes^retdome of Arg^yle ; aad
tifion the iburteeJi day of I^larcb, anil ytaf
of God abof e wr) tin, to the mei-cat rros of
Renfrew, head bnrgb of the a^refdcaie tkoifli^
and (ipc»n the fyfieen day of March, aud fern
of Goo fan^aidf to the mei^ai cross of Slertin^,
head burgh of the sVefdome thereof ; and tljere
at ilk ane of tlic! ^id^ eroisei}, r€9p«i;tif e aod
succe£!>if c ; in their majesties name and autbo-
rity, tbc aaid \l jtliam Gbafer, Rothesay ha-
ranhl, bfvfuHy ssummoned, warned, and cliat^'
ad) ilk ane of ihe lornLtnjed person«fl i
named, and others contained in the sumo
of treasone, and ilk ane of tbeni, ;ind the sna-
cessfint of such of them as are dead, be sound
of trujnpet^ thfee sereralltymeft, fiitli displayed
cj^iatt, he opt-n proclam^itione, and publiet read-
ing of the said sumuioods of trt^sone, sad
u&ing other solemnities, nrcessar to comprnr
bdbr thm m^esti^ high C4>urt of parliaiiiit^
itjMiJ
latc il I
iune, at I
■vrnri* '
fl
ISi] for High Treason,
' be holdeo witbio tbe parliament house of
dinbargb, at one certain <lay b;^'gone, in the
9ur of cause without coutinuation of da^es,
I tbeetTect for the causs't and made certihca-
DD as is eznrestin tbe said summonds of trea-
me, and aifaxt and left ane just and autlientick
jpie upon i)k ane of the saids mercat crosses,
»|iecti?e and successive, upon the dayes re-
irctif e above specified, together with a list
t'tbe witness names hetbr, and in presence of
le witness mentioned, and desiprncd in the ex-
7atton and subscryveing witnci$s therto, as
le saids executions more fully bears. Ther-
fter the saids Georjirc O^ilvie, Alban v herauld,
ittd the said William Glover, Uotiiesay he-
inld, who did execute- the saids letters of
itasooe, and th(> witness ins'rt and sub-
cryvin^ witness to their saids cxecutioues
?eipective tiirsaids, compeared personally in
pKseBce of their majesties high commissioner
Bad the estates of parliament ; and after publict
mdiiif( of the said lybell of treasone in Hcots,
awl the execntiones of the samcn ; the saiils
beranlds and witness, l>eing solemnly sworiic,
and interrogat, dcponetl that the saids cxecu-
liensformeriy subscribed by the saids heraulds
nA witness, were trew executions in all poynts,
is manner therin contained, and that the
Mien was true, as they should answer to God,
II their oaths and denosttiones, wryten upon
tte back of the saids respective executions
Mtf fabacry ved by them, and by the president
of jwrliament. more fullv bears. Therafter
Aor roajeKtics advocnt did obviat three objec-
tim which mi^ht be made ; Prime, that
«bm the executions does not bear that the
Cm were ceited at their duolUng houses,
only at tbe mercat cross of the head burgh
iftbe sbyrea, he represented that the warrand
pren by the parliament for raising the proces,
to expressly allow that manner of citation ;
^ndtf, Albeit the persons cited be absent,
^t the leading of probation against them,
lUw absent, is expressly warranted by the
act of the session of
piriiunent, king Charles the second, in anno
IW; Tertio, the deduceing of probation
tpMMt perMns guilty of treason after their
tob, is confbrra to the sexty nynth act, sext
Miaineot of king James the fyfth, which
*cta were read in audience of their majesties
^|[fa eammitsioner and the estates of parlia-
tal, ind then their majesties advncat de-
slarerf, that he restricted tlic lybell to the
kfeodera their being actually in armes amnst
heir majesties, after tlie fourth day of May,
1089 years, (which was twenty one days after
he pvodamation of their maiestiea king Wil-
iui aiMl queen Marv, to be king and queen of
hii mime) or such of the saids defenders
rbe joyned with any of the rebells who were
I sriBes after the said day; and the said
iHWfl eerie of Dumfermliug ; — ^- vis-
Mat of Frendraught ; loni Dun-
wU ; mftjor William Grahame, of Baquhanle ;
eUMMll Alexander Camian ; John Cleil-
nd, of FaakcD ; Mr. Colin M'&cnzie, uncle
A. D. 1690. [dS6
to the earle of Seaforth; sir John Dram-
mond, of Nachannie; VVilliam Craufurd,
younger, of Arduiillan ; James Craufurd, his
Brother ; ■ Robertsoue, of Strowan ;
James Kdmonston, of Newton, of Doune;
sir Ewau Cameron, of Lochzeel ; Ca-
meron, his eldest sone; Donald I^I'Donald,
younger, of 8clait ; The luird of lVl*Naugh-
toun;— ^-Grant, of Hullindulloch ; .
Stewart, of Appin ; M*Kean alias
3I*Donald elder of Glcncoe ; Alexander McDo-
nald, younger, of Glengaric; Donald M*Ncill,
of (vallalieilic ; and sir John N*Lean, of Do-
wart, and also the said David Grahume, for
himself, and as successor to the late viisfouiit of
Dunden ; and Halyburtone, of Pit-
ciirr, son to the said Ualyburtou, of
L*itcurr, his father; being lawfully fiummoned
by hpraulds, witli displayed coatts, and sound
of trumpet, and other bolcmnities requisite,
to have answered to the forsaid indytement ;
and being oft and diverse tymes called by niacers
in the parliament house, and at the great door
which was cast open as use is and not com-
pearand, the which lybell and indytement o^
treasone persewcd by their majesties advocat
against the deceast viscount of Dundee, and his
representatives, tlie earle of Dumfermllng, and
others contained in the lybell, with the execur
tions thereof, with the principall iudytement,
and the authentic double of the samyne, in
English, with the forsaid act of pari lament,
impowcring and granting warrand to the said
sir John DalrymuTe, their majesties advocat, to
intent, raise, and prosecute, the forsaid lybell
of treasone against the saids defenders in tbe
I way and manner abovementioned, being at
I leni^h heard, seen and considered by their ma-
jesties and the estates otf parliament; and
they therewith well and ripely advysed. They
by their vote and interI<»cutor, fand the
lybell relevant in thir termes, that these per-
sons were actually in armes against their ma-
jesties after the fourth day of May, 16i'9yean,
or joyned with any of the rebells, who were
iu armes after the said day relevant to inferr
the pain of treasone ; Aner pronounceing of
which interlocutor their majesties advocat per-
sewer did adduce diverse famous witnesses^
lawfully ceited for proveing the povnts oi'the
lybell admitteil to his probatione, wbo haveinff
compeared in presence of their majesties high
commissioner and the estates of parliament,
and being solemnly sworne, purge<l of partial!
councill, examined, and interrogat, upon the
i poynts of the lybell and indytement of treasone,
I admitted to the perscwars probatione, dep<ined
I in manner mentioned in their oaths and de-
; positions, as the samen 8ubscryv«ftl by them
i and the president of |>arliaineut extant in the
. proces fully bears ; and sicklyke, their ma-
jesties advocat profluccd the wiei'N aftermen-
; ti(»neil, viz. Ane bond of asMtciatinu entred
j into by the laird of Lochzeell, Donald ftJ^Do-
' naki yonnger, of Sclail, and other highlanders,
wherby they bind and obleidge themselves, lor
his majesties (the late king James) service and
¥n
»W.*|t
the
uidto
loieor
piiti-
ihmr^wn mftiy, lo meet 9k
* day af Bqvtembei*, If"
brin|&JOQ|^ with tbem th«
feambie men \ that is to imjri <
UteLr proportionmlL fiirt iLiid
ciilarly yViu eDUmf^mt, Inil pt is
cUr^a, ttial in cuse &rjy of theidbells thaUas*
g«ii!i t>r SLUitck «rij <j( I tie penoocf miliDBed
H ID the saiil bond u^' as^Hnatm, betwizjt the
ijale therenraovJ tbr for^aiildeyofNUidBMHise,
they dc^e aukmuly iirunilsetp aMlit one ewN
ther lo ilie oiumcisi of tiieir yewer ; ' datad the
2iil) day of Augtifi^t, Xtm yeeif ; lleni.aiio-
Iber bt»»i| of i&uudiilioiie bellHail ike vbcouiit
Qf Frendrauglti, J<thn Grait, of BaUindifcltot^li,
and olhers, dated citt ^ i^tii day of
January 1690year% wher«by, M tliey pretead
in lestimonifi ol' tb4;ir Idyamr to ih(?ir tacred
snd dread ^oreraign ; iiQdnird^e ^^urjiy of
tbtir tVemds aod gtiad n^^ighboor^i tliey tow
mild prates t befor ifae AJniMrhty Qod^ eedott
tlicir salvatioa ^i the greal daj^ to gee oa ao*
cretly imd niib ill thfy powir awl alwtfth tfaej
have t9 »tlck and by do by one anoliiar, awl
wbeji aoy ^f theoi shall |m
ivay^ tiM^ksled by any paicty
Bamererf Ibey fibaJl
^oraoy
repair to thair aid with
aU iWr streo^b and po«ir|. aad thiA upda
Anthar JDi
iaafar bel
tbe lirst caU wit bout any
lay ; and di»t thry i^hiill aofar be fayaoMder.
<ioofieat tif bi» m»je£tie'i ffoenill aad the bm»
jofT [tairt q1' tbetuMib^si, So hdl^ Aan God ;
as aW produced ane letter wiytM by the .aiid
sjr Kvi^^n Canicrori^ nf Lootmll; Mr. Colillr
VKenxie, uiide to the earle of Seafbrth;
John Graot, of BalliodaUoch ; tbe Uiird of
H'Nangfatoua ; sir John M'Lane, of Dovarl ;
and odiers of the bighlaad cbiDS» direct to
major Geoei'mll H'Kay from Birso* tbe 17th
day of August 1689» in anawer to his q'by
they ackoovi ledjg^e tbe recept of the m^or ge-
nerall'a letter fni Stratbb^^ and they said
that he gave acooQQt to hrif^deer Camam from
St. I'natooe, to wbicb be gave a ciiiU ratom,
lor by tdling that they aupport themselves by
fictions and stories (a ming known all tbe world
over) is no railleing ; awi that the Christian
means ^ the major geaerall said in hia last)
they make use of to advance their good cause
by, is evident to all the world, and the argi»-
ment they use to move them to address to their
ffovemment, is consequential! to the whole ;
fill, instead of telling them wbat Christians,
men of honour, good sobjecti, and good neigh-
bours, ougbt to £e, he tells them m both^ let-
ters that his nuuestie (the late lung) hes hott
warrs in Ireland and cannot in haste come to
them, which tbo it were else trew, as they
know it is not, is onely ane aigumeni from
safety and enterest; and that he might
know the sentimi^nts of men of honour, they
declare to him and all the worM, they scome
aeaaiif
his usurper and the indemnities of hisgoverm>
roent, and to save his further trouble by his
* '' IS, the .. . .
rking
Ugmui Vmrnini I^undte and others, \W$
way lo tnun^tli/e im iloruiuLoDi and piYninh h$
rebelU ; mui allpcil he should ^ecd u^ aictiluiet
to tlitin Hi iib« they wiU all d^« \^ilb ikpr
svraiid& ui ibi^ir h^ds befur ibey M\ m 1km ,
loyalty ; and awore ulleadgeoooe ta Uieir sii««- i
rrV^ f nn^ dtsyrcs he amy then Jtt4ge eliit ]
eiiWlduki' H.-4uiiltou'i ktbef bes npsetlteB| j
but that Utfiy had gotten aiie banou myt i^illlv ]
for that »t«>rjc irotii Irdaud, and aJibo ihav Cii
blotter ti^il i)im U^w luatterii goc io Irdan^aRd *
tJiAt tb«y \Hiy tbofic ou wbom such %Umm im
inOiiener , y*ti since lb«iv bavt oo nrdeni to«ftit I
conditions lo any rcbefU^ ib«y ahtowr bisfrtet |
ami the major 'gc^ueralL to beUe^e oo^ aodtikt 1
tbeir mea^ur^s hy their aueceft^ UM im o>aj«»tii
(the late king) h\9 fuJ-tber orders 5 aad t^f
ibaok liie major geoeraU ffir the gmd mi
of bii invilaiicrii, ihoujgb ibey are o*ifi" '
bad no hopes ol' succe;i» and that
shortly tudoavour to give him a rti|uj^
:ind that lh<i&«* of lUf^tn who lire iiiifthiiMl* hi^i
already seen and defyed ibe prince d' Om^
hia fny^g^tLs* ; ami ibat tliey bad returuwl diii
llariMttori's ku«r, becaus tbey bad
for it thati ^ley : And alter prodi
reading of the saids two bf^iuk of 1
and iTiLMsive lc?ltar aboveraen1iouvd>
of tbf ir majesties high comreii^weirpj
the estates of pariiainontt ihe Gaid air i
Dairy If i{de, th^ir tuaje»lie» advoeat, d#dir*
ed, that besyd^ l!ie deiMwitionca df lk$
witn^isa adduc4sd aj^ainsi sir E*an Caui^raQf d
LocbKeeM \ DouaUl Al'Uouaid^ youngar, 4
Bdaitt; Ihe laifil of M* Nawfcf btoo ; and
Grant, of Balliudallock ; be mmle uj*e of Uw
saids two bond a of association «i>tred into aa4
iign(?d by the laird of Loebxtel, and t>ih«Thi|li-
la ad erst, at tbe cattle of Blair, iu Avtgu&tt 1^^
and the other bond in January 1690, GuberyM^
by the visieount of rreiidray^:hi and athi '^^
which bond» tb#y obleid^e themselirea
to one aoolhet 10 bis miyestica aervice,
by Uk* place and pen»OD» appears to be ihe lilS
kiog^ James i and farder he deckred, ihal N
made ose of tbit saids bands of assiM'i*noat4inl
mis^ve teller for nduiniLcukting uf tbe ^'
batkn ag'ainst tbe aaida |)eraon!<» £tib»riv«>W
ibe|%of, and dciyrad thai the |irobiitiuii ^riiiiMtA
againsii lb« deiender* mig^bt lie read ofif aid
f otled singly as 10 e?ery onft of lh<: dofrJiJ^iir '
aud which waa ^ceordingiy done 1 Aad iIp
king and queun'^ majestiea, aud ibi^ csUlK* i'
parliamcut having considered Ihe loinaid IjM'
ami iwdytement for high Ireasone, fWfiewiill<
the instance of Chtlr majesiies advocat, agaM-
tbe Ibrnamed per^onej, defenders^ wilb 1^^^^
]Ki$iLii>ua of ttte witopfiKes who were
aud preset! t, and deponed in the siid
treaaoijer aa to ihe poy&ts admitted to Ihe
ad vocal hm ppobation in maimer fnnfcaMU tiu
a^faiust tbe dEfe^i^t John, viaoouot of Uiuidit
Mr* Datid Grabame, brc*tber to tlie siiil
eriout, lor bintiielf, and as air and i4ccir«i
Im' Hujd late ¥i^count ; the lord Dunheiitl P
eel
Buberyist^
VViliiam Grahame, of Balqubapbi
frequent invitations, they aamra him that'^they | Cannon ; John Cieiliand, ol' Faakcn ; t
amsatiafiadKtheirkiBgtalMkiaowaiyaeaiidltiark of llmnlertiibag i .- ■ - wersf
for High Treason.
A.D. 169a
[S30
Dglit; Mr. Collin M*Kenzie, uncle to
e of Seftforib; sir John Drammond,
lanie; William Crawfurd, younger,
lillan ; James Crawfurd, his brother ;
I of Strowan ; Robertson ;
Sdmonstoun, of Ncwtoun of Doune ;
I Cameron, of Lochzeell ; >
I, his eldest sonc ; llalljbur-
ilcurr ; and Hallyburtonc, of
hissone ; Stewart, of Appin ;
- McLean, alias M*Donald, elder, of
; Alexander McDonald, younger, of
ie; David M*Nei1l, of Gallocliclly ;
M'l^an of Dowart ; Donald M'Du-
inger, of Sclaitt ; Grant, of
joch ; and the laird of M'Naughtoun ;
foniamed persons were actually in
pains! their majesties aikr. the 4tb day
16G9, or joyned with any of the rebells
re in .armes afler the said day ; ami
Ifio considered the bonds of association
sive letter aboTcmentioned, produce<I
nl advocat, which he declarcfl he made
for adminiculatinff of the probation
he said Donald McDonald, yonn^er, of
ind Grant, of BallindaTloch ;
I and hereby finds the forsaid cryme
ie as it is found relevant, viz. that the
1 persooes were actually in armes
heir majesties, aAer the 4th day of
89 years, or joyned with the rebells
e in armes after the said day, suffi-
erified aod proven against thesaidJohn,
of Dundee; Mr. David Grahame,
•r; major William Grahame, ofUaquh-
lonell Alexander Caonon ; John Cleill-
asken ; James earle of Dumfermliniif ;
- viscount of Frendraught ; Mr. Colin
e, uncle to the earle of Scaforth ; sir
•rummond, of Blaclianic ; William
I, younger, of Ardmillan ; James
, his briber ; the laird of Strowan ;
ne ; James Kdmonstoun, of Newtdun
! ; sir Evin Cameron, of Lochzeell ;
- Cameron, his eldest son ; ■■
loo, of Pitcurr; Stewart, of
McLean alias M'Donald, elder, off
; Alexander M 'Donald, younger, of
e; M«Neill, ofGallaclielly ;
3I*Lcan of Dowart; Donald M'Do-
UBser, of Shut ; Grant, of
lodi ; and the laird of M'Naughtoun ;
fUBt teverall votes upon adv^seing of
ation as to each one of ySn, upon
cing of which interlocutor, William
Jrawfurd, for bimselfe and in behalfe
ficorietta Seton oountes of Wigtoun,
itcs of CraufunI, his spous, gave in
stalfoa under wryten, representing,
sni the said James, earle of Duni-
npoa ane assignatione granted to him
id ooontes of Graufurd of two thou-
ks of her joynture, did grant to the
let a baok bond, dated the 2nd day of
iSS years, declaremg the samen to
I fmnled in trust and for the behoove
idcowM and her children, as the
daid backbond bean; as also that the said Wil.
liam earle of Cranfurd having ane assignation
from tlic dcceist earle of Crawfurd, his father,
of all debts and soumes of money, hath right
to the soumes dew to him by the said James
earle of Dumfermling, his father, on sny ac-
couut wliatsoever ; and thcrfor the said WUliam
earle of Crawfurd, for himself, and in name
of the said countes of Craufurd, his spoutf,
lirotested that the doom and sentence of for-
fualture to be given and pronounced against
the said James earle of Dumfei-mliog shall not
be prejudicial! to their saids debts and claims ;
but that the estate to be forfaulted shall be
burdened and lyablc therefore ; sicklyke as the
suid sentence of forfaulture had not been pro«
uounccd, and therupon asked and took instru-
ments, which protestation their roi^esties and
the estates of parliament have admitt^ and
admitts ; and sicklyke captain Charles Strai-
ton protested, that (he doom and sentence of
forfaulture to be given and pronounced against
the viscount of Dundee, shall not prejudge him
of the soume of 5,000 merks a'rcnts thereof^
contained in a bond granted by the late vis-
count to provest Kennet, and in a translation
be him in favours of the said captain Charles
Straiten, and which bond was grranted sereral
years befor the late happie revolution, which
protestation their majesties and the said estates
of parliament also have admitted and admitts ;
And therfore our soveraign lord and lady, and
the estates of parliament, by the mouth of
John Ritchie, dempster of parliament, decema
and adjudge the name, fame, memory, and
iionour, of the said viscount of Dundee, and
Halyburton, ofPitcurr, to be extinct,
their blood to' be tainted, and their names to
l>e riven furth and be delctt out of the book of
armes, sua that their posteritie may never have
place nor be ab!e hereafter to brook or joyse
any honoui-s, offices, titles, or dignities, ia
Unie comeing ; and the said persons to have
forfaulted, amittcd, and tint, all and sundry
their hmds, heretadges,tacks,steeding8, roumesL
possessions, goods, and gear, mov^le and
immoveable, whatsomever pertaining to them,
to belong to tlieir majesties, and to remain per-
petually with them and their successors ui pro-
])erty ; And lykcways their majesties and the
estates of parliament, by the mouth of the
said John Ritchie, dempster of parliament,
decern and adju<lge the said James earls of
Dumfermling ; ■ • viscount of Fren-
draught ; — ^ lord Dunkeld ; major Wil-
liam Grahame ; collonell Alexantler Cannon ;
John Cleillaml,of Fasken ; Mr. Colin M<Ken-
zie, uncle to the earle of Heaforth ; sir John
Drummond, of Machanie ; William Craufurd,
younger, of Ardmillan ; James Craufurd, his
brother ; the laird of Strowan ; Robertson ;
David Grahame, brother to tlie viscount of
Dundee ; James Edmonston, of Newtoun, of
Doun ; sir Ewin Cameron, of Lochzeel ;
Cameron, his cld«rt son ; Donakl
M'Donald, younger, of Slait ; the laird ^f
M'Nangbtoun; ■ ' Orapt, sf Bailindal-
iJinay I^INVtlL, mf mMMB^ ; iiiJ «ir John
lll'L«iti, to W txcciiielifr llir iriil»t dtngneMl
•M iniimitt, aii4 iiwlerly tba iwlf» of troooiSiC
ftl «iii:b Ijroi^ aii^ plMtt» tad In micli mmuner
tf tllctr miyHUi^ or Uic Littiii »f yaitiMngtity
wr lilt comaimtwf^ nf jiiilfcHU'i^
Mjfiti mhI ttrihiw iIn; wM$ pen
. W«
iti«ir
mtmttfv, fttiil hoBoan, to be ex-
||i»et/tlictr hUnod in be tmnlr-J, «ftd their armev
to be rivL*ii funlk mod Jdetl out of tbe booics (»f
armeit io that tbeir poiteritj inay itfter h«r«
|feliee nor be abte bereafWr to bfwkk or p^vt
tiiylii!iDaiirs, itBceSt lifles «ir di^iliai in t^^ciic
tiol, all anil eiuHlry ib#ir Imiilfr, hcretad^a^
and g¥ar« inoveuble aiiii imnaotee^e, whotsom^
erer peilaiodiig U» IJiern, to bebng tn their tna-
je<f|jej, ftQcl to rem rim perp«tiitt|lj nHb tti«sD
A tilt their snccessor^ b pro|)erij. Whicb »is
|ircnounced for doom - and ivberetipon Ibor
miijesliefi ailrocat asked aod took ixuiliviiieDU.
398. Tlic Trial of Alexander Halt burton and Wm. Fbaseh, for
High Treason : 4 William & MAia% A. d. I695. [Now fifit
printed from the Records of Justiciary ia Edinburgh.]
tfHitu in lV«tiirUv Burigt ik- Edbburg^b,
prjiUiiH^ die titrn^iif Martij }6^2, jier no*
liilem rt polentem e<otuiirtti HobertUfii
C^miltCB dt Loibiai] iihiaaariaiti Oe*
OChImii. el iMoOftliNM viuml Ilomimini
C^immi rampbelU de AhamfikM, mmgi'i^
imm Duvidmi Iloiii^, d« Cfawrtg, lo*
bunem Laiidtft du FunntualiaU^ migi**
iryin AN^IiibiiUliim Hojie de itnnknjllor, ct
Utaipmriim Jncobuim Falconer d^ Pheasdo^
C?iimiiiiss;onarlos Ju&ticiarttE dlcti S, D. N*
ilrgis^ el Hegitiii:^,
Corim legiitimfe ifEroiatn.
Witlkm Frasfr, prisoners id IheTolbootli
of Edinburgh,
InDYTED mid accitseil, mt the i&$tiin<K? of
sir Williem f^ckhart, tltere majesties Bolliciior ;
«ir PaErick Home, and Mr. Un^h iNlrtinfiK
advocates, a^i^ssops to ibe ^M sir ^V'ilUani, for
the n>ajeittefi ititerest; Ttiat whereas by l!)t'
cooiou kw» the laws of thii and aU other Mel J
goTerned na|,iones» the criroes of irrasoTie atid
rcbelli4>na, and the aidinjtf, assistio^j, ahatciijg,
lappfeeingr^ intereomoadugi and kecf lug- oor>
respondetice with, or dveing' favours tn rtiMkl-
lest rebeJIs and trmi tours, are nuniabeable with
forfaulturc of lyfe, landSf an<l ^^cKidft i and be
tbe third act of the first p<«r]i^meot of kni^
iiiettt kmg James the «eeondt it ix ftatiUead
ordaitied, that if zuiy mati eomitt treiiaie
agiitist the kind's peraone or hh m^^itt, or
ryaei in fear ot weit aifninctt hini^ or ifctyik
tuy that be» eomitted tre^^^ne, or iuApliii
tbem ID help, redd, or eouusejl, or itufli ik
hmiss of tbem I bat are con? ict oftr^asotic, m&
bttlda tbem, a^fAitiest tbe liniq^ or ihaiftaJb tb
Kotis^ of there owne iti ftinheriu^' «f the kii^'i
r«betls, or th&t assaikieit the king_*i ciO^
shall be puubhed aa tinUotirs ; attd if asr per*
soae or persoti«; be sfasidered or snspeet eftrci-
soBe, iJUe^ shall }>e taken and reoiaioe lu firm-
aoc« ti'hile tbe lyme they have tholed mt^ u-
«Wi whether ttiey be guy he or fool) ; m^h
the nj-nty sef euth act ijOilianient <!^ereDtli kkg
James Uic fythf all persons were comauded la
ap]>rehcud rebel ls> and arc discharged ta re-
cept, sii|>|die, or doe far ours to tbetn ; and ht
the hnudrcth 6ourty and tfotirtb lict p^rtk*
ment twelth kmg James si\% all hh inajeetks
^nbjeet-s aie discharged tfi snppfte or rnKr-
eomune w\ih traitors or rebel! j{« or g^f e thcffl
any relieff or comfort, or any help, reddi »f
counselU lint to doe there outmof i dUigence to
ap^irebend or expell thera out of ilie conntifjr
m maner s^pcetfied in tbe said act | and be di«
tyith net ses^iua lint parliament tirsl ktn^
Charles the second, il h det^tared, that It fibill
be high treasoEife r<«r tlie subjects of tbb reilnic',
or cmy number of theitii less or more, upoii
any pretext whatsomever, to ryse or eontiMir
ill aroiei:^ to make peace or ^ arr, or any treili^
James the iihty It h statute and orrtainei!, that 1 or leagues without bis mwjesites speciall appfo*
DO mat) openly or notourly rebel I against tile
king'n pertone, under the pain of tbrlauHure of
lyfe, lands, and g^^^ I ^^^ be tbe tbretty se^
Tenth act tsecond parliament king James the
fBrst, it ia statute and ordained ^ thai no mait
witjiilty reeept, manlain, or doe faronr, to op«ii
and nianifeat rebellors against tbe king's ma-
jesties and the com on law, undrr the pain of
forfauUure ; and be the twetity fourth net sin
]iirliAiii«nt and fburty njQtb act twdt pu:li&*
hatione ; and be llie second act session second
parliament first king Charles the second, Jl is
declared high treaaoiie to levie warr or take
up armes against the king, or any comi^Ofi&t
by iiim^ or to intyse any stranger or olbeFS to
invade any of his domitiiones, or to wroit^ pmt|
or ^leak any thing that may express or declare
such ther treasonable inletitiones ; and be the
comon Jaw, lawes atid acts of parliament of this
kiogdooi, mi and pairt, is puoiihable as Ibv
J33]
Jot High Treason.
^■bkctnall crvine; NeTcrtheYe&s it ts of veritji
^kt ilie raids Alexander Haly burton anil Wit-
liam Fraser, haviiii^ shaken ufall feni' of Gael,
re«jH?ct, and regfaini to there majeslies auiho-
rity antl lawes^ hes presumcrl to comilt, an<l b
e'liy of ihe cryraes above mentioned, in sua
is the s«i<l Alexander Halyhiirton, haveing
&retl into a nvM wiclc<*fj jiml tbranable com-
Mnution with Michael MiJletoun, Patrick Hoy,
And I>avid Dunbar, flometyme [insoner in the
^tt^, and seTeml other persons, to surprise the
^■t and g^riaone of the Bass, where they were
^■sooers'; the f>aid Alexander 11 a ly hurt on,
^nh his accomplices, did, npon the day
^w Jane* last, 1691 years, or ane or other of
the day* of the said tnoneth, Burppyse and
^jake tnenrif^elvcs malsters of the said fort and
^■rrisone of the Bass, and notice btinjif given
HKreof to the lords of ther itjnjesties privie
)toiinsel1. they, by there act the seventeinlh of
Jtme liist, did rerommentt to sir Thotnas IJ -
^k^r^iouD, comander in cheifF of there tnajes-
^■B forcea in this ki nerd 0 me, to tnke stirh ef-
^fetaal course flfor reducinjj of the s*iid island
from the hands of the foresaids, who were in
the |josiessione thereof, wc he si ion Id think fitr,
&Dd ordained any of there mojestics heraulds to
paa$ to the bM if^liinit of the Ras«, with there
eoatts displayed, in there tusj est ies name, to re-
i^tiyre and comand the said Alexander ITaly-
hurtoiin, and the other personcs above named,
t accomplices, to dely ver up the said island
I fort ; and also to render ihemselvrs pri-
en under the pain* of treasone, cerlifyeing^
tiiem if tlipy refnsed they should he trcaKed
as traittoursi, with all rigour and fieverity.
Mid that without niercie, which wairand
yttL^ accordingly dnely execute againest the
Hnt Alexander 'Halyburroim, and the other
^■KoiiB aboTe named, hi*s accomplices, as
^^>eara hy the act of priTie connsell and
the heraiilds execution, nnd the said Alex*
^ll^sHatyburtouu, and the saids other per-
^^^■iiftmog' most conrem|)tuaiisly rciused to
^PHBedience to the f^id charge, the Imds of
pfltie couiisell did emilt a proclamaiion, of ihe
dail the tir^t day of Julty tliereaffer, derlareing;'
the said Xlexander Halybourtoun, MicEiaell
31idletoun, at>d the saids other persona, his ac-
eompUces, and all who hade joy ned themselves
withtbemi in surpryi^ing^, muntaing^, or defend -
\ag the said tfarisone of the Bass, ^[iiilty of
o^€n and manifest treasone and rebellion, and
^ht to be pervewed as traitors to the kin^, and
chitrgvd and comanded all there majesties
8, that uu pcTSone presume to aid^ abate,
harbor, or any wayes Ktipplie the saids
or any of them, under the pain of
btgB^reasone ; and that they doe nril keep cor-
BiWDdence or intercotnrouneing with I hem
witnmit warrand of the privie counsell for that
tfftct, under the pain forsaid, certify eing such
Thif wnnl which occur* fpequeatly in the
, b anvformly so written, that it may be
leorJaity. The context seeais to require
fornter.
i
A. D. 1692. [83*
as adiall doc in the contt-airie, that iKey ahalf ba
hohien and rcpnte, treattcd and proceeded agahinC
ai airt nnd pairt of and acci-ssfiry to ihe fonaifl
cryme of trea!ione and rebellion a^inest lh«
king and hi* auihoritv uilh ihe oaimfjst setc-
rit^ of the law ; An^ yet, notwithstanding^ fhq
said Alexander Oalyburtoun, wuh the naida
person es and others, bis accomplices, did most
presumptuously frortiftt, and by open vndencd
defend and umntain, the said garisone of the
Bass, against the king- and liis authority ; Ad
also, the said William Frascr haveinier enlemi
into a most wicked and traittcrous contry vancc
wilh the said Michael! Midleloun, who was ^
declaired traiitour by the for&aid proclanan-
tion, and Crawfufd,of Ardmillan, younger^
a forfaulted persone and others, his accomjdiecs,
for supplycmg the Bass with provisionea eHer
it was surprysed by the said Alexander Haly-
burtoun and the other persons abore naDied, he
the »aid Wilham Fraser wiih others, his accom-
plices, haveing hyretl a boat under pretence of \
carryeing son^ provisionts and hut»uo)d fnrni- 1
ture from Ixith to the Elie, upon Ihe lady 1
Ardross accompt, and there hew\^ a certain
f|uanliry of mcnlf, bisket, pease, butter and
brandie, and oth^r provisions put aboard the 1
»aid boatt, and when the boatt was aett to ses/i
and frteerin^ o?er to the E(ie, the sail Willfanl
Fraser and hts accomphces did force 'the boat* j
men b> a ltd- there course and (fap straight to
the Bass ; and when some of the boatmen
speracd to be refractorie and unwiUing, the watd I
Wilfiam Fraser did beat some of them upon i
the (ace, and did thraw about there nose i And
when the boat anyved at the Bass, the mi4 ^
William Fraser was very aclif e in helpinjf up
the provisions to the rebetls in the Bass, and &#
soon as he came there he was made guntier^
and did Tyre severall cauounat fkher boatts and
others as ihey came by, of desig-na to hare simk-
them, orothcrwayesto have yielded to thes©
rebells ; and he and his other' accomplices did
keep the hoatti^eti prisoners in the Bass for «e-
verall days, and bade almost sterved them for
hunger; And ordered them to put on a red
coat, tal&e up armes, end stand cenlry to there
assistance; off ihe \*hich treasonable crymca 1
above speoified, or ane or other of them', the
saids Alexander Ualy burtoun and VVilliata
Fraser are actors, airt and pairt, which bein|^
found be atic assyse, they ought to be nuniibctl. |
With forfauhur of lyfe, land, and goods, to the
terror and example of otliers to cornitt the lyke
hereafler.
PerscB'ar^^Mr. Hugh Dairt/infiki tdFOcal'^
as assessor to there majesties sollicitor*
Gontiuued till next day at 2 oVlock.
March 8th, 1692.
Jntran*
AUrander HaJt/btiriottn,
William Frascr ^ prisoner!.
Indyted and accuscti for the cryme of trcn-
soQe m forlyfyeici^, DQftQtliDio^, «Upph«iD^y
9Si]
4 W. * M. Trial qf Alexander Holifbttrion and IVm. Prater,
I
I
«nd tAkfitiii: im. And k^^ping out, there tufijes*
%\eft Hiri luii) (>:vi i.^^tu' of ilit> Uas¥. aijfiune&l tbere
iiin I mimer meu*
Per»efver^-Wlr, Hufih DahympU, adrocatp
Pr» ifu^^A DaltympU proiluc*^! afie warmnd
of piivle ctiuti^ll Ibr p^rsewintf' iii« pantt&lK
wliereof ttie lettor fullowes: *' Edinburgh, the
" ti«^efity-ttoe <l«y 4*f J«wuAry, 1692^ ye^te^.
^ Tbe lords Qi iUeic majeslteii prlvie coutiiell
" doebcfeby |j«rrvmL>iorly appouiland rei^iiyre
«« tliere maiestics sdlkitor or his atsystauts,
*^ wjihoat mrlav. io munt sind piDstet'ute an In-
•' dYtineiJlcif I lie lords com luis-
•* jMooera uf J : n.tst Ak^raoder Uii-
M lyhurtoun, uud W lUium Finser, prisoDers in
** iLc TollKJOib of Kdioburght whirh tbey were
!* appoyuled to doe bj a Ibrmer Interloquitof
** tnd bes neglvcted. Exirncted bv nief
** Sm: Suburib, D. MoNcREUE, CI. '8. Con,"
Sir Jlofttrt Coll and Mr, Chtirht Grai/, ad--
▼ocatts, beio^ allowed to propone defences for
tb<* pantidk, they declaired that Ihey would
propone no defences for live jjan nails.
Air Ha^h Datr«/mpie^ as per^war, desyred
therefor that tlie lybell might be advysed and
vemilied to tbe knowledge o( ibe inqu^t.
The IxJTtls justice generally and commis^iian-
en of ju^tieianc, having coni^idered tbe indyt-
nicsl persewed by there maje^lies soUicilor and
kif mystitntSf aig^inest Alexander ilalybitr*
loan uuil Wjibam Fmser, prisoners^ tbey fiind
tbf said indytement relivant to mferr tbe crymes
and painefl oftreasone lybelled, and reaiitt?i the
IMiroe to tbe kno\¥ ledge Wane Assyne,
Sk Subicribitvr, LoTTllAHy L P* D*
AsswA,
Horue, of Nynewalls.
IfVdliaiii Cunin|i^hji(Titi| off BtTebfiruban*
► Capt. Patrick Cbalmerat bcltmaker.
■ — ArskiDf of Ba%o« in.
> Jainea Brown, mercbuui, in tuliDburgh*
^ Jamea Livinij^toun, mercbaul, yr,
k John Blackiituiin, t»c*ritri jr. maker} youogtr,
' AlexojKler Rob* risoiii a^l^^^T.
' Andrew Hi'own, wntcb maker.
Jaliii tiruce^ teltniaker.
Kobert SjflndielandSf metohaod.
Andrew I^lilneri masson*
Ab'Attndfr Hji'j;^tiif wri'^bt.
Alf-xandt'i- Hobttt!M)n, armorer.
-^ iobu Naiiinitb, w right.
The Am^e lawfully sworoe ; uo objecUon of
the law in \Ue coDtrair.
The Peivewer for probattoa adduced tbe wit-
licsaea eflerdeponeiQi^.
John Liddell^ souldier, at Castletoiin, a^ed
(WL-'iiy-lwo \taue»t unmarfyed, purged of
intilict\ prcjuchce, hatred, i^^^*ilj, and pnrtiall
eiitin>i:f [1 . M<i siiU'ttittly tiworms de]»ooe« ihat
\i\ at June the deponent biinpj
in ^ ^ ly cualls IVom ^ >i^s>ell up to
the IV aii
aomiM «fe|Kiliieol|
a shut Mi a lud a cry^ loK
and iiniiK'i i the deftmeolj
Alexander iUUvburUiuu, tht:
ensign e Hoy ami enaiarne Dtu
llier prisout^r^ in tlu- ^' • lur lo ini
head, with three guns .inda prt
to tbe deponent aud uulfl^, ^'•iio were
boat, lyeiiig iniediatly ttoder the etitrie ul ibt
Has>{, and did threatten the depODCDt aod Ibi
rest wbo were in tbe boatt to ahoc^tt at tbesi,
and kill them if tbey offered t(» come^
the Bass, and would not instaDtly goe \
with tbe boat ; and depones, that whe
deponent caine last out of tbe I*
bout the day foraaid, he left Job i
centineil standing- upon his •
wboll and sound *, and that he
ftsid sbott, putt down to the tr^
crnn, and waa shott through the sV
de[K)nes that they ordr-- :f t'-— ■
bt.mUnlitle (ynie, till. I^
ing to the Ha&a eaiTiiJ ..... ..;^ — .., v.
barrel la of aile and two dozf n of wbyt
or thereby, was taken up fiuni the bo
ordered them to May till that v
there removeiug Bhould scarr
from comein^ in with I be
icientle, he waa fur a con^i^;
a souldier in tbe BaiiSt and i»av\ aud Liu'w Vii^-
ander Halyburtoun^ the pauQaH,ai>d heacdbiia
distinctly speak the tbrcaUeuing worda of cribi
pannalliki depone be cannot wrwil.
6ic MunLiiur^ LurtiUB^^ L P* f>*
Ilitchard MitiUtauTi, sooM--*- ^* Ci
ogi'd twenly-ei^^bl yeurtN, i
Rtalice« prejudit-t^f hatredf . j
[couucill] aud solemnly sworn
Jbrmis precedent I tnomnil^i^ ; un
that Ilamiltou, the ccniiuelU woa ail b
of his wounds when he catue to ibc
that the first persone that appeared lo tb#
neot and the rest viho were m tlte bdiit, *
atiy after surprising tbe liuss, v
Halyburtounf the paund^ ^illi
hand at the stsii bead, and tbrc^ucucfi iit«l
l>onent and tbe rest wbo were in thv hiMil,if |
fffl'ered to come up to the Basm he w
tlieiu ; and the de|»onent haTeing
nanniiU wli U tir tueruif^iL llu" fi,aiJ Ah'
mu '
fur III I
paunali tbreulttned titedt ptuieiit, he Mud
depooent and the rest wo»i!«l gr>e uwh
tbe boat and not offer to <
sustain tio prejudice, otbei \
and tliert.'atler the de^.jrM i .
and the other two pei^' ii - »i|f-
ill tbe Bass. Cj.'.mj ; . .'<■><(•,_ li..j w ..
two yeares in i!'< !".-i^-,, :j<iO km-
Alexander lialybui t
be bcs de|Kjned ; afi-
shall answer It* GoU, ,-
vfieiit*
Gt^ffe PfirteotiS, Rrarchemoiint herau!d|
solemnly sworn e. p«rged of lualice, |>i:ejuiiice,
ami ptirtlail counsel), and aged foiirty-six
yeare*, or thereby, marryed, and interiogTit
vpon tbe trueth aad f eritie of ane eiecutUm,
tinder hi» hand* dalted the twenly-first of June
last, in obedieDCe to ane act and onJ nance of
counsel), dated theaiJtteintof ilie said montli of
I June^ ordering' the deponent to charge Alexan-
' der lialyburtoun, the pannel!^ and oiiiers» to
surrender up tbe Bass, and to render tliem-
seWes prisoners, under tjjc pEiine of treasone, as
the said act and on i nance more fuHy beares ;
depones that in obedience and confortne to the
md act and ordnance, the deponent did truely
and realtie execute the saine, conforme to
\%he tenor of the said execution in all points
for the witness therein contained ; which
Act, ordinance, and execution, were judicially
read and sho^'cn to the deponent ; and fardel*
[de(K»DCS, that efter he hade execute the said
r ftct and order of the c^iunsell in the way and
liiAEier contained in the said cxeculioiie, a
ntaa who owned his name to be llalyburtoun,
■poke to the deponent over the wall, and told the
deponent that they could not render the Hags,
I' flbr thffy thought ihey would be in no better suite
then they were in before causa pattt ; and this
IS the trueth, as he shall answer to God«
Sic Sulmrihiiur^ G.Pohteous.
Mtnrie Fratert Rosb herauld^ aged fniirt}'-
y«ar5, marry ed, pur^etl ef malice, prejuilice,
|»artiaJl counsell, and solemnly sworne, depones
€onJhrmu precedent i ijf ommbiis, with this va-
tiaiiOu» (hat he does not remember that the pev-
aon who soobe over the if all head ownt:^! Itis
to ne H*i1yburtouo ; byt he heard the
say that it wus Alexander Ilalyhur-
knd ensiffiie Midktoun with him ; but tie
not diatmctly know him, the wait head
Magao htgfi tiromVhe place where the deponent
iriif which act and ordinance of counsei, with
tbe eicecution thereof^ were showen to the de[K)-
li«»t. C(t$tm icteniie pattt^ ffarder ilepnes, that
wlien the paiiera were towed up the rock, to
'Ikit bast u( his memory, tie heard of tbe meti
frb^fflMte over the wall say, they would not
fender the Bass ; and this is the 'trueth as he
saswer to God, Sic Subscrtbiiur,
klBSHY FraSCR.
fairkk Sievinson^ ierrant to Henrie Flet*
'cW, of Saltoun ; aged t»venty years, mar*
ryed, purged of malice, prejudice, hatred, ill-
iriU» and partiall counsel 1^ and solemnly sworne;
' dapooes citnformit precedent in omnUnu^ ex*
• ca|it that he does not rtMneinber ivhat wes
] apokea over the watl, tho he heard a voyce, it
I teiog at a diiitance ; thisi he defwoes to be a
trueui ag he shall answer to God ; the war-
L iTiiid and order of coutisell being pubHctly read
ud iliowen to him.
Sic Subicribiiur, Pat, SStctjkson.
ja^n Sfoaa, serj^nt in the earle of Lev en ^s
r^ment, a^ed twenty-six years, unmarryed,
pnrg^ ami tworue, depones that eltet the 'sar-
[S58
pryt^ll of the UAi*i in June last, he w^ one««f
IhoRi titat was tmployetl to lye at CuKtletoun to
wait the mc»tion of those that wetic within thai
inland, and that about the end of harvest ba
was sent in with a drnmmec and two mariners,
with a printed act of indemnity, to make au«
offer thereof to hiin who commanded the giri-
»on for himself and the rest, if they would sur-
render the Basse to his majesty, and according*-
ly he was pennitted to enter the ruck and called
tor the commanding officer, andoue Mr. Midle-
toun came to him and owned himself to be tha
person who commanded there in cheiff» to
whom he delyvered hiscomission, and gave
hiai the act in his hands, wtio al)er reading
thereof hLifleft and appeared verie dissatisfyedi
bnt cannot be positive wliether 211 r, lla^ybur-
loiin, tbe panuell, was {^resent there, when bt
first reqnyred the governuur, or if he came
souietyme ufter ; but depons he heard them
speaking together anent the said indemnity,
and beard them express their detestatlttft
ai^airiest the present government, and heard
thera say ihey would receive comand from
none but king James, who was the rightfuU
kin^, and that tie knetv l^lr. Hatly burton, attd
that he hade anword about him and a guue,
and that they detained the depf>iient prisoner^i
from Thursday at two o'clock, till Friday in the
evening, upon the pretence that the king^s
soukliers iiade taken away there boat ; and
haveing taken a view of \Villiam Fraser, pri-
soner at the bar, he thinks he sawe him in th^
Bass at that tytncy when he went in with the
offer of the indemnity, ctium paiet ; and this is
the truth as he shallauswer to God.
Sic SubtcriOitttr^ Jomn Si,osi«
Jamtt Wishari, a drummer in the earl* of
Leven's regiment, aged ihrttty -three years,
married, jmrged of malice, prejudice, hntred,
ill-will, and jiai ti^ll ctiuo^iell 3 depons that be
went along vfith Serjeant 81oass from Castle-
toun ta the Bass, in the end of harvest of laatt
with ane ofler of the indemnity to those vtbo
had Burpriaed the rock, and that the aerjeant
went first up, and left him and the two mariners
in the boat, and that afterwards he and the sea
men were caHed for, and a litle English boy waa
put by thetn in the boat, and when he came up
hesawe Mr. Hallyburion, and two or three
more communing with the serjrant, but did not
kuow what past betwixt ihem, but they thrust
the two seamen in to the boll, and did detain
the Serjeant and the deponent all ntght, and
forced them to drink king JamesM licalth, and
ane other boat haveing come off from the land
to see what was become ot them, Mr. Midlc-
toun ffave orders for Htvleing a canon ioslioot
at it, hut Mr. llaflyburtouo was agauist it, and
tbe deiwmeut thinks the distance was so great
as the canon would have done no «ikaith ; and
fardpr depons, tliai they forced him to pull the
feathera t»if the sollen goose, and that when he
wasgoeirjg uway with his dmui, Mr, Midla-
toun caused lake it and hts sirck^ from him*
but eamiot charge their tncittUttes tipMi
4 W, & M* Trial ^ Aiexand€r Hdtfhwrton and Wnu Fraser^ [S10
begODQ ; ftod ibitl Mr. Wrmer offerd tlie depo^
Deiil a reed coM, and he siroTt; he would nrrrn
lake up armes ay:akiifit king Wj|Uain« p1ii«miD
Mr. l]iiJyUurt'>UD deayrcd Willjiin Fnacf ta
let hitf^ ftLboe to save liis uath; feud dtpcKKi^
tUikt tbct^jr wtte vetj iU ti&ed^ li&y^ng osty t
|ieck of lue^ll in the »eek aaiong Ibur of thctn^
liud tliu 14 ilie tfo&tb as be «h&U feuiifrtt 1<»
GckI ; [kpotif£ he cmtinot wreilL
Ahmndfr Hankeilicr^ seaman iq Baral-
island, a^d fuorty jeirs, or thereby » fnirryoi
piiTffiedf juid iWQ] lie i dtrpooes Ibal be vras one
of ibc »iif]Uiien in Ibe boat Ibrsaid^ and thM
wbcn tUcy Here a boat losbkeitb h^ saw Wit-
lUiii Frap^er, lim (jatitidl, with tlie rest, ooropdl
tbe se^mcQ to stdr towards tlie Da«» ^ and ti
rei^aird of nome of there areraioD b« ■IM
biiri hti^l EdMrard Serples on the mantli, tt4
tak« Jtihft Thomson by die nose, and ibtt Wi^
Kam Fra»er trei verie busaie m the dt^lvadoDf
tb^ boitt ; and tbat tbc doponeut b^^mg takes
jiritiotjcr wirh tbe rest be iaw bini aboot oa
of llie gtiua on the Basa at a bolt ^oetug ^|i
and tbat be would burc forced tbe depooent in
put on a reed coat^ wbich be alto|^ier rt^m-
ed, bot he was neces^itat to stand ccotry lu ik
iiigbt wilb lber€?stof bin neigbbouw, wljcfief er
he was eoinanded | aod de|Kides tli:it >1r. il*^
l^'bnrlociii carry ed Ttiy civilly to bim ; ul
lilts ii tl>e truelJi &» be jjlmll answer to Qod,
SiC Subtctibiiur^ LoTaiAN. L P, II. (X
Tbe Persewer, for farjier probation apioat
Wmiam Fraser, adduced l«s owtic Petiibn, wd
bumble Acknowledufeioeiit, wriUeu on the back
tbereoff, wbereoff tlie ienor foUowei :
Uoto the rigbt liooourahte the loiita justkv
genemtl, justice ebrk, and cotumi«a«ooeri i^
juaticiary; the bumble Petitions of WillinB
Fra^r, prisooer at tbe barr^ shenetb^ That
where the petitioner upon bb comemg fortb of
tbe Basi, in Eastj in order to bis takin;^
tbe benefile of bk royal! m^je&tie« gracious ^
of iodeminty, wa* tbe ver^ next day be caoM
to Kdtnburgbt to titat efftici, ap|vreb<^nded pri^
soner, aod did aud represeut tbi^ bis deiiigne to
the lonis* uf privie counseU, by a foi«iner peti-
lion ihrow^ing^ bitnself on his royall mfdestie's
inercie, and resolred to propone tta dcleD<«
againeat his iodytment ; and uow slandiof ac-
cused beibr yoor bp^a tor the cryiDes cootaintd
in my lybeU, in prosecution of my fbriner ap^
plication, tbe Kupphcat^t as of bt'fore bombly
reprchi^ntd to your lop'i, that as I have sincere-
ly ackunwletJged all I know in relaliofi to tbese
njattei^ fur which I ame accused, so 1 in lead
to propone nutliiog by toyself» or any lawyefi»
in my uwne defence, but simply remjttfi mjseU'
to \m royatl majesty j ^>r h\B gtacious pardon
and indetiinrtjf ; and therefore humbly crates
yoor hii'n will delay my try at I till bia m«j@-
lie*B royail pleaiiure be knowen, ai to my paT«
tic lib r case^ or otberwayes dispose of your pe-
titjoner in tbir circum$;tances, a^ yonr lop's out
of your Jiiikits dciocJiua d&U goodues iM
«»1
Wr^ Hallyburton the ptinoEil j and depone* he
•awe Mr. Hallvhuiioo, the panoallt bare a
ifaitn in bi« hand; unit ihn is the trueth as lie
*bMi auKwvr to God ; dt?fM^nfi bo Cannot wr«iU,
&c SuOariHtitr^ LorRiAir, L P* D, C*
David Chriilall^ hoitiuan and ikipp^rof the
J ami, of Btu-nUibnd, aceiS tbrttiy-e^ht
jear«»8, marry pd^ purged of luahce, prt^odicc,
ill-Hill, aud jwtrtm I r^o unwell, and aokiunly
Kworop, depoiies thai in tbc monirth of Au;|0»t
la«U thr boateaJM theJaui^L^of Burntblandf
i» hereof the depODeut wan one of tbe ^aillorBi
Imm iytia^^ th^ii at Leith* waa fraughted to
tiw Ff_jffle-sydc to Carrie some proiisbns to the
fiinrth iiid4.% and that aiuoopt other pasttengertt
IVilliatti Frascr, the pan nil now at the barr.
Mid otie Mkld tetoun^ were tivo, anil when tht^y
Mtro out, lliese two persons and others fell ujjon
lh« de(Hrne0t and the other boatmen^ and com-
f^nlcd thetn to change tlieir cm^e, and &teir
ilitigUlo tbe Bass, and the de|>onent and tbt?
^Dl^ MMneu showing their unwillingness,
Hm ^d hmt tbeuO) and threatenerl to kill them
M mcy refuned ; and that Mr. 31idletoiiu did
Jiold « loaded pistol 1 aod a bygouctt to the de-
pooenls breast, who was tlien siuintf at tbe
lidme, and that when they came to tbe Baa^,
the pas^ngers took out all the provisions, coti-
liisttn^^ of in ea 1 1, biskot, hnllet, brandy, &C. up
to tbe tkss, aadtouk the deponent arul die other
lioatini?n alougst wiib thetu^ and keeped them
there about the space of six days i and that he
«awe Witham Fraeer as active and bu^ie as any
Mher; and that he heard sereralb shottathey
tyme bo was there, wbich he cooceafes were
lefdled »it timber boatt^ gt»dug by ; that be and
the rest were forced to stand ccntries in tbe
nif ht tyme ; and this is tbe truetli as be shalj
ao£wer Uj God ; dep(?oeA be cannot wmitt
Sic Subscriifiiur^ Lotuuin, L P. II, C
Edteard Serpletf Eeaoian in Bumlisland,
ftgfd threttj-Jour yeareSr nciarryed, purged,
■l|i inrorDe ; depoDcs that he was one of the
iHiatmen in the abov^ mentioned boat that took
in tbu provi&kiDs which were prc^U-^ndcd to be
^iug over to the Elie, and that William
Frascr, the prisoner now at tlie barr, was with
iliem ; and wIkhl tUey tvere about tbe north
syde of lubb Keithi the passengers eomanded
Ihem to steer Ion ards the Bass, and particu*
iariy William Fra^ser did beat tbe deponent on
Uio inoutli, wheu he did not so readily ciMnplye
with bis demands ; and when they came to tlic
Bass, the said William Fraser was also busiiie
aa any of tbe rest in helping up tbe proviiiions
ny th« rock, which consisted of mesll, peise,
hisket, braudie, and other things ; and that he
aud the rest of the seamen uere tbrcibly de-
taintij in the Ba^s ^ and that he saw the said
WjlUutn Froser shoot some cannons at fisher
boai^^ aod that he heard his neighbour who
stood with biu3 on centry say, that tbey pur-
posed by it to dmun tlie boati?, and when
if wan, th^ ohl gunner, came near baod, Mr.
, JTrtsc^ iti9vM mi k4 hiui modle but ba^e him
fir High Treason*
. And the pethiooer, bis poor wyfe
Ireo, shall ev«r pray, &c.
SnAfcri^t^ur, Wii4~ Fraser.
res the said William Fraser's iudiciall
edgement, written on the back of the
tion :
Edinburgh, March 7, 1692.
IB Fraser, the pannall and petitioner
esigued, being called to the barr, doeth
f acknowledge, in presence of the lords
issysers, the within written petition;
ler adds and acknowledges, tnat he is
f concurring with the other persones
f bell, in carryeing in proTisions to the
ad surpryseing the boatmen, and mak-
I prisoners, and carryeing them in pri-
» the Bass ; and that he assysted with
of the garrison, to detain them pri-
1 the way and roaner lybelled, as also
tirr with the rest of those who did hold
Bass, while he was there, and is sensi-
id heartily sorie for his g^ilt and ac-
to those crymes, and does humbly
imself at there majestie's feet, humbly
and imploreing there nnercie and cle-
nay be extended to him.
SiAKtibiturf Will. Fraser.
Lothian, 1. P. D. C.
[iords ordained the assyse to inclose,
irae there ferdicte to-morrow at ten
March % 1692.
lid day the persons who past upon the
f Alexander Halyburtoun, and William
prisoners, returned there Verdict, in
! of the saids lords, whereof the tenor
ssyte all in one Toice, by the month of
MDe, of Nynewalls, there chancellour,
it soffieiently pro%en, That Alexander
ton, the pannsil, while prisoner in the
deaoceasione to, and joined with others
ffmng the garrisons of the Bass, and
es ffmdt it proven, that the said Alex-
alyboftoan wes seen with a gune in
Island theicafVer ; and tads William
A. D. 1692. [84t
Fraser, thejpannall, i
r, the pannall, ffuiltie of the crymes ly.
belled, ooniorme to bis subscrybed oonfession^
and the probation adduced. In witness wber-
of thir presents are subscrybed be the chan-
cellour att Edinburgh, the 8th day of March,
sixteen hundred and ffour score twelfe years.
Written be James Liringston, clerk to the said
assyse.
Sic Subicribitur^ Jo. Home, Can.
Ja. Livingston, Clk.
Doom continued till the 16th March instant ;
thereafter to 24th.
The Lords commissioners of justiciary have-
ing considered the Terdict of assyse retnrned
againcst Alexander Halyburtoun and William
Fraser, prisoners, upon the nynth of this
instant, whereby the assyse doe find it suffi-
ciently proven, that the Mid Alexander Haly-
bnrtoun, while prisoner in the Bass, hade ac«
cession to and joyned with others in surpryse-
ing the garison of the Bass ; and doe lyke-
wayes ffind it proven that Alexander Haly-
burtoun was seen with a ffune in the said
island thereafter ; and wherd>y the said assyse
doe find William Fraser, the pannell, guilty of
the crvmes lybelled againest him conforme to
his subscrybed confession and probatione ; they
therefor, lie the mouth of John Ritchie, demp«
ster of court, decerne and adjudge the saids
Alexander Halyburtoun and William Fraser, to
be taken to the marcat cross of Edinburgh,
upon Wednesday the 95th of May nixt to
come, betwixt two and four a'clock in the after-
noon, and there to be hanged on a gibbet till
they be dead ; andordaines there names, fame,
memorie and honours, to be extinct, and there
armes to be riven furth and dilate out of the
boolu of armes, sua that there posterity may
never have place nor be able hereftcr to brook
or joyse any honours, ofTices, titles, or digni-
ties within this realme, in t^ine comeing, and
to have forfaulted, emitted, and tint. Si and
sundrie their lands, heretages» tacks, steadings^
roumes, possessions, goods and gear, what>
somever pertaining to them to oar soveraigne
lord and lady, to reraaine perpetually with there
majesties in property, which is pronunoed for
doom. ' Sic Suincribiturf C. Campbell.-^
David Uoue, Jo. Lauder, J. Falconar.
US]
i W- * M, Proceedings agaimsi Jama MiddUHmin and orAcri, {144
tB9* Pracecdiog^ against Captain James Middletoux and ollim,
for High Trcasoii : 5 William & Mary : a. i>. I694, [Now
fir&t published ftom the R€a>rds of Justiciary at Edinburgb,]
Cc^BU JorrtoAni^, S. I). N\ Rtgit et Ee^tnei!
decriiio ncmtj ilie men bib Februarij, millfc'
it mo sestcenteifinio nOLiaj^imo quarto per
^^ li imombi ics V i ro», Domi u jj * CoUi* i j Cam p <
^^^ idl de AtwrucbiH, r^lag^Litnj Dsviiteiti
^^^^b iloine de CnK«-rrt^, DomtQij Joniioeui
^^^K Jjuidt? de Foiiulai»litJI, mngUtruiii Ar-
^^^^^ ubibaldura Hope de liiinkfillor, et lua^s*
^^^^P trtim Jaoobum Faleouef de PheiHilOf ooui«
^^^^ tn iMionariiK j ustidarij Llict 8, D* ^d * Begb
n
Cum t^tttimc d^rmiUft.
Julian*
Cftj>t*in JiitNct T^ndietmntf
Wiiimm IV ft ham,
Wiiimm Nichi>iMfnMif^ &oMwf^ h the Bajs^
Jithn Vn/ttcr^ laie macbafdin Edinhurgb,
AH priiioners in ilii^ 'rolbuoiii of Edeuburgh.
TnB YTED end accu«ed al the inKtanc^e of sir
jAinci Stewart ^ I heir mftjest»tf« ftdvr^cal, tbat
* The Ortbo^aphy of tbe record is pr«-
KTved.
fin the small and rare CoHe^stton of Jaeo-
bilical Tracts, f ^It^moirg of lord viacouol Duo-
dee^ :^p) published ju Tj^mduD, 1714, is ^jveo
the iullotTiJiif artkle rekilLigr ig tUe em^ of
t h esc persons 1
** 1^ Skgt of the Bail.
** The Bans is a strong rock in the Fryth of
Fartli, ntdudinjof bctweeo Fife; and East L4f>
thiaia, wilhin five milofi of Dunbar, in ^vhicb
lliere w^.^ a ^rrisOEi of fifly wet), commanded
by a citptaiQ and tiis te€p«€U?e officers, whereof
Charles Maitland was proteniour, lGiJ8, acid
flel^erided it strenuously ibr his mastc^r, king
JiimL^s, till 1690* Then bavinj^ iniall hopes ot'
king Janies^K restoration, wstnlin|^ prorisiooa,
ammunitiop, and other nece^^sariei^ was forced
io giva it tip to tbc g'ATernmeni, who made
Mr. Fletcher of 8.dlon irofernonr, he hanng
four of king Jamcs't officers prisoner, they
boldly surprised the g'arnson atid tient all the
soldiers ashore, which being^ reported in the
country, whem there were many loyal ikxnl -
lies, I bey wej^ supplied wilb men, proviiioos,
and arnmuDLlJon. Inttrlligenee thereof beto^
CEirried to France to kiuyf James, there was a
ship sent iriih all sorts of provisionaand stores,
and two boatSj otie that carry^d two pattareroes^
twelve niusquctu^ and rovreil with iweke oar^,
and another sjnaller boat,
^'Eut alkii¥&rdfl their |ifomoQi falling
wberas by the common lawe and tbelmifstf
this aud all otlier w^ll tj^nvefned iiauoiiS|(bt
crimes of treason and reheihon, aaJ Q^m
and hoatility ag-ainBt their mar— *"^ ^
aklmg^, assjfliiigr, abatemg',
com lining, and keefiing
rpbirUa or traitors, or op pen
11 ishahie w 1 1 h t be forfauU lire ©f I yfe,
^imh, and parttcobrlie by the act JwiD«ff
parL i4t, cup. 3d, it is statute^ thai not
openlie or n^Aoortie rcbeli a^aiuH tba
I^rson^ noder tlie jtain of torfaltiire
lands, anil j^oodit ; and by tiie act af pai
Ja. tat, it ift itatutei thai noe man re<rtt,
taine, or doe (aiotir to open t\u{\ m^ntftiit l#«
bclU against the kin^^s rnqjcstin iindf»r Hit
iWesaid paine ; »3id hy the act J a. 3, f«rl««
cap. 24, and parK t^, cap. 40, H k staMHh
that if any com mite ti^cas^o afpitt^i the Mqf^
l>enjooc or bis tnaje^li^^ nr rysc*s in leaf «f Wilr
a^inat him, or receu^ or ttippties any Ibtl kM
comilted treason^ in hetp, i^dd, or c^un««^U, or
etudes the bouses of those that areoimrkldf
treason^ and bolda tbcm against ihc k\n^^ 1^
short, the garrison icnt the Iwehe oar*d bait
by nii^hti tn bring otf some sheep and other ac*
cess LI lies, which they frinjueniiy n^ceireti froni '
their fneiids, and the gui eminent being in*
formed thereof sent some companies to gi^ant
the coast] who surprised acTcral of the j^ani-
son, when they came ashore, and thereby tb«ir
conimunicAtion with the land being stoppdj
they went ont by ni|rbt in their boats^ ao^
touK sercral ships, one laden witfi salt, wbeiHSi
bavini^ taken what was c^nvenianl, she wit
ranssomed from Ediohurg^h \ a Dutch de^fM*
which they pUnidered and put o(f a|rain \ aad
a ship LadL^n with wheat which they thoug^htio
have carry pd 10 the Baas; but ibewiud iitqt-
ing cnntriiry drove them to tiie coast of Mon-
Iroiie, wh^re she run asbnre, and the laea
pelting safe ta lantl dispersed in the country ;
and ftiMlnii a^atnfihort of provisions tbey vttfA
in ibcir hoat; to the isle of May, where tbey
took several sheep, and what coab their boat
could carry. But the governmait beings en-
raged at their repeated bolduess^ king Wik
liam ordered the whole rercntie uf the fcilf*
dnm to be expended on thetr reduction, tod m
iliat account sent two frigates, one of sixty and
another of fifty guns, who lay battering ivt^
days without doing" any damage to the g>f*
rtson^ though the ships had several of tbetr
men killed, and their rigging and sails cut sad
shattered, and their ships so much damnified,
thai they cost the treasury of Scotland about
500/. to repair them.
* ' Mennrds there were two &bipft ftppoiiited
shall be punished as traitors ; and by ibe act
C'hii. '2, pari. I, sess. 1, cap. 5, it h ileclarcd,
tkiMt it &hall be high treasQD for Ibe subject of
tbts real me, tes or more, to rys*i or coolinew iii
ariucs upon pretext ivhatsomiiver without bis
tsa^estiei speciall approbation ; as also by tlie
cofkstaiitly to attend that service, whereby the
gaitisHQ was rendered uncapable of procuring
any pfOTi«ions by the use of the biiats ; how-
Cfer, there came afler some time, a small
nrivateer from Dunkirk, laden with rusk and
Citlier neeetaaries : but the gun i son bceams so
ifreftic of men, that tliey bad not hamls enough
to Itoist up the rusk, but were oblig^ed to borrow
lea sailoni io assist tbem, and when they
liaJ got oulv seven ba^s into the jBrarrison^ the
St of the two ships b^re down upon the
-teer, who was forced to cut ht^r aibles
erent her being run do\^ n, so I hat »he c^r-
vr&a then in worse condition far holdings
titan before, having ten sailors added to
number^ and ouly seren bags of rusk,
which could serve but a short time ; where-
fore the governor was ohlijred to put each
man of the f^arri&on to the allowance of two
ounces of raw rusk dough in 24 hours. About
that titue, Mr, Trotter was taken, and ccm-
demncd fur aiding and assisting ibp place, and
H captain Alexnoder H ally burton, captain Wil-
^H Jiain I'Vazer, 31 r. William \V itliaui, and Mr.
^1 IrViJtiam Nicotson, who belonged to the gar-
^f ritoii, were taken on shore, and coudemncd to
I be hanged ; and tlie day of Mr. Trotter's exe-
cution being come, the gibbet was erected at
Cmille-tovvD, and he being liniuyUito the place
« gUD was tired from the Ba'^s, amongst tiic
crowd, whidi terrified them, and obliged them
|4» remove the gibbut to a farther dL^tunce,
where he was hanged. The rest who lay in
priiLoii Lit Edinburgh under condeuinalion, were
rrprit'ved fn»m lime tu time, till set at liberty
by Iheetpitulaiion.
At hm the ^unison beiosT reduced to five
ti& dtiys provision according to the uljove*
liuocd allowance, put out a Hag of truce,
wlicreufKm ibe government seudiug tti know
Vrlui tbey wanteiJ, the garrison replied, that
tbey would surrender upon terms, and drew up
tbeir own articles^ upon which the honourable
privy council sent two of their number to the
Bahs, to acquaint them what condtiioui* they
^OuliJ grant.
"The governour, who hail sated some bot-
tle* of the best Ir'i^nch wine and brandy, and
soma fiMfC bisket, made them drink ptentiiully,
tellinifr tbeai Uiere was no scarcity of provisions,
and unlaw be had his own terms he would not
BUfreuder, delivering at the same time his arti-
ol^ la their loriUliips. and alter they were
Moc, he ordered all tiie caputs, coats, and hats
I in ibe garrison to be put on the muxzles of
mvftquctg, 10 make them believe the place was
UMvt'meni upon ivhich their lordkliips re-
trtfiinH Id the oouncil, and rt p(^>rted how they
were tr^aU'd, nod tlmt the gumwio was in every
fCiq^GCt weil providetit winch induced tb« ho-
2nd act sess. 2, of the same parham€iit, it k
declared, tlnU it shall be high treason to lev lift
wnrr or to take up armea against the king, Q^
to inlyse slrangera or others to invade any of
\m dominions ; ly keas it is declared and statute,
by the 2d act of this present parlia*t, duited the
17 June, J 689, that it is high treason lu any
Kubject of this kin<v{lomc, by writeing, speak-
ing, or any other mainer of way, to disowen,
qoiirrell, orinipugne their majesties royall power
and uulbority, or right and title to the crowne i
and also by the common liixve and lawes, and acts
of parliament of this kingdome, the holding out
or assistmix' and aiiliog others to hold out in
armes or otherwayes any of the king^s forts and
strengths against the king, or the usurpifig of
the same, Without lawe or warrand, or airt and
Eairt of any of the crimes forsaids, are punisha-
le as treason : Nevertheless it is of verity, that
the satda captain James Midletoune, VVilliam
iS icolBon,and William VVotham, baveing shaken
oir all fear of God and regaird to tht^ir majes^
ties authority and lawc^, did, about tlie moneths
of Tvovernbcr or December, ane or other of the
dayes of the saids moneth^, in the yeire 1691 »
or in the moneths of Januarie or Februarie. or
one or other of the monclhfi of the yeire 1692*
or one or other of the dayes thereof, or in the
moneths of Janwarie, Febwarie, 3!arch, Aprill^
or May, 1693, or ane or otticr of the days ther-
of, by or without com mission from the late king
James, come under the command of cotlonell
William Grahame, or some other person from
Dunkirk, or some other pairt beyond sea, with
the other persone^ in your company fbr recruit<«
ing the gariifon oftbt' Ba^, that at that tyme
held out, and alill holds out rehellioustic against
nourahle council to comply with the goreroor'ft
ai tides, which were,
J. ** That the garrison should come ashore
with their sivoids about i!irm, and there should
be a ship appointed by the government with
ire*ih provisions to transport f^uch of them as
were wilHn^ U* go to Dunkirk or Ilavre-de-
Grace, and thai in a month atter the surrender,
thiiiie who pleased to stay at home, might live
without disturbance.
11. ** That all they had taken, or what be-
longed to them after they surprised the place,
diey should be allowed to dispose of to the he<st
advantage, together with their boats, and all
things pertaiumg to any of them.
ill. ** That such of them an i^houh) innline
to go abroad might stay in Edinburgh, until
tbe ship was ready, without molejitation, and
have 60 much a day, according to their several
stations.
IV, '' That all who bad belonged to the gftf*
rison, or had aided or assisted it, should twve
the betietit of the capitulation ; and those wbo
were dispersed over the kingdom, should have
a time to come in ; and lliose wlio were cou«
demoed, in prisoo, or otlierwayfi distressed »
should be set at liberty tbe same day the gar- *
risoQ should come asliore, wittieiit any f&e^ or
oiher charges whatsoever.*'
J
847 j S W, A M. Proceedings against James Middf^un and ^m,
rlhRir TOftjeslies, an<f there ihcy antl c&cli of
them, getting aod taking artutrs^ under the
command Mrchncl Midktouu, <jr oThpr coin-
maniUnt U|>ot) tbe ptaee^ did stay and cnntiue^v
* ibe ^rtion to keep out that tTort againitt
leir majestres, all least tliey abod and conli-
lowed therin with tlie saldn rebel b and gave
litem their prrsencc : nnd notwith^anding
I" * ' * ■' " ■ ,t,p and WUlium
^ I lie cii.iTged to
Sill I (.'iii'« 1 lilt -1111 iMni ijiini^i lilii' ptitne ot trt'U*
n, yel tiiey disobey fd the said charge and
dt^r.'* »>''^rfor (leniinted rebells ; and Turther
t prochunation with Irtters oniiterco-
.11 ^ it against them, uolwithstnodtng of aJI
bich they conttnoued ihetr said rebellious
irficticm in keeping out tlic said frort^ and in
liding and assistrng tbe ganisone iherof soe tci
W, milill thatbtlicinibi? mnoeth of May last,
T tljerabnut, ihey were apprebcndetl ; lykeas
le said Uilbam Wetham bavcitig €(ime riMin
of the d^iyt'ii of the moncibii of ihc
id, and joyned or taken piiirt witli
^hII rebclts' and rtlHllioui; gai riM>n, by
sencc or itibcnvayes, for some dayc*; nr
OiietU:*^ did tberafier goe out and went ahi o:id
KnLrbiiid, FJiindtrR, and France, nnd to 8t,
erni;iiics, \x\ sill or one w other nf these plaers,
f jmodinsT, acting, or conspyrein^ iraito-
usUc against ther majesties, und wtth Ibeir
imies, untdl that comeiny^ t^ack lately, with
httt iatellig'enee and help he tonhi bring to
till accomplices in the Bui^s, be and the other
two (»ei^oncs above named did mcett together,
and in titeir n^turne to tbe Bass were stopcij
?iboat the ilarkning of the evening near to
Wbvt Rirk^ where ailer souie resbtence made
by llitni, ibey were taken by same oftbekin^*s
true leidjies and broucbt in pristmers to Edm-
btir^^ti ; LvtieaiitUc said Jotin Trotter and Atex-
dnder 31*Leibb haveing al^io shaken offall fear
of fjod and regaird to their tnejeslies, and the
\\\^%'r% and governmetit, and turning most unna-
tural I :ind wicked eiiimics to their maje«tjcH and
tbeir native couutrie, have from the bej^inning
of the suppryseing and revolliug of ttie Batd
rock and fort of tbe Baa^, which wes in the
roonclb of June, 1(391 yeircis» and since that
tymc in one or other of, the daye? of the
monetbs of tbe yeire 1G91, 1092, 10^3, t09l»
nnd nntill of bte Hiey m ere lakt-n aiding, as-
iiisting, helping', supplyeing, receptinjj, har-
bouring, corre^j»onding, or intercomuninif, with
Ihe forsaid enimtes, nnd rtbeUs in tbe Bass or
<e or other of tbemf and bade furnished tJiem
itb roeatt and driuk, bouse, harbour, victwall,
or something els useful I or comfortable to them,
or bade sent, caried, or caused carje to ibem
meatt and drink, or something else bf Ipefull
or comfortable to them ; or bade tntctligence
with iliem by wonl, write, messa^, or some
ofber way, or hade sent or caused send letters
or messages to, or rcceaved letters or messages
from them ; and particularhe he the &aiil John
Trotter in the roonelhs of November 16P|^ or
Janwarie, Febrnarie, or March 1692, or in ane
9r other of the dayes tbereofy t^r oa Qne or other
6f the days ^ive ly bf Drd, bafk leHers or 4
messages by word'or vt rttc oent tu bini oot {
the Bass, from the sunt Ci>
with a detuand of >nppT]r' of
Bucb as ancimn chain ai
and \r^n «ntl leather with
ci' > "f'ulJ lor the \.i,
\cv \\i at the lion
thcmbant, to 1
same^ and aocN* ai ; iff vm-
mctlttith \\w heari-r nnd to I
and promised ttiat v. Ijul was nv,i.,i.M .i|
be »ent into the l\^\s^ ; aud the said^
baveinga letter M' charge fujm fl:*- ^
b a me to be ilely vcred to the ^
out of bis onn* b^md, that In
to France by the way of I?
Orabant said was tor th*
the said John IVotter goti uj;d liwk^
letter fl^im the bearer w ben he metl
ntl the plaice callH KsJl
and said be should \hi i
pleasicd that it was not i<
the other letters that li*
sooner ; lykens he ilit- - , .
att seicrall lymrs rlr iik lii
bis health ; as also h\ lii ;
ment of TYotter, there \s
biskei, cheet^, and the l| I
nie and other placest ni one ur otbe
dayes, moocths and yeirc'? atrnve Ivb^-U
fui-tber in one or other of tlie <!
1692, or in one or other of ib*
said yeire or other yeirt^ ^
JobnTrottcr bought an*!
SL'Ut her with pi'ovisions rn
ler, and suggar loaves, n
Bass, nnd bts nccompt au^ iii^.w
iog more particulars then were sttit ; be '
therafter challengeii by ano ejiipre^s
ihc Bass, who melt with him at th
culled Kiilennkcd or. tber?)l)otit, and
swen'd that he sent these thiog« a« he
them, and be payed for tbein canforiM I
the accompt sent ; aud b^ tbe
Trotter in ane or other of the dayetj
monetbs of the yeJres forsaid, sent
William Ri»berlsonp, skipper, in I'ort Si
to eome to him to Wnitounc, and ther f
with liim in companif* with M^
and M' Clean, ubo were
rtrbell$ come from tbe Bass ; Qn<l he
to the said Uobertson to lend his boa
serre in her with s<»me men tbnt be
rebells were to putt on board to >;ui in
tain Burd^ssbiji, which was ftf']
tbe Bas»| and offerred him flbu l|
ling for that service, but Kobci
he tbe said John Trotter ireai'
carye in siune provisions, ■
and some drinking boar i
Bass in bis boat ; and be [M'm
this last busines to repaire to ki
boat that tbe rebel Is of tlie Iw^
from bim, and gave him a crowoe in eArnc^tl
atnttbesaida M'GorMi Atnl *
»49]
for High 'Treason^
Maclean, at the same lime told tbat be hade
tit thrtttie pund Htailin to mtike nrovisioa for
e Biiis, auJ tlmt he hade doI made ibeno but
epi the money* wid tberafler merthig- agpain
lb Robertsoue be pive bim two dollars more
Jencoura<^e bim in bis undertakmg^ ; ami
meitiii^ i*itb bim in Leitb, be gave bim money
^to buy a number of baiues for the Bass, wbicli
^■ikbertione did^ and be the said Trotter gave
^Bri motley tu pay tbein ; tykeas the said
^Blin IVoller perslsUog in bis said wicke<l and
^wt«:roti« practices tu tiie monetba of Decem>
^Br and .T^mNvarie last, or in one or other of the
^lljres tbu-uf, or in one or other of the dayes of
Je monetha and yeires above 1y belled, came to
himbar and having changed hi^ name (the
titer to cover bis trailerous Irafecqueings)
im Trotter to Do<I<?^ he with the said Alex-
der M*Cleisb, bolb or either of them
treateil with certain seamen^ m. William
J^ethef Alexander Wood, George Ker, and
^■ibert Spevrn, and one or other of them to
Hb^ye them into the Bass, and gaf c them good
deed for that end, and ab** thrcatned them if
lliey wouhl Df»t, and I bey refiiKiing he left wilb
Alexander M*Cleish a letter to be tent into the
BaaSf which was sent in by the same «eameni
mnd Alexander M*C!eish received a tetter in
Aiixwer from tbe Bass directed for him, ^hlch
Hfes seaJleit itjion bim when he waa taken,
^Bil he ordoum) ibe wife of James IlamiUon,
^k Dumbar, in whose house be was taken, to
borne tbe said letter, With tno letterK itiore Ibot
Jto gave her ', lykeas there were found unon
Hki, wlien lie was taken, or nt least he left
Vmh hiji said kndlady, scverall recepts and
sccompts and other note^ ami papers, aithcr
^mln by hmi^olf or others, all relateing to the
^^^Kpsonabte correpondencc with and sup-
^^|B<>f the sa ids rebel Is in tbe Bas^t^ which
wfef^bdd as repeated trevitatts rausft^ and
should be sbowen to him or his lawiei'^ More
bi« tryealK and then should be mod need in
judnpiient airain*it him ; as also Im the siid
Aleicauder M*C'k>ish did upon one or other of
tbe dayes of the m«uietbs and yeires forsaid^
mdit ^itb tbe said skipper, ^Villiam Iloliert-
son, — • M*GoTan and M*Clean,
, A ben tour, about the lurnisbing tbe rebel Is
j[|he Bass; and lately in November, Decern -
, or Janwarie laist, and upon one or other of
Mlayes tberof, be the said Alexander >rLeisb
h\ tbe forfaid four seamen, and treated v^ith
lor OQC 01* other of them, to earye in two men
"* eir bolt 16 the Bass, under pretext that they
I to carie them only to a snip lycing out at
b abf.>nt nyoe or ten a clock att tiight, but so
baile contrived it thai those two men being
Mtned should coosiraine and force tbe aeanien
toccryetb^m lo the Bass, which they lyke*
WAyes did, calling when they came near, a
JBftoket ! aHacketl which was tbe name of
^bof thesaidrebellH, and probably of one of the
IBd two ; and tbe seamen havein^ gott a
fiinie for their paiues, be the said Alexander
^Cleisb .hanged tbe said guinea, and desU'i^
the money amongst tbem att their re-
HiL. XI 11.
A. a 1694. [850
tume, and bid tliem keep tbe matter qnyet, for 1
it would bang them as well ashimHetre; andl
therafter, on one or other of the days foi-^saidLI
he afrniti treated f%itb tbe said seamen to cary#l
ID ale to the Bb'ss^ and de facto brought a btiNj
rell of ale to the boat syde that ibey inisrht
take it in, but they ret used it ; and ftinhcr^ i
upon one or other ol'lbe dayes forsaid be hyiedJ
tbem, giveing tbem ale and money to goe inlM
tbe Ba&s with a tetter, which they euiied in I
and delyvered at tbe Bass, and gott and brought!
ane letter in answere backagnioe and dely veredl
it to bim ; and he wAfi also present when tb# j
said Trotter, under the name of Dods, and he
and Trotter, or either of theui, treattd v*itb tbi
said seamen to carye in tbe eaid Trotter to tba
Bass, as lykuwaycit to sifrve Trotler lo an
from the Basa for a ycive if could hft%e agretfdj
with bim ; and in these villa no us and traiteroti
practices, be and tbe said John Trotter were]
snrprysed and taken, and by tbe haill forsaid J
Iiractices, and by his accession tberio, tbM
lailt forsaid peraones ail or earh of them ar%|
guilty of the crimes of treason and oppen hoaJf
lility or eonspiracie agaiu&t their majestieiijl
at fea^t were open enlmies to tbeir oiajestieij
and tbe kingdome, or airt and pairt of tbe sa-
men, which bein^ found be ane assyse, tbs I
oiigbt to he puni<^ie4l by fforefauUure of their |
lyfc, lands, and gooUs, to t!»e cxamide aud fer^ I
rour of others not to doe the lyke in tymaJ
coming. ']
Sic Su he ritU ttr, J s , Stew ART. I
Pertewari,'-H\r Jamet Steztart^ yr majestie»<J
adTOcal; sir Jumt$ Ogihk^ of tlMt ilk, yr m*-
jetties solicitor
FrocuratttrA in defence^-^T Fuirkh Hum^ f^
Mr. David Forbci ; Mr. John Frank.
My lord advocat produced acts and war-
rands of CO unci 11 tor processing and perBcwio^l
of tbe fornamed pannalls, for high Ireasoo^j
befor the Justices, whereof the tenors followcar
EDnrauRG, MeySO, 1693.
Tbeir majesties high commissioner, and tb#l
lonU of pritio councitl do beirby give ordoorf
and warrand to sir James Stewartj their ma«
jesties advocat, to raise and pro&iecute ane in-" {
dictment of high treason befor tbe lords com-
mi^ioiiers of justiciaries against captain James J
Midletoun, William Wotbara, ane En£[lisJ)«'j
man, some tyme padge to tbe earle of Oum-*! I
barton, and U'illiam Nicolsone, late Serjeant I
in col Ion ell Pottin-s regemeut, in FJandera,]
under the king of i^paine, three of tht* rebcHs'l
in tbe Bass, seased since their coming from. I
thence, und now prisoners in ihe Toibnoth <if J
Edinburgh, (Sit- i:iubscribitur^) Tweddal, Mel-
vill, Drumlangrig» Argyll* Erroll, Lin- 1
lilhgow, St rat bin ore, Annandale, Sel-
kirk. Extracte by me.
Sic Subicribit u r, Pa . Bl on cr iCFr , C . St « Con U
Edenolrgu, FcL 1, 1694.
The lords of tbeir majesties prrvie coimciH'
doe hereby approve of tbe cottimtttment of
;i 1
5 W. & M. Proceedings against James MkUletoun andotkerst [852
4. If the defenders bade bein •eot OTer i
the command of a auperior officer, as their
Gomeioflr over couhl be no crime for the reasoo
foresaid, so their getting and takdng anws
when thev were in the Bass oouid be noe crime,
because they were still in the same liaieard,
and under the same impressions of fear of be-
in*;^ haiiffed and shott to death, in caioe tb^
disobey^, and whateTnr might have bein pie-
tendedifthey had bein once at freeedome and
att their own libertie, and thereaAer oome sod
subjected themselves to the command, bat
seing it is adcuowledged that they were in the
power of tlie eneraie before tliey came over,
and were sent from beyond sea, under con-
mand, as their comeing over upon that consi-
deration could be noe mme, so their eoo-
tinewing iu armes in the Bass afler tbcy
came over could be no crime, seeing they wot
still under the same commaiul and impresMo
offear.
5. Whereas it is lybelled that the paunels did
geUand Uke armes in the Bass, allways de-
nying the same, it is not relovout, not only ftr
the reasons foresaids, but also for this
851]
John Trotter, ^I^Cleikb, and Gavin John-
istoune, and reoomends to sir James Stewart,
their majesties advocat, to raise and follow furth
a criminall indictment before the lords justice
general!, justice clerk, and commissioners of
justiciarie, against the fomamed persones, and
^— — Hamilton, for hij<[li treason and corres-
ponding with their majesties enemies and re-
sells in the Bass. (Sic &V6scrt6i/tfr, ) Tweddale,
Chan. Soiitherland, Leven, Forfar, Kin-
tore, Uaith, Ross, Balhaven, T. Living-
ston. Extracted by me,
Pa. Moncrieff, C. S. Con.
My lord advocat dcchires, lie insists against
Midlctoun, Wetham, and William Nicolson,
fur having joyncd themselves to tlic rebclls in
the Bass, and'bomi* arms with them in holding
out that fort, and as bclni; airtand pairt of their
rebellion, confornic to the iudytment exhibct
against them.
Sir Patrick Hume for captain James Midlc-
toun; William Niculson, and William Wetham,
the pannalU, allwaycs dcnycing tlie indy tment,
and haiU members and qualifications thcrof,
alleadges flirst, liint that pairt of the iudytment
bearing that tlic be the common lai\e and
|awes and acts of parliament of this king-
dome, the holding out or as&istiug others to
hold out in armes or otlierwaycs an}* of the
king's fforts a«;niiist the king, or the usurping
of the same nithout his lawc or ivarrant, is no
otherwayes relevant, then as the samcn is
founded upon the specinll lawes and acts of
parliamrnt mLiitioucti in tbo indylinent, \vhich
doeth not molt this cnsc.
12. Tlir particular tvUie \\\ici\ it is alieadgcd
the sai'is crimes wire conunltted, is not con-
descendctl upon as oujjht to he in all crhiiinall
iiidylmciils.
3. Whcrca*; it is allcdgcd, that the j)amjalls ^
cauif? under li.e command of ccliontll Gra- ,
liame, or Sius"- ollur j»:i^«in from l)OV()iid sea,
uitli oilier*., ii I rri ri.i'iliit;' the iraristjii of the
Bass, it is not riK'^anl to isifi>rr th<" crimts Iv-
bellcd, hv't'au-< it b: i:p^ i:ckiio\Vicd|:cd hy'tlic
indvtmciit tl.^l ih.* dtlViuIcr; v.cre t-oufdiers,
and came OUT unlvT tlu: command of a su-
jierior oiiicer tiity hvhovcd to olcv, so that the
c'ominq^ o\cr not Wm^r vohiiitar or ano act of
choise of the defender's owue, hut it being
acknowledy^ed that I hey were comniauded to
it hv superior ofiicers, whose <'ommand they
couhl not disohcy, otherwayes they would have
bein shott to death upon the place ; if it were
true that the defeuJer^ came over in manner
lyU'lled it could nolinftrracrimeapunsi ihem,
f.irr les.> the crime of Ireasone, accord I nir »"
that excelln.t rule in lawe, lic^-. U)7, * de Ke-
' fjiiiis jnri^ <iui Jusu .ludicis \rll sup, ri«»rs,'
which IS all one * aliipiid lacii nou vidcturdtdo
* nialo taeer«e, qua pa rere mci ssc hain't,' es- , , ,- ^ ...
peciallie sein;; it is ackn(»wl(Hl«;ed that the de- j which they ucre denr.ncod and iiitercoinoi
fenders did not j;oe in here to rcvniile the ' andcoiitiuewedto keep outtbe ffort, andaidisl
Bans in tlii^ kiii^dome, but were w\\\ from lie- | and assisiini: th-^ ;;ariMU) y*r o\' it is not rele-
that the simple presence in armes with so
enimie is not relevant to infer the pain of' tim-
son, unless there be some act of hottilitieor
other public deed that did clearlie intu^tbdr
designe of opposing the government, and tho-
for it is that the lawes and acta of pariiaincit
lybelled, are only against oppeu and nottorism
rebells, which necessarilie imports thattbcit
must be some publict or open act of hostiCtT,
other then the simple liavin;^ of armes to inakc
u partie guilty of treason ; and for that reasoo
the lords of justiciary, in the case of M*Leod,
of Assint, who was conveined for garisoDiflC
the house of Ardbreck, and convocaiini^ th«r
Uiajesties Icid^s, to the number of 400 uieO)
ihty by interlocutor, in rfcbruarie, 1074, re-
in sed to sustain that indl.nr.enl, in relation ta
I he raitinjr of men, or di^pj^ain^^ any of them
in companies, un*! r col lours, t.) be rcIo"aDt,
except it were olleailgod that thcy\»trc2W
men and rpv.ard.--, and v. li'- under colloua
and mustered, or uuder we«.lJ;c or dayly |«;\
and that ail thi>. waNdor.e alkr thcpubhctUtn
of the ie'.lcrs of lire and swonl against him.
G. That allernaiive in the indictment, that at
least the defenders continew cd to abyde in ibi
Bass, with the oiher pers;»n5 that were io it,
and pave ihent their presi uce, is noi relevant,
for if sinjpleprtse'.ice with amies be not rele-
vant, farr le:ss simple presence without armes,
especially the defenders beinuf sent to ibeBatfi
from abroad, and heini; under comniaod as
said IS.
7. Whereas it is lybelled, that James Middle-
t«»une and WilLim Nicolson were withotbeis
cliap^ed to surrender tl e said fort under tha
paine of treastin, yet ihey disobeyed, upoa
yond sea wlien iluy were in the enemies jH)wer,
and could not resist ihtir commands.
•1
vant ; tiirst. Iitc:iii>e il it i ouM he nia^c •PP*'
that the defenders v. ^ re in the iSass, no iw
553J
Jar High Treason,
harei! came to their knowledge. 2(1. Albeit
t had coinc to their kooH ledge, yet it was not
n their [Miwer to have given obedience, bc-
ause it was acknowlcilged by the indict uient
hat they were under the command of Michael
tliddletniine, or tome other commandant, and
vhalever cftl'ct a charge might have liade
igaii'.st a commanding officer, yet it was never
leard of that a single soldier in a garri.sun
rhich was charged to render is guilty ui'trc?.-
cu, w hen the superior officer, whose com-
(lands he is obligeo to obey so long as he is
inder his command* refuses to surrender the
;arrison ; so that it not being in the defenders
ower to surrender the fTort, thair nut dueing
I afU'r the charge can never be imputed to
liem as a crime : 3. As it was not in their
ewer to surrender the ITort, so their staying
:ere after the charge canitot be understood a
^f'pinsr out of the (Tort, or aiding or assisting
[le garrison :— 4. The pretended keeping out
fthe flfort, or aiding and assisting the garrison
fter the charq^e. being only labelled in gene-
all termefi, is not relevant, unless some pr-
icuUr acts of keeping out, and aidinnc and ag-
isting, hade bein condescended U|>on ; and it
s not' lylM'lled, that aHcr the said charge, the
&au!s Mlddlctounc or Nicolsone did use any
kct^ of hostility, nor so much as that they did
:iear armes in the garisoh after that tyme ;
S. The pretended charge is ipso jure null as to
kVilliam Nicolson, seins^ he is not designed,
but his name ouly sett uoutfe blank Nicolsone ;
tod it is clear by the act of parliament, that all
necutions where the pairtlie, name and sur-
name are not sett doun with their designations,
the same arc null : 6. They «^ave obedience to
tbe charge, scing it appears l>y the execution
that the chargu was given the tyfth of May ;
and it is acknowledged by the indvtment, that
the said James Midletoun and William Nicol-
•oo, came out after the 13th of thesaidmoneth,
vliirh is some few days theraflcr : so that if it
coulJ be made appear that they hade bein in
the Bass, yet it is evident that they laid hold
vpoa ibc First occasion to leave the garrisonc,
seeing it is acknowledged, that they came out
sorue few dajrcs thenuter : 7. As to James
Mfdtetoun, if it could be made appear, that he
was in the Basv, which is drnycd, it is ofTrrcd
to be proven that be came out before the charge
*u i;iveii to surrender the said fort, the chari^e
B''t being given till the fyflh of May, and he
nne out the sabbath day before the Ut\ of
Miy.
8. Whereas it is alleadgcd as to William
Wotliam, that he came in about the tyme for-
ttid, and was some tyme in the Bass, and did
tbercafttr goe abroad to England, Flanders,
Fiance, in all these places corret^pomiing and
coiiipyreing against their majesties, and that
became back with iiiteligence, alwayes denye-
iaf the same, yet it is not relevant, not unly
Ar the reasons forsaida, but lykewayes for
ibir reasoiui, that he beiug ane Knglishman
b«nc, he was but a young^ £)y the tyme of the
ItcvolulioD, alMut tbiirtein yeirea of agb, or
A. D. 1694. [Sfil
therby ; and being att that tyme the earic of
Dumbarton's pad^e, he went over to France
with the carle, and gott a pass from tlie king
to goe over to France, iMtk his servants, and
the pannall continowed nith the earle till he
died ; and he is not yet above nyntein yeircs of
age, soe that he was incapnblt' to coiisp^ re or
correspond a<rainst their majesties ; 2. It is ac-
knoule<Iged by the indytment, that as he was
none of these that surprysed the Bass, so he
was not in it when the' governour and other
persons were charged, tlo delyver it, nor is he
mentioned in the connciirs ordour, \\ hich is the
i«arrand of the charge; and albeit he hade
bein once in the Bass, yet seing he left it some
short tyme thereafter, as is acknowledgeil, his
siniple'being there cannot inferr a crime against
him, flar less the crime of treason : 3. That
the said William \Vetltam did conspyre and
correspond against ther majesties and with
ther enimics, being only in ^enerail tenncs, is
not relevant, unless the particular acts of con^
spireing and corresponding were condescended
upon : 4. It is denyed thai he <-ame back with
iiitL'Iigence, or gave any help to those in the
Bass, nur is it relevant, the inteligencc and
hclpeing not being condescended upon.
9. Whereas it is ly belled that the defenders
did meitt together tliinkiug to rcturne to th«
Bass, but were stopcd ; it cannot be so much as
a qualification of the crime, ftbr ffirst what their
designe was being cic/us ajiitui is nut punishable,
nixt the pretended designe did take no etiect,
as is acknowledged, and see can import no
crime : 3. Their ineitling together could be no
evidence of their designe to goe to the Bass,
for if they hade such a designe they mii;ht
have made it much more etlbctwall, by g<H.*in^
single alliin, then goeiiig altoi;ctliar'; but it
appears by the wholl tract oi'the aHuir, even as
it is mentioned in the l}bell, that if it could be
made appear, that the defenders hade bein in
the Bass, that they came out of it with a ile-
signe not toretume, flbr otherwayes they Mould
not have cume out.
10. The indictment of treason cannott ho
sustained ai^ainst the pannalls ; bccunse it is
denyed that thry were the king's sut»jecis, and
thelawes and acts of parliament ngninst tn*asoii
is only in relation to sulijocts mIid liaro dew
alleadgeance, seing the crime uf trfasnn tiiKcs
only place whrre alleadgeance is di-vi, ns is
clear frcmi all the lauiers that li:ive unlttH
U|)on that subject, um\ pariicnliirlii- C'lirii^.
Lib. parag. Ia'sc Majisl. numb. c5. who is \w-
siiive, *Quod ille tpii non c. t subditns pilnf.ipi,
' non dicitur centra euui Couiinillere Cciiu ii
* Lesice Majestatis et it co liivt aliipii) |; .iiii*ii-
* lari Jure ut ofTendi, veluti (piis fiiiidutiir
* de foro alicujus, prioci|is h\ tanien ratioui'
*• originis veil doniicilij iion sit subditiis non
* dicitur Couimiltere idiitra turn (.'riin»*n Isvi^iH
* Majestatis.' And atiirms it his luiu many
tymes so determini'd, and albeit noiraigners
opposing any king or state, may be tuukcd
upon as enimies, yet thej^ are not guilty of
treason, as is clear from sir Edward Coke^ in
855] 5 W. & M.
his title of High Treason, page 11, where be
makes a distiDction betwixt a fforraigner, who
is aoe enimie, and a subject wbo ryses in re-
bellion, that ane enimie committing open bos-
lity in the nation and taken, is. only to be pu-
nished by the marshall lawe, or ransomed, out
that he cannot be indicted of treason.
11. It is alleadged separatim for James
Midleton, allwayes adhereing to the forsaid de-
fences, that it is offered to be proven, that he is
a fforraigner, being a Flandrian borne, att least
holden and repute to be so, so that as to him
there cannott be the least question, that the in-
dytment of treason can be sustained against
him, and he can onlie \te treated as a prisoner
of ware ; but there will be no neid of any such
iirobatiime, it heing sufficient to ^ve hmi the
benefite of a prisoner of ware, semg that it is
acknowledged that he came from abroad.
12. The indictment as to William Wytham
and. Nicolson, always adhering to the foresaid
defences, is noi relevant, albeit it could be proven
that they were subjects borne, yet they naving
ouitte anil deserted these nations, and haveing
nzed and taken up their residence in fforraigne
nationes animo remanendi, the said William
Njcolsou haveing gone abroad about 20 yeirs
hence, and William Wytham when he was but
14 yeirs of age, they cannot now lie cousidered
as the king leidge men, but as fformic^ners, it
bein^ the constant practice of all nations that
' Civisorigiaariiis renuncians ct domiciliuni'aiso
' transferance [alio transfereos] civis esse desi-
' nit:' as to u\\ effects, as is clear from the com-
mon lawe, Lcvj. 5, parn;^. ult. diyf. dc cajitivo
et post linuo [posllimiuio] and Gail, Lib. '2,
observ. 36, jiuni 7, and the lawiers tliore by
him cited, and Perez upon that title of Cor!, dc
niunicipis, [inunicipibus] tl oriirinariis ni;m.
19 and '^0, so that the suid William Nicolson
and William Well)am upon that consideration
lykewayes cnn on lie be looke.l upon as pri-
soners «)f warr, and un; in the same case
as if rtrcnclinicn or other fforai^iicrs liade
come to iccrniio the Bass, wlio if they hade
hein taken rould not have bcin convcnt-d for
treason, l.r.t U-ljooved to be used as prisoners
of warr; oiid llie lords of jusliciarie may bi»
pleased to eonsidi-r, wliat inay be the ccinse-
cjuence of this if it win* utlnrVnyes sustained,
for thero arc many tlmn'^ands of people thai
come from rV.mrr, and oiIht i»arts of the
French domini<in^, who tiaili* taken up their
residence in nrlitainr and Inland and other do-
mhiionsbclonjrin^tn tin- kin;;of ltri:iaine, who
liavf absointHy (pnti TiamT and the French
dominion >, and ate i.ow no more looked o'lon
to U» French .snlij<rlN, Imi snbjt'cts to tljo kini:
ofHrittaini-; and if anv of llmse or olln.rs of
the i'Vtncli retn«jif s, \ilirrrof iIhtc wrc; verie
many iti tin' knitf\ artnirs, slmuld be t.»k'n|-.ri-
soners fi;.;ht;ni; a;;aiiisi ihe l-'n-nch kin;r» then
hy his rub' tlu-y could bnvr im (piariiT*, but the
French kint;" mi^lit |irorird against them for
treason, and y»t wee sri dayly that ther is no
hur.U thing pructisiMi, but wfieii any of the re-
fugees or others wbo wero formcrlie French
Proceedings against James Middletoun and atherSf [856
subjects are taken prisoners fighting agaiait
the French king, they are treated as priaoocn
of ivarr, and relieved and ransomed as other
prisoners, and bow many of the British subjects
are in the French armie, and actwallie fight-
ing against our king, yet when any of tlwoi
comes to be taken prisoners they are not pn-
nished as traitors, but as prisoners of warr, aad
the king's practyse in those caiocs ought cer-
taioly to be the rule in this, and when tliers
were many prisoners taken at Cromdale, wbea
actwallie m armes feighting against the kiagr,
and albeit for the most pain they were all SoM
subjects, yet ther was none of them persewed
for treason, but were all of them treated as pri-
soners of warr, and were sett at libertie npoa
finding caution only to live peaceablie and oot
disturb the government; and Ihe defeadffs,
when they were apprehended, were Dot ia
armes nor nseing any acu of liostility aeiiait
tho government, but were demaining U»ein-
selves iieaceablie in the comitrie, and thty
should n«>t be worse treated then those who
were taken in armes actwallie figliting agaiatf
their majesties, and dewreing all thetymrof
the late civil warres in Drittaiue, albeit then
were many prisoners taken u|)on both syds, vet
ther was non of them persewed for treason, tot
were used as prisoners of warr, and therfor tke
paunalls ought not to pass to the knowledge «f
ane inquest.
Sir Jamet O^ilrit replies, that he oppons tbt
lybell as declared by lord advocat, and which is
relevant noiwithstandincjf of the defences pro-
poned, the crimes lybclled being expresslie coo-
trair to the acts of tiarliament coDdesceoikni
upon : And m heras it is pretendeil that the
saids acts doe not meit the caise, it is answeral,
that ther is no disparitic coudescended uponia
the df fence, and lybell and acts are oppooed.
*Z. Wherus it is pretended that ther is do
spcciall tymc condescended upon, the iodyt-
meiit, is opponed, uheriii the yeires, mODetofi
and daycs are particnlariie n)eutioned.
3. The pretence is no wayes rclerant thit
the painialls came from be\ond ftea, under the
command of a superior ofhcer, ncilluT does be
lybell, came onlie in these termes ; for first, it
is lybelled alltcrnative that they came by com-
mission or without i: ; and altho they hade hdn
under command, that can no wayes warreMi
thein for ryseing in armes n-^'ainst their natite
soverai^ne, and assisting those who maittaias
the f1\)rt of the Bass against authority, sod
I ulicras it is pretended that if they hadedis-
I obi'yed thc^ir superior officer they might hsfs
I bcin in hazeard of their lives, it is answered,
' iirst, that is denyed that thev were in any such
j hazeanl, but (sio they hade, they can Usflit
non but ihemselves that they were in these ci^
cumstanees.
4. The pretence that they were under te
and hazeard uhen in the Bass ments noaaswfft
seing their goeing there and concarriog wirii
those who maintained it againal the govcr*
ment, was in itself a crime.
n
Jar High Treason,
A. D. 169i«
[858
Tbe pretence is mo^t frivotous that the
ell is not relevant unless aue act M' hofittlUy
were lybeited, ior the 1^ l>ell \s opponetj thut they
were wiitib ihe Bass, bearuif^ armes for hold-
ing' of it fiut; Ami the case of M'LtHjd of Assipt
jf^novraj^es paralej witb this, for be had only
■■iiroeate soma men for ^arisontn^ Liis house
Hm defending' biius^lf a^^^ameit Ihc earle of Hea-
tortb, who was nhotit to execute le^ll diJIi-
geoce 8£|raiQst Lini, and therfur the lords did
most justly sustaine the convocation only to be
a defurceinenu unless si)eciall »ctt of hobtdity
weie eondesi-ended u|jon, hut the Bmsa was
then, and is still tuaiulained, against liis majes-
liei aulhoritie, and which is not tour.
6. Whereas it is pretended that sitnple pre-
foe is yet less relevant^ it is ausvicreilf that in
circutnstanciat case where one of his ma»
ies ffbrts is surprysed and keep^d ou»» sim-
ple piTsence is nnqnestiouoblie relcf ant, es{>e'
cialtie seing ther i-s no rational! occasion con-
descended upon for ttie pannalls their goeing
there, so it is uaquestionahhe clear that they
were assisting' aodnidini; captain Midletoun and
mbers, who were iu armcs, man lain ing the saiil
rt as said i^.
As to what is pretended ag'ainst the rele-
Bcie of that f)uahtieatiou of the lyhell, that
'dletoun and NicoJson were intercomimed,
answere^i, that the intercowuuing is only
'esoended upon as a qualitication, seini^ the
ding out of the ftoi t is as relevant to iuferr
IreaaOD, befor they were interctituoned us bince^
jl^^Bt the charj^ came not to (heir know-
^^^^b tnosx frivolous, seing tlie h emu Ids and
^HHili came to the foot of the rock and
^Knoed their trumpets^ and did give in the
^Pppies and sainmouds, so tbat non who was
tbea in the fibrt could be i^^norant, but the in-
lerconvioin^ was mainelic designed for inter-
^Klling his mnjeEities oyr subjects from re-
Hbtin^, haibourin^, or keeping: corresponilence
^mh the panrniHs, and those others, who were
in reWllion with them.
And wherax it is pretended that they were
under the command of their superior officer,
md SQ couUI not give obedience, the ibrmer
ttmvier is oppooed, viz. That they put them-
Itlves neidlesslie under this necessity ; 2, non
e^mitait that any other did cominand ; And 3,
no sojor is oblei%ed to obey his superior otiicer,
if he he commanded to coinmitte ane act of re-
liellion, and if he doe it is on hia perritl, and
bothe be and tbe officer that eomiuands are
l^eable.
»An to the pretence that the charere is null, in
B flarr as cunce rnes W m . N icol so n , beca u se t h e
ecntion is only ai^^Qinst blank Nicolson, with-
out any farllier de^iijoation ; It is answered,
lliBt the eiceculion is op[>oned, wherein he is
4nagoeil blank Nicohwn in tbe Bass, which is
coffoienl, but tsto the chari^c were null^ yet
Ili€ lybell is relevant, altho he hade never bein
charged, and the pannnll cannot conile^end
90 any o|her of that surname tb^t wns in tbe
B^it at the tyme ; whereas it is alleedged that
the panati Middlctoun and Nicotsoue did
gire obedience, because they were taken within
some few daves after they were charged ; it
IS answered, this is noway es relevunt, unteia
they had actwallee come and surrendered them- '
Kehes to some person in aulhoruy under their
majesties, as aoe sheriff or magistrat of ane
burprb royal I, and ibis is not so much as pre-
tended.
Whereas it is alteadged for Wetham, that
it is denyed that be was bringing ioteliigence j
it is answered, that this is only condescended *|
upon as a quulificalion, and appears to have -
bein iruitb, but his majesties advucat will not
burden himt»e}f with the^ probation thenif, the
lybetl heitif;*: relevant without this a£;graviition«
As to the alleadgeance that he was but four-
tein years of age alt the Revolution, and that '
he was the earle of Dumbarton's servant, who '
got a pa^s for himself and (he pannall, aud bit *
oUier servants to goe to France, it is auswcrefl,
tlial his goeing to France is not any pairt of ^
the lybeil, sedag what is offered to be proveii
against him is that he was in cornpanie with
the other rebells who were in armes within ^
the Bass, and that he is not contained in the
councills ordour meritts no auswere, for thai \
might have beiu occasionetl by the want of the '
true information of the matter of fact ; but tt 11
believed thnt he was not there att the time, but j
Ihi4t he was out getting iuteilij;ence assaidiK|i
and was taken in his return, and to iJiat pre*;
(ence that there is no speciall act of conspira^
cie condescended upon, the advocat maka *
noe farther it^c therof but as nue qiialiiicationp
and ceituinly nne person is guilty of perduel*
lion, but !!» alho guilty of conspii^cie.
8* That they were goeing back lo the fiassg^
is lykewayes only insert in the lybell as a qua- j
tication, and which has bein evidently true in |
niutler of fact, seintr they were taken and ap- *
prehendcnl about Whitkirk, when they weren
travelling under night.
9, Wheras it is pretended that Ultdletounri
was borne in Flanders ; and therfor be is non« I
of their majesties subjects, and oweth them noe
alleadgeancc, and so cannott be guilty of per- '
due I lion ; it is answered, it is acknowledged Uk |
he the opiidou of all lawiers that trea<ion can'
only be committed by subjects, but here tlta I
pannall is presumed to be such, ffor Ih'st his pa« I
rents x^ er home iiiilds kingdome, and he himself |
hm a 8cots name, and his mother-in- la we doei(^l
still live at Fakirk^ and therfor he is presumed f
lo have bein born«* himself wil bin the kingdom | I
but, 2« He was found in ret»ellion within tli# I
kingdome with «ev frail others who wet e Scots* j
men ; and 5. There can be no instance give
that ever tbe king-s advocat was putt to prov#1
lliat a person of a Scots sirename taken in re* 1
bellion within the kingdome was ane born sub*^
ject: 4 Albeit it were proven that he we
a flforaigner, yet havemgcomelo ilie kingdoms i
to assist the subjects against their native s'tve-cl
raigne, he is therby airt and pairt of theif^
crime. •if
Whereas it is pretended for Wethain an^^
Nicotson, tbat although they hade bein Bd^
859]
5 W« & M« Proceedings against James Middietoun and oiherSf [860
tiafc sobjecti, yet they bude deserted hie ma-
jestiei domiDMnifl, and had aetirallte aetled re-
flidteoe elsewhere ; It is amiwered, primo, that
the matter of fact is denyed as beiDij^ caluai-
niom ; but, 2d. Esto it Were true, yet it it no
wajes relevant, because they were subjects
ah origine, and therefor are still bouud to give
alleadf^eanoe, especiallie when found within the
kingdome ; and 3. They were airt and pairt
by concurring as said is.
Whereas it [is*] pretended that it mav be
of dangerous oonraquence if the pannalls be
sentenced, and undergoe the paines Ivbelleil,
seiog the French refuges who were in his ma-
jesties senrice, some of whom are taken, may
snfler upon this account ; it is answered, that
the-pannalls are oowayes concerned therwith,
this being a measure of government, and their
majesties may indemnitie, or ordour the ex-
enption of the sentence as accords, but this
can furnish them with no leffall defence ; and
whereas it is pretended that m the late civill
wans, noe person who was taken prisoner did
ever suffer for their being in armes ; it is an-
swered, that the contrair is too well knowen,
seing the duke of Hamilton, the marques of
Montrose, the earle of Holland, lord Capell,
and several other subjects of the best rank and
qoalitie, were execute upon no other account,
but that they hade bein in avmes.
doe not meitt the precise termcs of the acts of
parliament.
3. Wheras it is alleadged that the I^bell is
alternative tliat the pannalb either with or
without commission came over ; it is an-
swered, that albeit the lybell bear that the pio-
nalls came m-er, by or witbont commisflm,
from the late king James, yet the lybell betn
that the pannalls came under command of col-
Innell Grahame, or some other persones from
Dunkirk, it is suffident to liberate the pannib
fbrtreasone that they came under command of
superior officers whose commamls they were
obieidged to obey, and which by the Isws and
practice of all nations does lilierat a person n
that circumstance from a punishment deweio
a crime, and the pannalhi were not to be Uainef
seeing they were souldiers in the Frrnch
armies long before the Revolution, esoqit as Is
Wetharo, who went over with his master since
that tyme, who having quitt his native coos*
ttie might lawfullie take on as a sojorof fcr-
toun ; so that neither their com«ng over nor
goeing unto the Bass, being still nnda- d»b*
mand as said is, could make them lyeaUe ftr
any crime, fbrr less treason, neither the con*
curreing to the holding out of the Uass, ther
being still under command ; and as to the is'-
stance in the case of Assint, tlic paraMI hMi
exactlie in this case, and the pannalls are is a
And wheras it is pretended, that non of these much more favourable case, sciiig /ls5int nis
there at his owen libertie, which the defeukn
were not.
Whereas it is ril!eadrT»'d ; that singh jw-
taken at Cromdale were brought to a tryall ;
it is answered, that first they were unouestion-
ablie in rebellion, and many who werem nrmes
attthat tymc are forfaultcd upon that account, sencc in this cir>.-iimstantint cuise is sufTicieot
as purticularlie the earle of Ihirafennline, vis- I in kecpin^^ out niiy of the kiit;;i;*s ffoits, seio^
count of Dundie, viscount of Fi-andraip^ht, llic '• there was no i-ntionall ncctJUiit of their jroeinp
laird of Pittcur, and many others ; and if noi' ; there ; it is anjtuereil, that naked presence wiih
person did lose their life upon the I'orsaid ac- ! an etiimie, was never sustaine<l to iiiffrr a
rount, it is hut allenarlie the effect of their ma- ! crime, for, if that were sustained, then all jht-
jcsties clemencie and bounty, in respect wherof sons present, whither cniniies or freinds, mtyht
the defences ouf^ht to be repelled, and thn pan- j be fiT^il^y <)f' treason, and the account of the
nails ought to pass to the knowledge of the in- j defenders coming over i^ meiitioueil in the io-
queist.
Sir Patrick //i/»;»r duply rs, that the defences
arcoppone<l, which stand relevant notwithstand-
ing of the reply e, and docth fullie ansucre all
that is now aUeB<^ed, only he will take notice
of some few pailicnlars for the f.inler cl.-^ar-
ing of the defences, and first, wheras it is al-
ledgcd, that the particular t^'me is condesccnd-
efl uijon, llie lylwll is opponed, which albeit it
flytment itselfe, that they came from Dunkirk,
and under command, and it is a vorie rationall
. acooniit that they behooved to come over wfacQ
! they wcrccommanilcd.
! Wherens it is alled^ed, that the charge for
I rcndorinjjf the J'ass was sniHciently made
: known to the pann;d!s, it is alisolntly denvrd,
that tiie same came to their knowled^, for the
exvciUion hearcs only that it was only putt ia
a bucket, an'l tli« charge being made a prin-
condescends upon moneths and ycires, yet sc- cipall lyr'nnd of the in«lytmont, if that nasnot
hig the lyliell takes in all the ycires, without \a:id the ind\trnpnl must iall, es(>eciali:e as to
condescending n{>on a particular tyme wht>n it I Nicolsone, it Ixin^f blank ns to his Christian
•a Allo'kflcriifl tl«f> /ii<imA«i u/<*rA «irtmrniti#>il \f lo ! nnnrip ami rinps nnt iM^nr thnt hp 1P9« in thS
is alleadged the crimes were committal, it is
ail one as if it hade bein lyhclled, that the crime
was committed on one or other of these ycires,
and such a generall indictment can never he
sustained.
2. Whereas it is alleadged, that the lybell
mentions the crimes as paralell to those men-
tioned in the acts of parliament condesicended
upon ; it is answcrrd. the acts are oppnned,
and the indytment l»eing compared with the
MfS| if ffUi appear that the case as it is lybellcd
name, and does not hear that he was in the
JJass ; but whither they were lawfullie char)^
or not, the indytment cannot be sustained, u
to the defenders, seing they were not in cap-
city, in the circumstances they were into^
obedience, hein^ under ihecon:niand of olIiASi
and so soon as they gott opportimity tlAy
came out, and it was not necessaric tor ACH
to render thomseUes to a magistrat, there biUJlf
noe such chart^c in the letters, but it M
sufficient that they came out, and when tbrf
for High TreaSxjUi
;d upon, diey were peaceablie be-
ibemselTes, and not makciiig anie
e or act of hostility in the countrie ;
is alleadged, that it is not neccssar
ajostics advocat to prove that Midle-
. )x)rne subject of this nation ; It is
:hat albeit, when Scotsmen dweUing
kingdom sliould ryso in armesordoe
rebellion, ther is noe neid to prove,
ire bonie suljecls, because the pre-
lyes against them ; btit when per-
king from abroad, es|>eciaUie when
lieen a long tyme abroad, the pre-
lyes then for them that thev are
s borne, and therfor my lord advocat
c that they arc subjects, and it is
1 that tlie said James Midletoun's
?re borne in Scodand, and that he
s of a Hcots name, for albeit his
Je bein borne in Scotland, yet he
light be borne abroad, as trueiie he
lere are many of Scots names, that
goners borne ; and if need beis, it is
offerred to be proven, that he is a
borne. Whereas it is alleadgod tliat
amcs Midletoune and the other pan-
e comeing to the kingdume, and
,th rebells in armes against the go-
is airt and pairt of tlie crime ; it Is
that they cannot be principallie 1 jea-
reasons forsaids, neither can they'
as airt and pairt which can be noe
ended, but only to consider them as
s and strangers, and be noe more
ty of airt and pairt to inferr treason
ive Frenchmen or other fforraigncrs,
> over to the assistance of the Bass,
asc the could onlv have bein treated
ers of war when apprehended ;
is alleadged, that the pannalls being
; ori^ine, are so obleiged to give al-
e, it IS answered, that the former de-
r that is opponed, and the defenders
MidlctouD and Nicolson havciog
ad before the warr broke out, and
uallie in the French service, they
iiitte all their iqterest in this king-
l taken up tli^r residence elswhcre,
noe fanler tyed to alleadgeance to
e where they were borne, as was
lie case of the bischop of Sarum.
ereas it is alleadged, that in the late
es many persones of quality suffered ;
ired, that they did not sufivr properlie
taken in armes, but as having done
agaiust the government for the tyme.
tever may be alleadged as to chief
rnsy who are their owen roasters and
me, there can never be ane instance
the case of single souldicrs, or other
•noiiei under comnianri, and that
were conveened fur trehsone or suf*
Htali punishment upon that account ;
the viscount of Dundie, my lord
line, and others were forfault, yet all
• cbeiff commanders; Bat non of
on under theni, or who were taken
A. D. 1691.
at Ciorodale, were aither ifurfault, or made
subject to any puuishment, but were sett at U-
berlie, upon finding of caution to secure the
peace, and which was the practice of old, be
the Israleits, wlierin tlie case of the unjust warr
of the kin^ of Syria against the fsradits,
the armie ot the kingof S;^ria havin;r fallen in
the hands of the Israelcits, the kuic of Is-
rael having enuuired att the prophet Glisba, if he
should smite them, the prophet's answer was.
Thou shall not smite them, wilt thou smite those
whom thou has taken with thy sword and thy
bow ; Sett bread and water before them, and
let them eat and drink, and goo to theur
master. And if the defenders shall be other
way es treated then prisoners of warr, it might
be of verie dangerous conscqueuce, and this
being a militarie affair, it is proper to be deter-
mined by the rules and customes of warr, and
therfor the defenders humblie desyre that the
lords of justiciarie would be pleased' to re-
present tlie whole case as it uow standi to his
sacred majestic, who knowcs exactlie weell
these affaires, that his maiestie may declare
his royall pleasure, whither the defenders
should be treated as prisoners of ware, and in
the meantyme to delay ainie farder proeedore
in this process tilf the king's pleasure be known.
Mr. John Frank sWcwAcen for Mr. Wetham,
that he being still muior he is not obleidged to
answere to ;uiy crime, by whieb he may either
lose life or limb, as is roost clear-by the most
ancient of our lawes recorded in the mi^eatie,
book 2, cap. 49, parag. 1 1, if any minor is
challenged of Cellonie and be within age, he
shall not be compelled to answer thenuient,
but when lie is mi^or lie shall answer, miUBh
less ought he to be obleidged to defend in a
criminall pursuite, ' ubi colore juvenile po«
' test dicere, veil tacere quod decere potest'*
As our countriemaii M*Kensie hea obaerrcd,
and since by the late act of parliameBt, act
20, pari. 1st Charles 2, minors within aizttea
are not punishable with death, even for curM*
ing or beating of parents, which is ane at«
trocious hornd crime pkiinlie against the
light and lawe of nature, farr lest ought tb^
for such crimes as are Mn apidbua juris' and
unqnestionable by the leamedest doctors ; and
wee have ane ezoellend rule in lawe, Leg. 108,
Dieg. -^ de reguhsjurUf * fer^ in omnibna pona-
* hbusjudiciiset setati et imprudtntiee succuri-
tur,' ltisfurderalleadgedfbrMr.Wethani,that
he bemg ane Englishman borne, his circum-
stances doe plead ane exemption from the
crime for which he is indyted, in respect both-
the nature of the crime and the probation, and
{lunishmentyr'ofin England diners from the
awe of Scotland.
* This should be * ubi calore juvenili potest
* dicere vel taccrc i^uod ei nocens potest.' It
occurs in Mackenzie's Criminals, Part. 1, tit.
1 s. 5.
' t This should be Dig. Lib. 50, tit. 17, Uf •
108.
863]
5 W.Sc M. Proceedings against James Middletoun and atherSf [86(
Mv Lord Advocat tripUes, to the answers
Mid duplyes, the indytmeDt and replyes are op-
|iODed, and as to the indy tmeut not beings 8p«-
ciall and particular, as to the tyme, dav, and
moneUi, it is answered, that the crimes charged
doe im|>ort a tract of tyme, some of the pan-
nails beioff lon^r and shorter tyme in their
rebelliou, batthe lybell bath deiinit limits, and
it does not appear that the pannalls are pre-
judged of any defence competent by the la-
titude contained in theindytment, in which case
the persewer would have condescended more
particohirlie.
S. The crime subsumed upon are the same
with these condemned by the act of parliament
lybelled on.
3. The iodytment beares the mainer of the
pannalls their comeing to the Bass, because it
was so fonned upon their own confession be-
fore the oouncill, but it is not lybelled, that
they came either by command or commission,
but ezpresslie that they came by or without
commission, and only under command of Gra-
hame, which is ane aggrafation, and noe cx-
tenuatioo, that they came in a tbrmed com-
pnie to invade their own countrie, and assist re-
oeils against their king and soferai^, and
tbo' tbey hade come by command as is not ly-
belled, yet it hade been noe defence, since noe
command, especiallie of a ITorraigne prince,
can defend in the case of treason ; and if the
defenders logick were ^pood, a regemeut of
Scotsmen, invading tlieir native countrie by
command of the French kin?, should l)e free
of treason or rebellion, which is absurd, nor
in such a case is there the least tlistiuction be-
twixt commander and sojor, all these pretences
being groundless in the case of treasone.
4. Simple presence a«? lybelled, thoug:li it be
not sollie, is yet relevant in that circumslaotial
case ; where a rompanie of men posesses them-
selves of a fTort and holds it out against the
government, and some joyne and ahyde with
them, and give noe account for what els they
came there, and if simple ]>resence in this caice
should not lie sustained, ii might hajipen that
the haill rebells inisrht escape, because they
might be seen and (liscovered, over tlie walls,
and yet not one of them seiii in anues, but the
persewer is not straitned in this point.
5. The indytinent lyliells the charge and
intercomonint; only as ane aggravation, for
though noe such charge hade bein given, the
keepers out of the liass are nottorious rebells,
who have shewed tlieir hostility against their
king and countrie, both by holding out the
ffort forciblie, and by many other nottour acts,
and when rebells do aither take a fforl, or ap-
pear in the f'eilds in armes, the cliar£r(>iiig them
to render or lay lUmn is only ano act of favour,
and the intercomuning ensliewin*; is only to
putt the leidges in mala fide ; but the holding
out of the ifort hy armes, is rebellion, and the
joining with such rebells in amies, are guilty
thereof; but besyds, and for superabundance,
the charge against Nicolsoneand all of them,
is lawfully because though it bear not his first
name, it designes him Ntcobone in the Bas,
and with the rebells there, and noe other Ni-
colson is condescended on, and the fbrsaid de-
signation of all of them, is premiied immedi-
ately to their names.
6. That Midletoun, or any cf them, are sot
Scotsmen, is not incumbent to the persewer to
prove ; the fiersewar grants tiint it is « oeoei-
sarie quality to the crime of treasone, that the
persone accused be aither fiaftrr^ ami JurenA'
ditus, hut since Midletoun and all otben, mint
be presumed to be hafeing all the appeartnoe
of Scotsmen, and being foiind in companie with
Scots rebells, holding out treasonabtie a ibit
within the kingdome, and that he cam froa
abroad signifies nothing, since the rest ef tW
companie, that came with him, came lylu-
wayes from abroad, and yet are undoubledlie
Scotsmen, so that his comeing from thnti,
in this manner, docth raitber preaume him to
be a Scotsman, seing Scotsmen and noo rin
seem to have entered in that consptncie.
But 7, tho he were a stranger all o?er, yft
joing with Scotsmen in their treaaon or rm-
lion, be is airt and part of treason, and it wot
ane absurditie unueard of, to affinne tbst a
stranger joining with unatural traitors to tdn
away the life of their prince, abouM oot k
^ilty of treason, and ibr what is otgedsd, Ibit
if he were principall actor he wouM notksi
traitor, ergo he cannot be airt and pairt ft is
a non uguitur^ for even a woman aMiMia|r >
man to the rapt of a virgtne, would be airt isd
pairt of the rapt, and a spado assisting is tbf
crime of adulterie would be airt and ptirt 04'
the adulterie, altho both uncapable to be prin-
cipal actors.
8. To aflfirme that a count riemans residiDf
elsewhere, for never so loop:, wears out the
character of his originall, or liberats him frsn
his alleadgance, is against reaaon, and the
opinioD of all lawiers, nor is the instance of Ike
pleading to the contrair, by reverend chaidi-
men, worth the notioeing, and as for Wetbav,
tho ane Englishman, yet he is a pott ao/sft
which as to both priviledges and crimes, ood-
founds the two kingilomes, and besydes beis>
rebell here, against his naturall prince.
9. As to the late civil! wares, it is cntiiD
that none were demained as traitors, kiiK inde^
and in ]\Ionmouth's invasion, it is weell eooo^
knowen, hou privat souldiers were demiiaed,
and he is ill read in the wares betwixt ibe
house of Lancaster aud York, that liatb sac
found hundreds of privat aouldiers hanged on
both sydes.
10. As to the instance of the Syrians, k
seems the deiendiM* forgott that that coni^osie
was a companie of pure flforraigners, for say
thing that appears.
11. As for the representatitm to the ki^^i
craved, the lords will noe doubt doe in that tf
they shall see cause, but for the consequcMV
that this instance of justice may import, thff
will certainly be of advantage to the |
ment. but cannott break the Tt*ast r ~
fair ware, fi'or besyds that it may (
8G5J
fir High Treasoiu
tonll countriemcD, wberof we ha^e too maoy
abro4d, from ioTading their countrie ; it may
flJso be of singular influence to reduce the Bass ;
and as to the wares abroad, the rules are better
laid down, and more certainly observed, on
both syds, then that the case of the panoalls,
ivhicb is everie way speciall, should make the
least alteration ; and in effect, hou fair and just
soever a ware may be, yet traitors, ns well as
spyes, are knoweii to be excepted on both sydes,
and how tliis exception may be less, or more,
observed in the clemencie or politick of the
kin^i^'s and princes, on both syds, it concernes
uot this tryeall and justice.
13. For what is objected out of tlie Majestic,
it deserves noe answere, being abeolet and in
effect contrair to the knowen law of all the
worled, where minors are judged doli capuces as
In crimes special he altrocious, crimes such as
treaison, in the first place, ond though by our
act of parliament a minor committing a crime
under 16 yeirs of age be sometyme excused a
pan& ordinaria^ yet it signifies notbmg in this
caice, besides the Majcstie sjieaks of tfelionie
and not of treason ; and the ifcltonie appears to
be some feiidall dclinfjuencie against tlie supe-
rior, or els the author its l>ke liade not been
Boe fan* oot of purpose.
As to Wetham's youtli, and being ane £ng-
lislinian, it is allreadie answered, and therfor it
is craved that the pannalls may pass to the
koowledgeof ane inqueist.
The Lords continow this tn'eall till the
twentie first instant att One a clock in the al\cr-
noon, and ordaines the pannalls to be caryed
back to prison, and the witnesses and ass^sers
to attend ilk persone under the paine of SOO
merks.
Februaric 31, 1694.
My Lord Advocat declares he insists at this
<lyet against John Trotter and Alexander
M*Cleish for the crimes lybelled against them,
and craves interloautor upon that pairt of the
iybell.
Interlocctor.
The kmls commissioners of justiciary have-
ing considered that fiart of the indjrtmcnt
against John Trotter and Alexander M*€leish
the pannalls, they find the same relevant as it is
lybelled against them, to interr the crime and
paineof treason, and remitts tlie same to the
Knowledge of the assvsc.
Sic Subscrihitur, ^Dayid Home, 1. P. D. C.
My lord advocat craved the lords interlo-
Sailor upon John Trotter and Alexander
I'Cleish's confessions emitted upon the nyn-
teiDth instant in their lordships presence and
before the whole assyse in face of court ; whi-
ther the same be a judiciall and probative con-
fe«on or nott.
The lords ffinds the forsaids confessions swa
cmniitted before them and the assyse to be
both judicial and probative.
8ie Subteribitur, David Uoms, I. P. D. C.
VOL. Xllf.
A. D. 1692.
ASSISA.
[866
Patrick M*Cara, late baily of jre Cannogat.
James Edmodstoun, merchant in Edinburgh .
Robert Hepbume, of Bearfoonl.
William Somervaill, wright in Edinburgh.
George Yorkstoun, goldsmith, there.
Sir Andrew Murray, of Murray shall.
James Cleiland, younger, merchant in EJin*
burgh.
David Cathcart, of Glendusk.
Alexander Thomson Deacon, convecncr,
there.
Thomas Young, late ballzie of Edinburgh.
Thomas Young, morcliant in Edinburgh.
Thomas llamillonn, mosson, there.
John Fergusson, tanner, there.
George Dalgleisli, lorimer, there.
John Lindsay > niorchant, there.
The Asiyse lawfuHic sworiic, no objection of
the law in ye contrair.
My lord advocat for probation adduced the
witnesses after depoueing, viz.
James Douglas, vintiner in Edinbure^h, aged
threltie eight yeiresi, maried purged and sworne,
depones, that the three acoomptb marked by
ray lord Crocerig as ])racc8es or the court, are
the deponents hand write, and two of them
subscrived by him, and that he bought the
trees with the butter and cheese mentioned in
the accomnt of ffyve and f;j'flie pund, att the
pannall John Trotter's direction in tlie moneth
of Aprill last past, and that the pannall gave
the deponent the money for paying therof : that
afler tne boat ifas taken at Abeniour, the pan-
nall John Trotter told the deponent that the
twelve trees or barrells that were bought, were
des'gned to be sent into the Bass with beer or
ale, that the said pannall sent the deponent to
Cockennie toNormond Blackadder, younger, in
summer 1692, when the English ship was at
the Bass, to see if there wa9a boat come there
to take away the things that were sent there,
which Normond told there was, and that the
things were gone, and depones he heard the
things that were mentioned to be gone, were
cheeRe, butter, and hiscatt, that John Trotter
payed the deponent's horse byre when he went
to Cockennie, depones John*^ Trotter has been
frequentlie in the deponent's house, and lies
sein him drink king Jameses health, when it
was begune to him by others, and hes seen
Wetham, one of the pannalls, in the deponent's
house, with Trotter, who passed under the
name of Grein a cady in Lesslics rcgemcnt,
and depones that John Trotter did not tell the
deponent, that the butter or chciisu that liP
bought at his direction was to be sent or de-
signed for the Bass, att tliul tyme or any other
tyme, causa scientio' patet ; and this is the
trueth, as he shall answer to God.
Sic Subscrihitur, J. DowGLASS.
Normond Blackaddrr, younger, in Cockennie,
aged flO yeircs, married, purged, and sworne,
depones, that in the yeirc 1699, there came to
867] 5W.&I
the depoD«nt*s house mane things, such as
biUter, cheese, and biskut, which James Douglas
the former deponent, came to the deponent's
house to enquire after, that the pannall John
Trotter said to, the deponent that he was to send
these things to the north : depones that there
came a boat from the Bass, to Portseatonn, and
reoeaved these things from the deponent, which
he knew thereafter to be the Bass boat : depones
that John Trolter told him afterwards that
these things were sent into the Bass : depones
that John Trotter would have had him to send
in wore thinsrs to Bass, but he refused ; and
being interrogat if he saw the forsaid goods,
dq)t>ne8 that his servant lass receaved them,
but he saw them not opened up, but he knew
them to be provisions ; and this is the truth as
he shall anfewcr to God.
iSic Subscribitvr, Nor. Blackaddcr.
James Ilavy htelie lievtennent, sone to the
deceast colhmell James Hay of Naughtoun,
could not puige himselfe.
William Smalll, seaman, in Dnnbarr, aged
.Aourty-three yeires, married,, purged, and
swonie, depones that about two moneths or six
weeks agoe he sawe the pannall John Trotter
att IHimhar, awl that at tyme the pannall
Alexander M'Cleish was with Trotter: depones
tlie pawiifll John Trotter : desired the deponent
to cary bkn into the Bass, and offerred to hyre
his boat for a twelve moneth to goe to and from
the Bass, and when the deponent refuseil to
cary Trotter into the Bass, Trotter tbreatned
to cutt the lugs out of his liead, and thcrafter
John Trotter sent for the depouent^to JamesHa-
miltoun*s house in Dumbarr ; that Alexander
M*Clcish the pannall said to tlie deponent, that
Trotter hade givt:n him ten shillings to distri-
bute to the deponent and his neignnonrs, and
that when the deponent and other threi> uf tlicni
returned from the Bass, the said M*Cleisli gave
each of thcni a shilling bcsid drink, that Alex-
ander Bl'Clcish the pannall gave one of the
crew called llolicrt Spevin a Tetter to carry to
llie Bass ; depones that Alexander IVrClush
the pannall hyred the deponent and his com-
pauie tn gtic to the Bass with tlic letter, aiul
tliat the said ]>I'C'!cisli spoke to the deponent
about goeiu^ to the Bass with the letter, but
did not see M'Cieish delyver the letter to 8pe-
vin ; depones tlie letter was caryed tu the Bass
hy the de|)onoi)t and the rest of the crew, and
was delyvercd by Kobert Spevin ; depones
Kobert Spevin brought back ane answerc from
the Bass, which he carryed to M*Cleish the
pannall's house, but did not see himdelyver it;
de]>oues that Alexander M*Cleisli gave the
deponent and everie ouc of the crewe three
shdliiigs for that Foyadge ; depones that the
Wednesday before Cnristinmass last, Alexander
M^CIeish tlie pannall sent for the deponent and
his crewe and spoke to them about caryeing
two men aboard of a ship, depones that these
two men, atler the deponent and they were gone
a little out to the sea, forced them to carye
them into the BaKs» and tliis was about ten
Proceedings agahui Jamet Middletoun and cihen^ [8BB
a-doekattnigbt; depones RflkertfipeviilriA
the deponent that the fannall Aknader
MKISIeisli tohl bim that Oiese tvo men w«e
goeing into the Bass, end that wbenlbey cnni
to the Base, ooeof thetwooMn wfaBied, led
the other called a Hadtoett ! a Hackett ! wA
the Bass answered then, and landed the two
men at. the Bass, and 'they pjare tiM i'
and the other eeamen a gmme ; dr
tliey came eshoare tlw panml
M<;lei8h, changed their gouiie, ud gavecvfrie
one of them fyveahillinfft; depenea thniwka
the deponent went in wi& the letter to the Bhi,
the pannall, Alexander M<Clc«h« ivoald bait
them carye in a twentie nynt barrell ef ik ts
the Bass, bnt they would not take it in, oal
that the rest of the deponent^ crewe loM im
that be had brooght it to tbeeand end fbrtbtf
effect, but he did not eee it himselfe ; denons
that the pannall MK^leish ferhade him and Ik
rest of tlie crewe to lett their goeing tolhi
Bass be knowen, for it voaM hang inen ■
weell as him ; defiooes he oamiot wfke; hI
this is the troth ts he shill amirere to Goll.
Sic Subteribitur, David Hon.
Alexander Wood^ ffisherman, in '
aged threttie yeires, maried, pnmedi mi
swome, depones that the WcdMmy Wv
ChristmmaH last, Alexander M«Okitb, tki
pannall, desired the deponent and- his unit] to
carye two men aboard of a ahipe, and dmral
them to make haste, and he wooM pay ttoi
when they brought the goods ashoare; tkil
M'Cleish, the pannall, waited upon the two
men to the boat, and kissed them before thij
went abroad ; depones that when the boat wm
gone a litle ofl tlie shoare, the two men foccid
them to carrye them to the. Bass, and tbit
they landed the two men att the Bass, and tbe
two men gave them a guinea ; that when tbcj
came to the Bass the two men called a Hadct!
n Hacket ! And the Bass answere«l them; de-
IKHies that when they came ashoare a^ine
they came to the pannall, Alexander M'Lenh'i
house, and he changed tlie guinie to them,
and they told M*Leish that they hade putt ths
two men to the Bass ; depones that afterward*
M^Leisli the pannall sent for the deponent t^
come to the pannall, John Trotter, who thm
passed under the name of Dods, and the sud
Trotter passing under the name of Dods wooU
have hyred the deponent and his crewe to carjt
him into the Bass, and oflfeired them nwej\
and threatene<l to cutt the tuggs out oftbeir
head when they i ' " '
pannall, Alexander
nciit and the other seamen to goe i
with a letter, and gave to everie one of them •
shilling in Bailzie ffaas cdbir, and they wjHl
with the letter, and Robert Spevin caryelfp
the letter ; and that the said Robert oftm
brought back ane answere of ye^leCter, wWk
Rob«'t Spevin car}-ed to tbe pannell AltIM*
derM*Leishes house, and the deponent Mik
him delyver it to M*Leiah, thepsnnill, Iklii
owen hand ; and the pannaU, r
i 4
868]
fitr^ High Treasm*
«vetie ooe oF ihtm^ ^heii they cMne aahoiTe
with the letter, tkree sliilliog^ f^lai'tiAi^ and
flOQM tie; &f)iJ at that tytne tlie p«utia)l,
M 'Lei&b, bade tiieni keep lliek toiigfues to
theinselres ; dcpane^ he catinoi ivrile ; and
tliit Uthe ti uctli as he shall answere to God*
Sic SubicriUlur^ Davw Home.
George Kerr^ wrig^ht and seaman, in Dum-
bar, a^ed thrtUv yeires nnd above, maried,
purged, and *worne, depotjes ro/j/i^rw/ts prcct^
denti ft^ttiost Alexander M'Li'tsti^ the [mnnal,
^fcnt the Cjtryeiii^ the iwu men to the Bass,
^Kf pt that he did nnc see M'Leii^h Idss tlic
^B men ; and that be iftas one of thf'm that
Hryed in the tcUer to the Bass ntt 3l'Leish
^PTpDUatrs dc^hv, and wWn they retun>ed
Hpi atie aiiJiUj r (Votn the Bass, v%liicb was
^Teii to >t'L<^ish, 3M.ei»li gave everic
one rjf ihctii three 5l»ithni;is, and bado ihcm
^pp the busieuei i|Uyot) because \i was dan-
^■rouK to tuajte it kuoueii ; depones, that he
Hnset^n (he pann^^.l John Trotlcr, att Duiiibar^
Md thai h(i |ia'!$ed under ttte name of Dodii ;
depofos he cannot write ; and tlii^ b the truth
HA he (yhall ansuer to God.
$k Suhscribitur^ , I>Al/lD KoM£,
Wiltiam HuherUtm^ of Powcreick, seantati
and skipper att Portseatouu, a^ed 25 yeirci,
tiDtnari^, purged^ and MuopDe; depot les that
in May last John Trotter, the pannull, sent tt>
Pbriseatouii to the deponent to crime to Wintonn
to hitn, and att that tyme ^\vi\\ the deponent
came to Gcor*£e ITog^s house in Winloun, he
^luiii John Trotter, the |i4ionaJ[, in couipunie
^Hl M*Lean and M^Gowne, two Ba»8 rebelk \
^Bones tliat ate that lytnc the panuatl John
^Bitter proposed to the deponent to lett hiio
^Bre his bi»at, imd he\«ou1d furnish it with men,
to goe senate captain Eurd's shipe, which was
lettto guaird the Bass from gettiug- provisions,
Mri Ibtit be made faneofters to him for that
^H^Ote ; and when the deponent refused the
HBt fPropoaal), then the pannutl John Trotter,
made a loc^od to ttie deponent, tiiat the depo-
nent might carye in provisions hiinselfe to the
BiM i and that Uie pannaQ John Trutter, wa^
10 give him money for providing therof, att
f^ih Or Aberdour, to wtiicU prDposaU the
Dt agrccdf and at that tynie got a leg
' l»fii bitn» and tiie money ti^at ihe depo-
I gott att s^evemll tymes woidd amount
td thrctt) *tfvo pundii scou, and nnmediatly
•Iter iti^ir beinj^ att ^\ inloun thry mett a
■ttiod I vine liU Niddrie, and Ihetufieir at
^■Itibtsrgh, wher«^ the dp|»onent gott a erownc
^Kn the pannall Trotter ; deponeis that ttte
H^oenl mani IVi'Govan and IVrLean Idainie
^mtter the pantiall for havcinq; receaved
thretty pund sterline fur fiimi&hju<r provj«ions
fOf tiie Baat, and b*'iujr ne^h^eol yr'io,
i«l that liie iunnfcy »*hich the deponent
avedf tvift foi hift piiiues for goeing to the
\ ; aud tbia i^ the titttb as he sbult answer
Bic SjiiktcrikUur^ VV(u.iAM UoaOTso?!,
A. D. 16/^
Mj Lord AdD0CQi9 fac farder probation ailN.1
dtjc«d the patiiiaU's judiciaU ConlieasioD, ^k '"
the tenors followesi :
EuthBUAon, IV6. 19> 169K
In pmeDce of llie lor«ki cntoioisaintteni o# I
joatiKiane a»d aaaieera mIImbiI in jodgMaM^]
Jokn l^ottnr the panaaU, cMii>lesBea iKvii ultuna
the mottelh oi August, 1691, he has *'
assisted the Bas& >viti meat, driuk, *
tilings coratbrtuble to tbem, and hi^a held coi («»•
poodrnce athenraye« with tha rebelts in lH#
BaKs frequently till the moacih of Ulafcb k|fii,^
nnd since 31arch [»si he seat ill a letter t<» tli«H
i\^Us in the Ba^is, which was none c€ h\9
Qwen writing, and receaved ane answere k^fm
tbctn \ iWchn» that for the iyni4> preeeedin^
March last, ti was but three tymat that hi
supplied them, tie. first in August, 1691, ali
which tyme he sent by Backet and others of]
the saids rebctla billet and maill^ whicN
llackct bought himselfe, and was ^hipt att J
Lcith fur the Ba^s and ihe pdnuair$ puirt waa*
to ^fivc Ilacket liis advice how to maiiadg^c bis
bu^iencs ; deelaires that the boat wa*^ » Bruit*
t island boat, t!tut he know us neither the name
ni the boat nor of tlie master ; dechiirc^ the^
sjouond tyme was in rebruarie or March, 169 U
att which tynie the ponnall sent in some tu-
baeco and other small things from FisherawQ
with GroUame's man ; and at tbut tyme he
sent in tii'o letters with Charles M:iilland to the
Bass ; the tiiird tyme was in Decc mWr J692» or ,
Janwarie theraftW or therby, all which tyme
some of the rebel ts came ashore and broughl
tnoney with them, and the pannall directed <!
them how they should gett butter ami ,
cheese, and bisket for tb^ir uioney ; de*
elarcs that about March last he mett with J
skipper Robertsooe att Wintouue, and the.
skipper being to goe to the north, the pannall
desyred him to~ speak with M' Go van ojitt ,
Maclean, two of the rehells in the Bass, and atl
their desyre he gave Roliertson money ; and he
thinks the said Robertson e mett with' them af- <
terwards, and be hiinseUe told Robertsone thai
he thought they would propose to R'
to goe to the Ous«, &ud they would g;
for it, auil iJeclaires that he jjavc liL-
mopey to buye tweke barrel Is to carr\e Xt» i
Aberdonr to fill with beer or ale for the Bissp <
which iBOuey he trolt from tlic Bass men; dc*
dares that he belicres the four dollars men*
lioncd in ane arcompl under his hand tvas given 1
be him to the Bass men, ajid aekno»lrd;^es thel
said accompt to be his hand write ; and that il' 1
was accompt drawen up to send to tlie rebdJa ^
to the Bass, that they migiu send out money te
pay it, which he knewthev hade in their handfV
as they said to him : and that the said memo-
rundum was drawen out at vr desire ; aeknow-
ledges the article of fryfiie-fyve pund mention-
ed in his accompt, payed to James Douglass for |
things to be sent to ihe Bass, bill they wei^e
never seat to Ihe Bass nor to Portseaimm ; de- l^
dairea that he sent from Dnnibarr ie the end of
December or begioing of Jaeirtrie bat, a let*
87q 5 W. & M.
ter from a fineind of Hacket's to Hacket then in
the Baas ; dedaires that be gott a letter with
the boat that returned from Midletoun, the
present goyemour in the Bass ; declaires they
used to call him John Doda and he bea gotten
the lettera with that direction ; confesses that
the butter and cheese that he advised collonell
Grahame thegovernourof the Bass man to buy
ibr the Bass in December, 169?, were caryeil
to Portsoitoun by Grahame's man, and by him
and his nei^bbonr transported to the Bass under
oollour that they were goeing to the English
shipe iyeing in Cockenieroad as the pannal was
informed ; confesses that all his correspondence
and supplie was according to the dates above
marked, viz. before March 1693, except the
letters which lie sent and receaved in Decem-
ber or Janwarie last ; he declines any defence,
and throwcB himselfe in their majcKtk's mercy.
Sic Subicribitury Jo. I'rotteb.
> David Home, I. P. D. C.
Alexander M^Leiskf the pannall, confesses
that he sent in a boat with two men to the Bass
in December last, and that the men were caryeil
in and lell there ; and that tha seamen when
they came back told him they hade gott a giii-
nic for tlieir nuincs, and he chaingcd the guinic
for them ; that he sent in this boat at Charles
Blaitland*^ dcsyro, who slid to him that hu was
warranted by my lord chancellcr to send in the
boat, for bringing out of the Bass goods belong-
ing to Charles Maitland, and that 3Iaitland
said to the pannall, that the two men were to
sett out the goo<ls and come out thcmscl'- es, and
never to rcturnc againc ; confesses that in
Januarie last he gott a letter from t!ic paiinall
.Tohn Trotler, directed to Hacket one of tlie
Bass rebclls, and delyvcipd it to a scainun to
carye it into him, but knowcs not what wcs in
the letter; confesses that the seamen broui^ht
back ane answere and ;>:ave it to him, which
he gave to the pannall John Trotter ; confesses
tliat the seamen that curyed in the letter to the
Bass, spoke to the pannall to send in a barrel!
of ale to the Bass, and that he did provid a
twentie pint barrell, bi.t it was never given
to them ; confesses he gave the sc^amen twen-
tie shilling starliuL^ of the mon-.-y lie goU from
John Trotter for caryeing in tiie letter to the
Bass ; confess(.>s that Charles Maitland told
him that one uf the two men that he sent into
the Bass was Hacket, and that the seamen told
him that when ihey name near to the Bass the
two men in the lK)at cryed a Hacket ! a Hac-
ket! and that Maitland did not tell him at the
tvme when the two men went in that one of
tuem was Hacket, but told it him afierward<.
He declines any defence and thix)wes himselfe
upon mercie.
iSic Subscribitur, Alexander IMaclish.
David Home, I. P. D. C.
Intirloquitor.
The Lords derlairrs the conicssions of John
Trotter and Alexander Til-Lei^h arc not receav-
ed by the lords as a submi^siou, iu regaird my
Proceedings against James Middietoun and others^ [8IC
declairet he is to
lord advocat
probation,
Sic Subscribitvr, David Home.
The lords ordaine the assize to inckne, ud
retume their verdict to-morrow at twritc
a'clock.
Verdict asaintt Trotter and M' Leish ; Teh, S3,
1694.
The said day the persons who past upon the
assize of Jotm Trotter and Alexander M'Ckiik,
prisoners, for supplieing and correspondiBi
with the lebelb) in the Bass, returned tbdr vcrr
diet in presence of the saids lords, whereof die
tenor foUowes : The Assize haveing elected aid
choisen Thomas Young, late Batlzie, ia Edh-
burgli, tlicir Chancellor, and Robert Uepbme^
of Bearfoord, their clerk, and haTeinff bcMl
and considered the lybell, ond the lorat ikff
intcrloquitor theni{i(m, they all, with ooevoier,
find the pannall John Trottery what be kii
owen confession in judgeoient, aod the wit-
nesses de|)osition8 adduced against him» guikj
of treasonabk; supjdyeiug, tnroisbing, oorrs-
ponding, and keepmg intilligcnce with the R>
belU in the Bass, several tymes befi»re the let-
ters; of intcrcommimin*', dated the 13tb d
Aprill, 1693, and since by keeping oomfpen-
drnce with the said rcbeUs, by sending bsf a
letter to them, and be receaviug ane answere ti
the said letter from them; and sicklvke the
said assyse, all with one voice, ffindi iMpH-
nail Alexander M'Leish what be liui oweocw-
fes>i(uie ill jnd^ement, and be the depositioB<
of the witnesses adduced against him, guilty of
keeping corre*;))ondence \nth the rebelwiothf
liiiss, be sending in of a letter to them,iDd4ii'
receaviug a leuei* from tln-m, and of seutlioK iu
of men to them, in \tilncss ulierof those pn-
sents are snbscry ved be the said chancellor lud
clerk, att Kdenburgh, the 21st of Febniarif.
1694.
iS'ir Subscribitur, Thomas Young, Cht.
UOBERT UCPOURNE, CM.
The Lords coiitinow the pronouoonir cT
doome and sentent-e against the saiiU ]ianoiilft
till ihe twentie sixt instant att two aclockintlir
at\eruoou.
February 26, 1C94.
The lords commxsssionen; of justiciariebin*'
ing considered the verdict of assise retuniol
a<^'ainst John Trotter und Alexander M'i/'isk.
prisoners, whereby the said Jtdin Trot(i;r i»
found guilty of treasonable supplieing, fiiroi.«b*
ins;, corresjionciing, and keepin^^ iuteirigenre
with the rebeils in the; Bass, severaTl lyniesM<N^
the letters of ititercomuning, dald the \^
of yiprill, ItiiK), and since by keeping of conei-
pondence with tlic saids rebeils, by sendisf in
of a letter to them, and receaving ane aiK«W
of the said letter from there; and the lud
A(fxan«ler i\rLeish is found guilty of IscepisC
correspondence with the rebeAs in the BsHv^
sending in a letter to them and of rectavisf *
letter from them, and of sendiBg in an to
873]
JxiT High Treasofu
A. D. 1692,
[874
lliem« the sa^s lords iherfbre, be tlie roivuth of
^ohii Ritebie, dempster of court, deceine and
Kdjiiilge th« saidd Joliu Ti-otU>r und Alexaniivr
Bl*LeLsh to be laken lo the mcrcai crocc of
EdinburgU tipou Wednesduy tbe '2Bth day of
Mftrcb next to come, bchvixt two and tour
aclock in the aJlemooii^ and there to be hnt*^-
ed on a gibbtt till they he dvad, and or-
dm'mes their uames, flame, iMtftnorie, and ho-
nours, to be t'Xtinct, th<Mr bInuJ to he talis I-
eil} aud iheir atmes lobe riven forth aud de*
lute out ot the books of armes^ so that their
pcHf erity may nut have place nor be able here ^
af>er lo hroike or joysc any huuourif tilh-S|
officer or dij^niiits wttbiu this realino i" tir.^^*
conicingf, and to have furfuuhctl,
vod tiut all an J sunrhie their Ian4lij> ii ^^ ,
Ucks, 4l«ediu)^s, rounies, jKMsessiotis, tfooda attd
lEvar whiit!?omerer iiertainiri^ to Ibriti, to our
% lord and lady to remuine perfi^twal-
li . it'ir in.'ijestieii hi projieriie, uhtcli is
pfviiiuiced ri>r do*»iitt'.
Sic Sulncrditur, Dxno HoiUB. P.
C C'HmpbeH^ Ju. Lauder, Ar. llo(>ey
J, Falconar.
Cap! Jumt:^ Midtlktoufit
Wiiiiam Wulhamey I^ison^rsc.
Witiwm Nicohone,
idytcd &nd accused fur the treasonable
ing out of I lie rock and fort of the Bjss,
their majefftiffs and their i;overnmcnt»
tresuKJnabIc cryriies ly belled against
ut in diebus pracedcntikns.
rtutn. — Sir Jama Stewart tber majesties
1 1 sir Jitmes Ogihie.
^rtfcurattin tn (/^earf .— Sir Patrick Hume ;
Mr, John Frtmk.
The lordis comcni&sioner*; of justiciary having
onxidcred the ind) tnieiit raist^d and purtiued
«ti tbe instance of their niuje^ties udirucat
aifaio^t cnptaiii J nines ^fiildleioune, Williaxi)
Nicobone, ami VVilU^m Wotbam, prisoners,
w Uh tbe debate tbernpou, ibey lind the iodyl*
mcnt relevant lo inftr Ibe paynes tybelled j
and liaviiig coosidereiL tbe speciaH defi^^nce pro-
poned for coptain Jamcj 3V1 tddtetoune, that be
was bom abroad in Flunder», tfiudA Ibe same
elevaiit to lak^j ofl' the cryrne of irea"!oue, but
; to hbei'at him from a cnpitalL punishment ;
' if he can make it appear, that he or bis
DiOflWIider when th<^y eoteiwl tlie Bass, ivere
* -^ >d with a commissioDe from the common
t In thiM declared warr, tbe lords remitts
aisttmeutto iiis majestie^ and repelUthe
emaoeni defences and duplyes prepared
t i^annallSf and remitts tbe mlerloquitor to
kttoivledee of Liie oai^yse.
Sic SitUcrtbilur, Davio FIoii£^ I. P. D. C.
AssisA .
Sir Piatrick Nitbet, of Dean,
Jmhc* M^Lurgf late dean of Gild^ of
linbilrg.
Robert Hepburn, of Whiiburgb.
SamuellM'Lellan, mercliant, in Ediuhtir]^
James Clel!aiid, merchant in Ediabnrgh.
Pat. Thomson^ merchant^ In Edinburg^b.
Sir David Carneijy, of Pillarovv.
Geor^ Clerk, late bajlbef of Eiliuburgb.
Patrick Johnson, merchant, there,
Thomas Younjj, merchant, there.
Robert Cutbbert, merchant, in £diiihur^b.
George HumC} late baiUteof Edinbur^.^
lliomas Fi^iber, meicliant, there«
Thomas Hamittun, mason, tlie re.
8tt' Thomas Kennedy, of&irkhdf
The Assyse lawfully swome, noe objectloae
of the law m the contrair.
illy Lord AdVii^atf for probatione adduced
the witneaJ*es atkr deponeiog, viz.
Espl4m Cratrfoord\ lieutenent to captain Alex*
aiider Stevenson, to sir Jumes Mdurreiff' » regi-
ment, aged tbrettie six years, unumrrted, purg«^
ed, and :>Moriie| depones that about JuUy past m.
twelve uionelb, the de|M>ueot **eni to the Bii&s t»
brinsj out some Dutch sea nien, which a Fieuch
Caper brought up to the Bass, and that ittt
that tyme the pannall, caj^laui James Middle -
touoe, came out from tbe Bass in a boat lo the
deponent, ami asked the deponent if there waa
any coinmis^ionat otiicer alioard tbe boat, ia
which the deponent was ; and the said pati'*
nell did then delyver a letter or of>en iaemo>
rauilum^ to signijie to the government, that the
saids prisoners were in Ibe Bass and desyreio*r
ihem to releive them as prisoners of warr,
which letter ormeiuorandum the deponent re-
ceived from him, und being interrog-at if be
saive the said pan nail or any other of bis com-
panic in tlie boat >i ith him have armes^ depous
be saw ihem bav e uoe armcs, and depones that
in the said moneth or in the monetb of Aui^ust
thera(\er the deponent by order from sir Tho«
mas Livingstone, did goe a second tyme to the
Bass to receave the saids prisoners, and at tbai
tyine he did see the paunell, captain Jatnes
Middletoune, in the Bass, and spoke with him,
and the pannell came out with the <le)K>nenl lo
Castletoune and therafler went away in his
skiti towards tbe Bass, and depons that in Fe-
breA^ary sixteen hundred and nyntv three, the
deponent saw tlie pannall James Middletoune
a third tyme n|>on the rock of the Bass, the
deponent having gone in there by order from
my lord chancellor to bring out James Hay,
and thai when he parlied nith the goveruour,
the pannell was present with the governor, as
one of his company, and all tber present, the
paunell as weell as others, so far as the deno-
nent remembers, did say that James Hay t>etng
one of tbeir own number, and a deserter, ivas not
a prisoner of warr, and the deponent J efl tbe
uannall in the Bass ; depones that the dejionent
mthe saids monelbsoiUully and August, Bixieen
hnndref] aulKiyntietwo, and February, sixteen
hundred and nyotie three, was commander of
tbe pairtie, that was lying att (.'astletoun, as a
Sxard against the rebeils in the Bast, aa beuMj^^
€11 in r^»elUoae \ de|ioiie9 he saw the rebelk
875] 5W.&M. Proceedings agai$istJames MiddUloun and oiherst [876
Jamet Hay, latdy leiHenmuit, tone to tha df-
ceist c^llonell James Hay, ^ NanGhtamie,
aged tbcetty-two yeares, uomanied, poiged,
and sworne ; depoues, that Ibe deponent came
in company with ooUooeU Grabamefroan Dafr
kirk, to recruit the Baas, and that Middtetoiai,
NicolsoD, and Wothara, the panneUs, were ia
the company with them ; and that when tliej^
arrvved att tlic Bass it being in the niffht tymi^
and the Bassmen supposing they might be eua-
mies, did at first refuse tbein entianoe, bat
after they understood them to be friends tbej
receaved them all as lecruita to the garrisoos ;
depones that they arryvcd att the Bsas ia Ik
moneth of December, 1601; depones, tbit
during the ty me that the de|io»ent was in ibc
Bass, wliich was till the March thereafter, be
sawe the three paunells in armes u|Mm dutv bjr
turncs as it fell them ; depones he did hav
king James's comiiiissione read in tbeBsH,
and that all that were in the Bass were csiM
to the rfiidiitg of it, and that tlie ponndb
brother Michacll Niddletouu's name was filtod
up with con^iit of all present Depones, that
the three panneUs were upon duty by order of
Michael Midltoun, governour, met bis name
was filled up, and that Ity caiyin^ of i
aud that the Bass diil at that tynie hoMi
against their majesties king WilKam and f
Mary, as they still doe ; and the dcpoam
when he came out of the Bass, he left theia
there, and they were iu the Bass with Ihm aH
the tyme he was there; deponi tliat ii
Febrwary, 1G93, the dc|)onent went back la
the Bass, and at that tyme he dkl see the pn-
nolls Midlelouiic ami Nicolsonein the «rarrl<soue
of the Ba<;s, and at that tyme he was roaile
))ri8oncr hy the garrisunc ; dcponi-s, thut when
le went in to the Bass labt he went in by order
oftlic govcrnniciit, causa pairt ; and this is Ibp
truth as he shall answer to God. 4uil btdng
interrogate if the deponf'iit or any iu tils coai-
pany came to the Bass be fertile of a commis-
sione from the French kiii^, depones, tint
the deponent knowes of noe commtssionc, ex-
cept one from St. Germans, sig;npil by llit
Kugiish sub-scxTetary there, which apiioinus
the dciionent by name and Mr. Nicolscme ili-'
panuell with others to be pitched U|)0n to coro"
to the Bass.
Sic Subscribilur, J a. Hat.
WillioM Robert sonc of PowcrcilT. skii>|Kr"i
in the Bass take a bark and cary her up to the
Bass in the hmder end of hanrest 1G9S, depones
that in conference with the Bassmen, he heard
them say that they would keep out the Bass as
long as they liad bread and water. Causa tcien-
tiapatelj and this is the truth as he shall an-
swer to God.
Sic Subscribitur^ Esplan Craufurd.
Oamn Joknitone, sone to John Johnstoune,
ineasengcr, in Dumfries, late sooldier in the
Baas, aged thretty-foury cares, married, purged,
and swonio ; depones,' That in August, 1091,
the de|>onent himsclfe went into the Baas, and
about ibur moneths tliereafter, the three pan-
neUs, captain James Middletoune, William Ni-
colsone, and William Wothamc, airyved att
Ae Bass, in company with leivtennant collonell
William Graliame, and were received by the
garrisone as friends, and irontinued there for
BOmo moneths; hot that they did not cary
nrmes, neither did the giwemor himselfc caiy
Arms, nor any others but the common soldiers
when Ihey stood eentries ; and that the three
panneHs were all reckoned gentlemen, an<l dis-
tinguiahed from the rest of the commonality of
the Boss. Dcjioncs, that the said leivtennant
colloncU William Grahame.'in whose company
the panaalls came to the Bass, brought king
Jameses commissione alon^t with him, and the
deponent heard it read, but there was no other
present but himselfe when he heard it read ;
and that the said commissione made Michaell
Middletoune governour. Depones, that he
knowes the Bass was hohlini^ out against the
government of their majesties king William and
queen Mary ; depones, that he exprcst his <!c-
syre to (fctt out of the Rass to Mi<:huc'll Middle-
toune the {jov«»rnour, but he reliispd it, and
ypoke sharplieto him, hut the deponent blamed
the rest of the jQrentlemen of the Bass, and par-
tifulariy the pannolls tor keeping him in. De-
pones, that he sawe the |»annelLs Midletoun and
nlicolsonc all the tyme in the Bass, frae the
tyme they came to ii till May last, and that he
cannot be positive when itVaa that Wotham
came out of the Bass, causa scientite pafet^ and
this tiio truth as he shall answer to God.
Sic Subscrilitur, Gawen Johnston.
Rchert M^Ftirlanfy bouhlier in major Mon-
ro's company in sir James Moucreln's regi-
ment, a;;cd i\veuty-tivo veares, married, purged,
and swurne ; de;)ou('S, that when lei\tenp-^t . » « . • i-i
* " ,. "• "^ » I » , , ^, seaman, at Portseaioun, mchU noiU
Crawluciii went m to t lie. Bass aneni the U tch ^ ' '
seamen in August, lo j'iy the deponent ^tent
alongst with him, ami did see the i>anncll
Juiiies IMiddlctuuu in the Bass ; and at the
John Rtidy servant to sir William Bsinl, fi
Newbyth, aged tliretty yearcs, married, par*-
ed, and swome; de^iones that about the twtfo*
same tyme he came ashoar to Castletoune witli ^ Xy third day of May last, about nine aclock ^
leivtcnant Esplan Crawfoord, and thcralUr saw I night, the deponent being at a pbce callel
him goe off towards the B;iss ugain, causa
identic lie was one of the souldiers of the gar-
risone uf Casth tonne that was u-atehing against
the Bass: depones he sawe the paiinall Mid-
dletoune with noe armes but a short ba\ gonet ;
depones he cannot wryie. And this is the truth
as lie shall answer to God.
iSic Suburibitur^ . David Home, P.
Jagg, in East liOthian, with some company
taking a drink of nie, the three pannells wcsi
by at the tyme, haveing in company !»•
swords, two hay«jonets, and a gunn, and the
dpponent and his company observiog tbeOi
tbIlowfHl them to Baukhead, and overtooke
them att the east end of the loune, aod
them who they were, and where tbty ^
far High Treason.
d tbcy said they were fifoeiof]^ to Tud-
» and the deponent adced Hrho they
v, and t|pe piuinells could tell of none
r there, nor give any good account of
b; ithere^ipon the deponent and
r company did apprehend tliem, with-
gaoyresiatance, ctMia scientiapatet,'
8 the trueth, as he shall answer to
A.O. I6&i.
[878
ubtcribiturf
John Reid.
I Borne, gardner to sir WiDiain
Newbytb, aged twenty fy ve yeares,
puiged, and twome, depones con^
eedenti m omniliui.
WiLLUM Burn.
David Uous, P.
ds ordainet the Assyze to inclose and
heir vavdict to-morrow, at twelve
JMnrary 97, 1694.
id day, the persones who past opon
s of captain James Midletoune, n il-
>l80oe, and William Wothame, pri-
etumed their Verdict, in presence of
k)rds, whereof the tenor fbllowes :
2se having elected and choesen sir
ennedy, of Kirkhill, their chan-
cy all 111 one voice find it proven by
itions of the witnesses, That the three
riz. Captain Jamea Middletonne, WU-
il90iie,and William Wotbam, arryved
98 in Decendier, 1691 years, in com-
li leivtt. coll. William Orafaame, and
i and abode there sevavll moneths
baell Niddletoane, who commanded
by virtoe of a cahimissione from the
Jaoaesy hohlin^ out against the go-
of their rniyetUe'a king William and
ary; aa witness thir presents, sub-
fy the said sir Tlionsas Kennedy, as
r, and the said Robert He|>bume their
Ediabnrgh, the twenty sixth day of
February, sixteen hundred and nyntie four
yeares.
Sic Subicribitury Tho. Kennedy, Canc.
Rob. Hepburne, Clerk.
Continued till the 1st March.
JifarcA 1, 1694.
The lords commissioners of jqglidary having
considered the verdict of assyse, returned
against captaine James Middletonne, William
NicolsoDe, and William Wotham, whereby it
is found proven bjr the depositions of the wit-
nesses, that the saids three panpells anyved at
the Bass, in December, aij&teen hundred and
nyntie one yeares, in company with leivten*'
nantcolloneu William Grahame, and continued''
and abode there severall moneths with MichaeU
Middletonne, vrho commanded the Bass, bjc
virtue of a commission from the late king
James, holding out against the government of
their majesties king 'William and queen Mary ;
the saids lords the^or, be the mouth of John
Ritchie, dempsler of court, deceme and adjudge
the saids captain James Midletonne, William
Nicolsone, and William Wotham, to be taken
to the marcat crose of Edinburgh, upon Fry*-
day, the sixth day of Apry le next, to come bee
twixt tno and four ack>ck m the afternoon, and
there to be hanged on a gibbett, till they be
dead, and ordames their names, fame, end
memory, and honours, to be extinct, their
blood to be tainted, and their armes to be riven
forth, and delete out of the book of aimes, sue
that their posterity may never have place,, nor
be able hdrafter to bruike or joyse any titles,
dignitie8,or offices, within this realme, mtTme
comeing, and to have forfault, emitted, and tide
all and^sundry their lands, heretages, tadcs^
steidings, rooms, possessions, goods, and gear
whatsomever pertaining to them, to our.eover
raign lord and lady, to remaine penpetiiaUj
with their miuesties in propertie, which is jftQm
nounced for dfK>m.
Sk SubKribitur^ Patid^Homb, P.
C. Campbell, Jo, liauder, A. Hope, f.
Falconer.
879J
WILLIAM IIL Proceedings in tlie Parliament of Scotland, [8S0
400. Proceedings in the Parliament of Scotland respecting the Mas-
sacre of Glenco: 7 William IIL a. d. I695. [Collection
of State Tracts published in the Reign of King William the
Third.*]
COMMISION for Trial of the Sloanrhter com-
niitted at GleiMW, upon the ISth day of
February, 1692.
GULIELMUS Dei Gr. Map. Brit. &c. Om-
' nibus probis hominibus, ad quos praesentes
' Litene nodtroe pervenerint, salutem. Quan-
* doquidem nos considcraotes, quod etiarasi nos,
* " From an Article entitled, « The Mas-
<( sacre of Glenco : Being a True Narrative of
*^ the barbarous murder of the Glenco men in
" the hig^hlands of Scotland, by way of military
<< execution, on the 13th of February, 1692.
« Containing' the commission under the great
'* seal of Scotland, for making an inquiry into
*< that horrid murder : the proceedings of the
'* parliament of Scotland upon it : the report
'* of the commissioners upon the inquiry, laid
** liefore the king and parliament, and the ad-
" dress of the parliament to king William for
** justice upon the murderers. Faithfully ex -
** tracted from the lUcords of Parliamrut, and
•* miblished f«- undeceiTing those who Ijavc
**^ been imposed upon by false nccoutits.*'
The Narrative is preceded by a I/.Htcr ns
follows :
"Sir; III answer to yours of the 1st of
October, I herewith send you from the Reironis
of our parliamenl, a true and authcnlir Ac-
count ot* the Massacre of Gleiim, as ymi li^li-
teously call it. I wish this matter could h:»ve
been forgotten to eternity ; hut siiici- you say
it is altogether needful for the viitilieation uf
the justice of our country, against mraiv lals( .
slanderous accounts that are daily j^iven <»f
that business in England, I am \Villlii(>- you
print what I now send you ; and th.it you uiwy
be furnished to answer all ohjectiuns against
the truth of this Narrative, you may inform
any Englishman of quality, that is willing to
be satisfied in the matter, that the Report nf the
Commission, the Address of our Parliauieut
herewith sent you, and the Duplicates of the
lord Stair's Letters, are, or were at least in the
Scots Secretaries Office at London : or if they
should happen to be withdrawn from thence,
they may mform themselves fully in the truth
of this from Mr. Johnston, who was at that
time secretary of state for Scotland, and had
particular directions from the late queen Mary
to push on this inquiry, and search into the
bottom of that horrid murder ; for her majesty
was grieved at the heart, that the reputation of
the king her husband shouki have suffered so
much by that affair. I would not, howerer,
< Anno Dom. 1693. per ex|)ressam initnic-
* tionem, potestatem conceasiaiuB de inonuo
< GuIielmoDuci de Hamilton, alitique, pro ex*
* aminandu et inquircndo dc coede quoraaikB
*• Cognominis de Macdonald aliomnique k
* Glenco. Anno Dom. 1693. et de modo ctde
* methodo Commissionis ejusdrm ; niliiloni-
* nus Inquisitio qiioe^tunc facta erat in prowco-
that Mr. Johnston should know any thing of
your design to publish this : for though toi
know as well as I that his diligence to fcrvr
and obey the queen in this matter, was alvin
judged here to lie one of the chief causes of
our nation's losing that able and honest misii-
ter ; yet he is so nice in point of honour, ibit
he chused rather to be unjast to himself, and to
lie under imputations, than to give any put if
those papers to be published, though freqQCDtlj
urged to it, because he said it would be m^
cent in him, that had once been his majcrtj't
secretary', to do any such thing. Thraoie,
though you are carefully to conceal thiimiUir
fh»m hiui till it be published, yet as soon is it
is, I must pray yon, if you think it proper, to
go and tell him, that I beg liis pardon for niak-
ing this appeal to him, without his leave:
and though 1 may sufTiT in his liood opiiJJM
^ by what 1 have done, yet if this puWiralioo
; may any ways oblige him to do himself, hi»
later master, and his country further justice, by
I telling what he knows more of the matter, I
, shall be the easier under his ilUplcasure. 1^
, had ahno<;i forgot to notice, that the duke d
Aihol, the lord Chancellor, and raarqwis* of
Anandale, all now at London, were roembcK«f
I the commission, w ho made the inclosed report;
' and howsoever scrupulous they may have bfen
I in point of honour, Vi commnuicate any pape"
relating to this matter, they cannot in lionoor
but own that this history is authentic, if my
of the English nobility think fit to inquire ol
them about it : but yo^ii must he careful to Id
none of them know' any thing of your design
to publish it, or which' way you liave this In-
formation ; though if they 'should come ta
know it, 1 chuse rather to incur their dispkt-
sure, by appealing to them, than to omit nj
thing that lies in i.)y power to \ indicate tk
honour and justice of our counti-y."
" Ediuhurph, Nov. 1, 1703."
And atthe end of the Narrative are sulyiiMJ
tlie following Observations :
<< It is said that some of the persom Si p^
a nuiission from king William ; ooneeml
which iv is to be obsened, first, that thetikiB]
«8rj
7-espcctijig the Massacre ofGiatco.
A. D. 1Q95.
[8S2
« tiane ilictae rnfitnirtionis def^cliva omt, nosque 1 * vrris circuir.staiuiis Uci s\nU'»liclrr, crit coiu-
' ctiaud iferpen'kntet, qun«| ^Icthmliis maxinie
* efficax pro plena Iiitoidialioiie accipcndia tic
of a remission is a tacit acknowlc(lcfin|[i^ of the
crime, and takinqf upon tlicin iltc i^iiilt : next,
that any such reniission is niijl aiul void, and
i?ill not defend them, l>ecanse it did nnt proceed
upon letters ofSiainv, nor is there any assitli-
ment made to the nearest of kin ; it beini>f ex-
pressly provided hy the 13G act, par. 3 Jac.
tbe6U), that remissions are null, unless the
party be assithed ; and hy J57 act, par. |3.
Jac/tj. And it is farther to be observed iWmi i hat
act, tiiat albeit respites and remissions had been
formerly granted f'i'r scvrrnl enormous crimes,
jet thedei'endants wore orduiued to be criini-
ually pursued notwithstandinsr of the same :
and the said act is ratiticil by the 173 act,
par. 13, Jac. 6, against the granting of remis-
sions and resjiiics to the committers of murder,
»laii;;hier, acd other atrocious crimes therein
jnuntioneil, where there are not sufficient letters
ofSSlains shewn ; and that no respite or remis-
sion be admitted in judffment, except the same
be compounded with the treasurer, and sub-
scribed by him, at least past his register. And
act 178, It is provided, that no respite or remis-
sion be t^niDted ibr slaus^hter, until the party
skaitheil be first satisfied ; and if any respite or
remission shall happen to be granted before the
Krty grieved bo fir»t satisfied, the same shall
null hy way of exce|ition or reply, without
any further declarator. Thirdly, It is to be
fkbserved, that the parliament havin<>: declared,
that the killing; of the Glenco-men was a
murder under trust ; it is clear by the 51 act,
])ar. 11, Jac. 6, that murder and slaughter
of a person under trust, credit, assurance and
power of the slayer, is treason : so thut by the
said act, these that h.id acces>ion to, or were
any ways airt and part of the sluuifhier of tlie
GJenco-mcu, are guilty of treason."
Of this horrible transaction viirioiis account-^
are in print. It is very patliciically rclalcd
by Gilpin in his Tour w Scotland.
Mr. Lain^ (Hist.of IScotland, vol. l, p. 211)
obfit-rves of it :
*\ The outcry a;rAinst the massacre of Glenco
vas not confined to Scotland ; hut hy the in-
dustry of the Jacobites, it resouiiiied ivit!i e^ery
a^§^vationthrou>>:h Europe. Whelhrjr the itl-
bumau rii>our, or the perfidious execution of
tb6 orders were considered, each part of the
bloody transaction discos ered a deliberate, tr^^a-
cberous, and an im)M)iitic cnu:lty, Irom which
tliekinif himself was not altObCcther exempt.
Instead of the terror nhidi it was meant to in-
spire, the horror and uni verbal cxccraiion which
it excited, rendered the hiivhlaiiders iiTLron-
cileable to his orovernnu^nt, and tin' •jr'ivcni-
ment justly oilious to his sijttjects. I lis frit mis
eudeavoureil, by the plea of inadverlf->:oc and
haste, to tranhfer the blame to his minisUM^ ; and
his ministers were equally earner to vinditait!
the orders as strictly legal | ox ^ auulogous to
VOL. XIIL
* mivsioin luniccfr<:ctum, cunique nobis aliunde
*■ satisf actum ^itdefacnluUibBS»?taptitudincpcr-
letters of tiro and sword, which the privy
council had been accMstor.icd to cfrant. iiut
uhen a second order, signed and c Ksntcrsigned
i)y the kio'^ with such unusual precaution, is
combined with the impunity \^hich his minis-
ters enjoyed, no doubt can remain thiit, however
tlie execution mJ!;^ht exceed his intentions, the
measure wa3 net concerted vviiliouthis know-
l«li;e and previous consent. No enquiry was
made at the time, no punishment was inilicted
afterwards, on the authors of the massacre.
On the contrary, it is asserted that the officers
most active in the execution were preferretl.
The best and perhaps the just explanation of
the transaction is, that William, beset with mi-
nisters inured to the sanguinary iuea.sni-es of
the former govern meut, was betrayed for once
into an net of cruelty inconsistent with his cha-
racter, and with the mild aud merciful tenor of
his reig^n."
That the parliament, which met in Sep-
temlicr WVi, omitted to investis^ate the Mas-
sacre, he ascribes to the detection of Neville
Pain's corrcs^mndf^nce, which at once intimi-
dated the Jacobites from opposition, and indis-
posed the Presbyterians (to whom their esta-
btishment had been recently restored) to thwart
the jjfovernmcnt, w bile the \Facobites were nlot-
tin«c to subvert. And of the measiu'es wiiicli
were in 1695 taken as related in the text con-
cerninyf the massacre, he thus writes :
** On the death of Hamilton and Queens-
berry, the manpiis of Twec^lale was n|ipoiute I
loiiiiuissioner to parliatnent, which wa»iievi.'r
sumuM>ned except to provide supplies. Thu
money voted li»r new levies, hut not appro-
priatLHl in the former session, liad been unj.^ene-
rou-;!y divcriei! to otiicr purpoiffs; and the
li-oops i:i!t-:iil'.'d for internal delvnco were em-
ployed to recruit the retriments abroad. The
nobility were thus disnppitinied of commissioiis
for t!irmselv<;s and then- ft iends. The |)eonlo
were di'v^usicd at \V illiam's supine inattention
to Sootlaud ; and an enquiry into the ma^bacrc
of Gienco r.as.si) Idudly d:?manded, that some
extnu-rdinary concessions wtre rc<;uired from
the crown. An enquiry was no sooner pro-
post?!), than tiio parliumer.t was infonned that
a commission luid hexii issued Vt i(i\e8ti«^ate
the massacre ; and tiianks were rrturned for a
mei^.bure obviously inteufled to supersede a pubiio
«x;imination, and to :H:iven the dHendcrs from
public juftiee. Jiut the result of the enquiry,
by the artifices of tht* ministers to supplant a
riV.'d, was reported to parliament at its repeated
rcquir.t ; and atrcr a clilijjent invinjtigation, the
j^-uiU of ll;*' nl:i^;.sacre was transferred to Dal-
iyoi|ilL». The king was literally tried, and ac-
quitted, by a votc^ that his instructions c«m-
tainetl no warrant fr.r the hlaui^hter ; but the
oifenders, instca'l of being surren>!t'iei! to |>ublie
justice, as the parliaiucut ns^iiested, wtre par»
8L .
88S]
7 WILLIAM IIL Proceedings in the Parliament of Scotland, [88t
' sonarum infra nomiDatanim in fines snpra ex-
* presftos ; sciaiis igitiir nos nominasse et con-
' stituisse tenoi'eqiie pnesentium, nomuiare et
doDcd or preferred. Tlic necessary supplies
and leTies were provided. The episcopal
clergy were permitted, on accepting the oaths
to Gfovemment, to remain exempt from the
jnris<liclion of presbyteries, and 106 who
were persuaded to qualify, retained their linngs
under the protection (»f the king."
In the ** Complete History of Europe, &c."
for the year 1707, in whicli year lord Stair
died, is given an encomiastic account of him ;
to which is appended a defence against ** two
tbio{;;s commonly objected against this earl."
\yiththe first, ««that being^lord advocate to
king James, he had framed a proclamation in
S^tland for a toleration, wherein the king's
absolute and dispensing power was very highly
asserted," the bloody proceedings at Gleuco
have no immediate connection.
'* The other charge against the earl," pro-
ceeds his adrocate, " was that the peremptoriuess
and seycrity of liis lettei-s, when he was se-
cretary of state, was the cause of the bar-
barous massacre of the Glenco men ; a matter
of fact, which, if considered with regard to liie
merit of the persons or their number, was in-
considerable, but has l)ecn very much taken
notice of by all the writers of the Hie of king
William, and others, partly because the offi-
cers entrusted in the execution of a military
rommand, did not only exceed the warrant they
had, but broke in upon the unileniable rules of
hospitality ami hninanity ; and paitly be-
cause the circumstances of that matter have
been greatly agijniviited, to scr\e the turns of
a party for (lisparauincf and perseculinfj the
late earl of Stnir. The matter was carried on
with that heat, as to draw the late kingf >Vi|.
liam directly into question in the parliament of
SScotland, which the enemies to the mvmory
of that jrreat prince have laboured to improve
to his diMidvantage. It were too long to ac-
count fur llittl here : as for the king himself,
it isriiliculoiis i'or menof comm(»n sense to ima-
gine that so greet a prince should have singled
out a low and obscure mean sept of thieves,
who could in no ways either be an object of
his vengeance or jealousy, but as they were
enemies to the gi>vcrnmeut ; uor can any man
of candour and in^t;nuity imagine, that the
earl of .Stair, who hud neither estate, friend-
ship, nor enmity in that country, nor »o much
as knowledge of these persons', and who was
uever noted for crueltv in his temper, shouM
have thirsU d utler the blood of these wretches,
and it is as little conceivable how a commission
under the great seal was directed to no ma-
gistrates, nnr <rouri of judicature, nor to any
j>ei-sons haung power and authority by law, to
enquire into this matter for several years after
it was past : nor how these entnisted w ith this
commission came to tread the Mtry steps of the
court of iuqui^iiiivD, in having taken au oath
< constituere fidelissimos et dilectitiiiiiCM noitroi
* Consanguineos et oinsiliarioe, Joannem mar*
< chionem de Tweddale supremum noMnim
of secresy among tbemselref and having im-
posed it upon tneir clerks ; how they camt
to make use of different tools lo give light ti
that matter (as they pretended) more espiectally
Roman Catholics then in rebellioD, ami Glen-
gary in particular the chief of them, and ma-
nager of^ a great part of the intrigue, who be-
sides his Catliolicity, is and was known to bi
one of the most obstinate enemies to king Wil-
liam's person and government ? Or how tbcst
gentlemen came to adventure to take iesti«
monies concerning the honoor and life of uy
sohject, and much more of any imployed m ha
majesty's service, and yet moat of all, whidi
concerned the king's honour directly, witboil
giving so much as an oppartunity la any bsdj
concerned to see that things were fairly aid
honestly done, or to justify themselves or tlMr
friends. And yet all these drcunstancei at
no less undeniable and certain than Aey in
surprising.
** Wboi these inquisitors bad thus prvpsrel
matters, reports were spread of great iii
strange discoveries, and ttien some men out if
zeal for the king, whom the enemies cf hiift-
vemment would nave loaded with these cniettMi^
moved the parliament that the proceedhigiflf
the commission might belaid before the Hoim^
to which the king's commissioner was pIcsMi
to give very ready compliance. A just defer-
ence to that great assembly forbids too parti-
cular a disquisition of all that past upon that
subject. Thus much is certain ; the thing itself
being horrible, some body was to be bhmied.
The king could not be charged, and indeed it
is undeniable, that though his royal onlen
were given after the breach of a fiacificatioD,
and in very precise terms, yet they did coo-
tain a warrant for mercy acconling to circam-
stances, and it was not possible, that the king
could know that his troops were receive<l hos-
pitably by the people whom that warrant prin-
cipally concerned.
* ^ The blame then must lie either upon tlie se-
cretary, the king's general in Scotland, or the
ofHcer that executed the onler. lo lay it u|)oa
the otHc-er that executed the order, where indeed
it justly lay, ^%as of no cousecpience agaiotf
the earl of Stair, and did not answer soaw
men's desi<,ni : to lay it upon the general «ru
hard, for truly he had been prevailed witb to
furnish the commission with a good many ot
the earl's principal letters and the king's prin-
cipal instructions. And though the dispeosii|
of the mercy, mentioned in the king's order,
did l)elong to the genend, and so the exoM
seemed more naturally to touch him, yet tl»
report of the coiumission licked him clean, !■
the barbarity of the fact consisteil in one d^
cumstance,'\iz. that ofhcers received in hos-
pitality for several days, and kindly enlertMi-
ed by their landloi-ds, fell upon tbem oM-
pectedly aud murdered them. Now the goiBil
S8S3 respecting the Massacre of Glenco.
* Cancellariuni, et Galielmuin Comitem d' Au-
* nmndale, etfideles et tlilectus uostros Consilia-
* rios, JcNumem Domioam Murray, Doin. Ja-
A. D. 1695.
[886
beiog mt Edinburgh, and but lately returned
trom London, the oommissioii presumed that
he was ignorant of the troo|)s being friendly
received in Glencoe.
** It remained that the earl, then master of
Stair, must be guilty ; but seeing what was
done against him was neither by way of pro-
cess nor sentence, and was carried with so
much haste, when he was in Flanders, at-
tending the king, that there was no time leil
for publishing a case in his defence by his
friends. And that a case being printed late
that evening when the vote passed, and some
copies of it being delivered to some members
before the House rose, the earl's brother,
though a member himself, was fain to ask for-
giveness of the House rather than be sent to
prison ; which to a man sickly aud weak as he
was then, was present death, besides abandon-
ing of his friend's just defence. I say then,
that what was done in parliament not being
done judicially, nor by way of legislature, and
during^ the earl's absence, leaves the matter
itiil entire ; and not to enter into a df'tuil of
that whole matter, the earl*8 friends made the
following remarks.
*< 1. That the orders for using military exe-
cution against Glencoe were not so mu«h
as countersigned by the earl of Stair. 8.
That all bis letters, as well tliose which ac-
conapanied the orders, as those that pre-
ceded the military execution, made mention of
the power the general had to shew mercy
according to occasion, and that those clauses
of the earl's letters were omitted^ in the
report of the commission. 3. That the
earl's letter writ alter the execution, or a
few days before it, from L.ondon, could never
be the cause or warrant of any excess ; be-
cause it was impossible in nature, that those
letters could come to the general, much less to
the knowledge of the officers entrusted with the
execution, seeing the post in those places with
the best expedition must require 7 or 8 days
in coming and as much in going. 4. The
wannness expressed in the earl's letters against
Glencoe, being always tempered with a power to
the general to show mercy, coidd not so much as
be me occasion, much less the cause of the ex-
oenea committed : and the indignation expressed
even iu the later letters afler the execution,
was yet excusable, upon the supposition of his
being ignorant of the troops being received
friendly at Glencoe, which was more natural
and easy for the commission to have presumed,
tban iMt the general then at Edenburgh
iboaki have been ignorant of it. 5. Another
gnat circomatance which aggravates the Iwr-
Eaiity committed on GUsncoe, was his taking
the oaths, bnt as to this it is to be observed,
dtber the king, nor any about him, had
lit intimation of it ajt grantinff of the
aid yet npon the soppontioii that
' cobum Stuart, advocatum nostrum, Adamum
' Cockbum de Ormiston nostrum Justinarium
* Clericum, Magistrum Arcbib. Hope de Uan-
they might come in, even after the time
for taking the oaths, and lay down their
arms, there was power for dispensing mercy
both in the order and in the letters that
related to it. And in the next place it was
unjustifiable in the commissioners or inquisitors
concerning the matter of Glencoe, to pretend
that they proceeded for the vindication of the
government, and yet to draw their chief lights
from Glengarry and Keppoch, persons noto-
rionsly disaffected to it. While at the same
time they overlooked the council books, where
they would have found at large the rise and
circumstances of all that matter, and that the
king having entered into a paeiticatiou with the
highlanders, then in arms, on condition that
they should submit and take the oaths by the
first of January 1691-3, and that this pacifi-
cation (which was traversed by diverse iute-
rests well known to some of the inquisitors)
not being likely to hare all the desired effect ;
tiie king put out two very solemn proclama-
tions, intimating that after tlie day none of the
rebells should be received into mercy, but
treated w ith tlie rigours of war ; so that neither
Glencoe noV any of them, had any reason to
complain of unfair dealing. 6. By the story,
as it is pieced together by these inquisitors, it
is very plaia, that old Gfencoe did nut come in
till the end of December, the day indeed tliey
thought fit to oinit for reasons best known to
themselves. When he did come in, he did not
offer himself to any one impowered to tender
the oaths, but old colonel Hill governor of
Inverlocby, who told him, he had no such
power. This governor being the person by
whom any order could be put in execution,
Glencoe according to his cunning, tlioug^t
that if he kept a little correspondence with
him, without directly submitting to the govern-
ment, he should be safe, but to make alt sure,
he was forced to make a step further, and some
days aAer the time went to the sherifPs deputy
of Argyleshire, where lie took and subscribed
the oaths, and got a certificate at the bottom of
the paper, of his having taken them of that
date from the sheriff's deputy which was in-
trusted with himself, and was sent by him,
with his son, to be presented to the privy cimn-
dl. But they haveing [lositive orders to admit
of nobody after the day, the elcrks would not
receive the eerdticate, and these were sufficient
warnings for Glencoe to have made his appli-
cation to the general or to the council, to have
his case represented. But having some de-
pendence upon his intelligence with the gover-
nor of Inverlocby, and as it appears being wil-
ling to play fast and loose, he was content to
keep hb oaths iu his pocket, and to make a
fair appearance of friendship during the winter,
that he might be safe at home till it was time
to go to the field ; nor will tliis subtilty seem
anyways a thing extraordinary to penooa thai
887]
7 WILLIAM III. Proceedings in the Parliament of Scotland^
* keiller, el Dom. GuUel. Ilamiltonecle White-
< law SeaatorcB nostri Collc|{u Justilias, Dom.
* Jacobuni Ogilvy, SoIUcitatorcm nottram, et
are conversant with the fii^ius of that sort of
people. Ju this state of affairs some fo<»t were
sent from tlic garrison of Invcrlochy to quarter
in Glencoe, \%hich does not appear to liave
been by any order. These troops Glencoe
feceire«l with ail tiie appearances ot friendship,
and the officer linvinf^ received his orders dur-
ing the time he was there entertained, had not
resolution or honesty enough either to declare
fair war, or lay down his commission, rather
than imbrue his hands in the blood of his land-
lord and his children, but chose to take the op-
portunity of an order given by persons wholly
Ignorant of the hospitality and submission of
these unhappy wretches, and executed it in a
wav that is fur ever unjustifiable, in this,
and this onlv, consisted the atrocity of that
matter, and liuil the inquiry been directed to
find out tniiy where the matter lay, tbe officers
had r*:ceiveil < omli^ii punishment. It is true,
tlie report of the commission does charge these
officei-s for their behaviour, but as the report
bore hard in Inyiii;; the blame where it was
not, the king suspoctttl the sincerity of the
whole, and nothing followed upon it.
Lastly, tlio ke(*«mess and asperity that ap-
pears in the f.'uil's letters, proceeded from a
cause very ditlirent from what his ene-
mies have endeavoured (o possess tlie world of;
and the truth ol' it is, hu had pretty good rea-
sons to wish, ilu't if the hi;;h landers should
break the pacilicution, and draw u|)on a whole
country llic severity and rnicUies of war, it
sliould' rather lijht upon an ohsoure small sopt
oftennantr], curisi<ierablc fctr nothing but their
noted robbci'ics at id murders, who being treated
with the ritrouis oi' war liiiijht prorare an easy
siibuiiKsioi) iVoiii the rt-st. An. I the carl was
the more ccnict rncd, bucamc he was thought
to have a coiisitb rable part in a.tvisini; the pa-
cification, whcreoy tiit^ broken and desperate
men in the hiubUnds, s^iuie whereof were in
reheliioii. cvtn heiore k\wr James went away,
and had defeated a )»arty of his troops, ulio
were comir.aiidvd to assi^t in e.\rcuting of a
sentence upon a civil contract, mi^ht lie brought
in to be g(>oil siii'ji.4ts, und to ha\e lib<?riy and
properly in ti;i.r native coitolry : but for this
r.oun>el ti.c cirl wa-i vtrv liii-riiSv bbunetl by
tlie I ncniUs of the goveniiJit.U, In-eanse it iii-
dtod broke Jbeir inurist. . r.oi" li:i\c tiiey e\er
madi* i.vy coiisiderable app^siKisicc since ; and
b}' olh;;rs, because the ti:ln'/ v\as nut done by
then:. And these people did not fii.l to solicit
the late king to seveii-ics, and to tlivparavrcthe
pacification, as beino- ^cry «lislionom'abIe; and
npiMi li'atoccnsiup ll»c merits of (ikncoe were
* Adamum Drummond da Mcggim (qa
' quinque Numerus erit legitimui, «c cum po-
' testate lis Clericum suum eiigendi) CorniniF
strange, that ever the kioff or hii miiiislcn
should have been suspected aecsessary ta ii
mean a cruelty."
Sir John Dairy mple in bii relation of Slsir,
says, tliat the scheme for cutting off by tin
means of «* Letters of fire and sword, an io-
human but illegal weapon," all the highhal
rebels who should not take the oaths wilkia
the time prescribed, was suggested by M
Breadalbane, adopted by Dairy mple, and «-
sented to by the king. Aad he adds^ tkil
«' Glenco with all his clan was peculiariy ob-
noxious to lord Breadalbane, because there hii
been frequent wars between their people. And
sir John Dairy m pic thought that mercv woaU ^
he thrown away upon them, because they hm
been in the irreclaimable habit of making b-
cursions into the low countries for pluBder,
and because he hail himself obtained a psrdoi j
for them from king William, when one of Iht
tribe having discovered his accomplices io a
crime, the rest had tied him to a tre^ u4
every man in the tribe had stabbed him with i
dnrk, Glenco the chieflain giving the M
blow." I perceive not that Dairy mple itftn
to any distmct authorities ibr this circauMtiB-
tial account, the latter part of which is iobk-
what mdistinctly expressed.
Burnet states that the proposition of nilj"
tary execution- u|)on the Glenco men crip-
nated fi-om Breadalbane, and that the ir-
vere order concerning the separation of that
clan from the rest of the highlanders, mis
signed by the king, without any inqni^
I about it, ** for he was t<io apt to sign |iapcif
I in a hurry without examining the impor-
I tance of them;" the consequence of his«nf-
I fering that sort of business to accumulate, till
it became necessary to disjiatch a great d«l
I in a very little time. And he refers the king^
permittm;: the matter to esca|>e public iovnli-
gation to the o|ieration of his tenderness upon
' discovering how many had participate<l in the
transaction.
In Dalrymple's Appendix to part 9, book 6,
he has inserted some curious documents reli-
tive to the treaty with the Highlanders, and
, (jihcr proceeilings about this time respcctiw;
■ tbeni. The fulFowing arc those most neiily
I councctetl \^ iih Glenco :
i
Secretary Slair to Lot d Breadalbane.
My lord ; London, Dec. 3, IGOI.
** Vours <if the ICth |»ast was very uneaqf 8
it is a little qualified by that of the 19tb^
set iif.rtli to tbe lull, and a certain pvi-son was ' know not by what I was moved to write toy*
i-uA comnii^vif!>'T to manage that nftair at \ eitjht days at^o, as if I had known whstlfc^
court, who W.IN witness at all the deliberations i letters brought me ; and though what I WjJ
before tbe iiir.iinry ordor was drawn up. then was only to hasten raAtters, the hjseifcf
To concluiie, it is plain to any man who
•oosiders the matter, that it must appear very
being of ill wnsequence, yet I never L^ ^
there was daogtrr in the miacarryiiif tf Jl i
m
respecting the Massacre ofGkneo.
A. D. 1695.
[890
lioDarios noftros, pro capiendft precogDitione
^ Inquisitioiieiii faciendo de Ctede pnedicta,
per quoa et qaomodo, et per quam Coluratam
1 1 was desirous of your return, apoo the
MsluDg of your ,De|^iatioo ; but without
lat, or the having prevailed with one man, is
hat I never wish to see. I am convinced it is
either your fault, nor can any prejudice arise
> their majesties service by the change of
Mtsures, bat only ruin to the Hit^hlanders ;
Qt yet at the present settlement it would do
'ourself and yonr friends no advantage. That
lOsoD you suspect to have blown np the
li^Leans. hath great access, and wanUj nothing
Mt such an occasion to introduce him, and to
■akc him in a manner necessary to do what
yoa cannot. I doubt not all will come right ;
bat though it is nectfssary yon do seem to come
Utber, that tliey m»y nie, yet you had not
bnt, ID my opinion, leave it ; and hei-e yuu can-
Bitbe belure our sctilement^s 1 ap[irehend, is
iiicaiiiness. I shall not repeat my thoughts
•f vour doircd Gouiin; I perceive half sense
will play a double game, but it requires solidity
li cmbnce an opportunity which to him will
le lost tor ever ; and th<* (ram'son of Inverlocliy
■ litde worih, if he can cither sleep in his own
(Mftds, or if be ever be master there. I rcfient
Mthiog uf the plan ; but what account can be
fiten why Argyle should lie forced to part with
Anjoamurchan, to which Lochiel hath no more
PRInice than I ? yuu cannot believe with u hat
Mferency the king heard this matter, which
ti alarm and surprise us all, and confirme<l
the bold aswrtioiis of others against you. 1
hops you will be able t« document sir E wen's
Ml Mr. Jolm >1 'Lean's commissions, which
■n nwesbary for your vindication. Lieut, col.
HI, deputy governor of Inverlocliy, is a
man, you may make use of him. I
i be ghid to tind, bt^bre you get any |>osi-
iirconJer, that your business is done, fur shortly
*«vill conclude a resolution for the winter
CMnign. I do not i'ait to take notice of the
huness of your offer t<i assist. I think the
ciu Donnell must be rooteil out, and Liichiel.
We the M Jicans to Argyll. But before this,
Um and Argyll's regiment, with two more,
^•irid have been gone to Fbiuders. Nr»w uil
Mopi, and no more money from £nir|and tu
cttttiaia them. God knows whether the
ISittOO/. sterling had been better employed to
«tHe the Highlands, or to ravage thein; but
jce we will make them desiierate, i think we
■ouM root them out before they can ;;ct that
Jjdp they de|)end upon. Their doing, nfier
*0);gKK. J. ullowaiire, is wortie than their
ohnaacy ; lur these who lay down arms at his
ttmnand, will take them up by his warrant.
Bennired no papist will lie exe.'iipted from this
^uf allegiance; and in Ireland they nuist
Jo it, by act of parliamint now mude, since
iKupremacy is out of it. You may nsjiure
^•■seff, in our settleu>ent of gorcrninent, you
"2*"t fbrgot by yonr friends, though I imist
<■ 5M wRw are again emboMened, who hail
* Attthoritatem commissa erat, atqne in ordine
' ad detectionem ejusdem cum poiestate dictis
* Commissionariis, reqiiireadi omnia Warranta
given over to object against yoi:r h^ing' liV
sumed. My dear lord, adieu.
Secretary Stair to Lord Brtadalbunc.
My lord, London, Dec. 3, 1691.
<• The last post brout;ht Tarbat letters from
Glengarry, or from his lady, and Korry upon a
message. Glengarry hail sent to him to £din-
burgli. This haih furnished him with oppor-
tunity to discourse the king on all these matters.
He tells me he hath vindicated you ; only <he
share that the McDonalds get is* too little, and
unequal to your good cousins, (really that's
true) and he would have the money given to
Glengarry, and leave Argyll and him to deal
for the plea. He thought his share had only
been 1,000/. sterling. I have s;itisficd the king
in these (xunts, that his share is 1,500/. ster-
ling, and that he nor none of them can get Che
money, if Argyll consent not ; tor that destroy!
all that in gt>od in the settlement, which is, to
take away grounds of hereditary fiends : to bo
brief, I w'ill assure yon that I shall never con-
sent any body's meddling bhall be so much re-
SfDrded * as to get any of }our terms altered,
by the next 1 expect to hear either these
peo|de are come to your hand, or else your
scheme for mauling iheni ; for it will not delay.
On the next week the <«liiiH.'rs w ill be dispatched
from this, with instructions to (ufiirrison Inver-
t;arry,and J)iicliait'sre;.iment will join Leven's,
uhich will be force enough; they will have
petards and s<»m« rannon. I am not changed
as to the ex|iei1>ency of doing things by the
easiest means, and at Irisiirr, iuit the madness
of these people, and tlioir ungratefulness to
you, makes me plainly sh; there is no reckon-
ing on them ; hut dclenda etc Carthago. Yet
who have accepted, and do take the oaths, i^ill
be SHte, biu de^r\ ir no kiudnes.^ ; and even in
that case, there must be hosiajis of their
nearest relations, tor there is i o regarding
men's woids whom their inierest cannot oblige.
Menzies, Glengarry, and all of tlieiii, have
written letters, unil taken pains to nuke it be-
lieved, that all you did %t:is i\h- the iuterest of
king James. Therefore l(Hik on, ;ind you shall
be satistied of your reven;j>e. Adieu.
Lord BiUi'U Hamilton to the Duke,
London, 9th Jan. 1692.
*' I know not if the ni'us of tiie Highlandeni
I taking the oaths will put a titop to the marching
' of the ti oops that were designed for that |iur-
I pose, but I btrlieie it will not ; but that the or •
' ders for their campaign w ill still go on.
I
Propo$al4 concerning th* Ilightandert^ by lord
Brtadattnine,
** The Ir.st opinion given to your majesty,
<ronceniiiig tlii> setiliu'* of the Highlanders,
having had gomi success, by their submittuir
to your government, laying down aniM^ «a
Ml]
7 WILUAM lit PrMmJings in ike Partmmtfd nf Sc^thnd^
* ieij ftireelioncAj i\\%m eaten (is cor>ee*4« fuere,
*ili ra ftE)l«dku Negtrtium liBbuere; atqwe
taking til a oBlh of aJle£^tanL'« ; it remains itow
to |lit»poio to jrour majesty, bovr to make tbeni
UMful ami serviceable tu ^loii^ aud to Uke up
wu for your Winjcsty In case of any insitrrec-
linn fit home, ^x inrasion from abroad, or that
J^imr majesty ibink it tit lo u»e some of tbcoi in
breif a parti.
** lit, I'be law iibltg&i rhe tiaUoTi to rite in
ami« w\wM required r and tn ooittiaue in arms
forty ilayi.
** ^d^ Tliat' your fnaje«ty by Tirtae of ibm
faw, ortiatii alf tbe btg^hia^id laridlorxl^ and cbit^t-
taiajilo bave sucb a projjoriiOfl of men nsadykms
iheir oatattMi and interest mtiv eaflily faiae'and
providflf without making Ibi* lety tno h^sk^y iW
tbcoi, ffliicb lery may be^ acci>rding to tl*e
calciilatinn made tbereof, four tbouaand good
and elf^etire men.
<* .ad, Tb^t tbese men, both officers and sni *
dierSf be enrnUed, and tbett^by ready Ig b« cat-
led for wbro rtqnired. And to i1>at end,
*'*' 4ib, Tbitt yonr mstjcsiy ^i^c commLsslon
to «ojne prtndpnil man iti tbe big'bland^, to ba?e
the cliarge of raiding, eurolliiii^, and bringing
Ihem In Ibe fi^ld, and placing of t\i inlerior
ofQoun orer th<rmf accurdiu^ to Ibe q umber
Ibat every tribe seodii out.
*^ ^lb| Thai Ittu^ principal person bave the
pay of a gejieral offieer, but tbal oajy when be
ifl employ fisd, t4i iiefray bi« ejcjience \ who is to
rec*»ive bis orders from yonr tnajesity, or your
govcfrnmentH, or from tbe cotutiiaiider iti chief
l^f your standing forces in tliat kingdom.
^' 6tb, Tiiat Locb^eal, in r^peci of bii ex-
perience aD') akillf and Iil§ interest in the other
daw besides bis oif^Uf may have the neict com-
mand 01 er this mibtia, and have the pay of a
eolooul v^hiW be 'v& eitijduyed^ in regard be is
ambitions lo serve your majesty i aitd be is a
proteilant.
** 7th» That there b^ forty captains setorer
the fbur tboysaad, uf sucb as every trilie may
bare one of ibeir owo to commaod ibem, and
these to bave a gratuity at Ibeir return liome,
alier tliey ai^ dia^mistted, aa they bi^imve ibeto-
i«lr^, and do k«»p their men in good disci <
pbne I and tbis gratuity to be bestow ei I by ibe
adrice of your majesty'^ goremmen^ the com-
maoderin thief of yovirtbrces, and of the per-
son wbo has the principal command uf the
lugidandcfs. Tbiit as soon a^^ your majesty
settJ^ji yonr gov eminent of that kingdom ibese
ttvo cdfiiuii^iiiDni^ he given, that I bey may imme-
iliatdy there rfter go akiul tbe eurolhog of the
men, accordinj^ to tbe prnportiima to be charged
by nrockimationou every Jaiidiord and cbietUin,
to ne ready nben calJed for.
^* 8lh, As this establisbment will enconrage
Ibe high land erji to be faithful, and serve your
majesiy, being commanded by persons of loeoa-
ieives, and in vrhom your majest) may con-
ftde I HO it wiU esEtremely discourage such aa
design to giv« disturbance^ to tbe peace of lb at
' eiiam Testes prnul ueec«Mrittm mte
* *i*e per eonim Jurameuta, sivc De
^ et tunc postea dicti Commisstoiiarii mihtf
kingdom, and io embarrass your g^tetmoKit
there, when tbe^ iind that your majcily \m
engaged a formidable for<^' of bigfalaato
ready to fmtl on them, contrary to tbeif ei*i»
Utton, and endeavours of keeping Ihem fpoa
coming in.
** 9t1i, Your majesty has the»e f<>rc«ft wnbe4 ^
any obargei except for a tew oncers, and tl4'
only when em ployed ^ and that but for a ihtfl^
time« wbicb will draciiss aoy eommoiitkn aa
be in that nation ; and it may be aswfted, SM
there cannot be better militia men than t^y w^
*^ lOlb, Your majeity baj» ti»l a fiio4 bllai
kingdom t nrtr can have, to maintain fthore Ibml
tbousand sUnding forces, whicb arc ao few^tbit ]
it vi a great encouragement for tA\ ill dciim
especially in your majesty's ab*enee. Rmtiui
additioo of four lUonsaod highlanders wdl ail«J
tbe case exciiedingly, will ^treni^^alien your|roj|
r ern ment, encou rage you r standi 1 1 g 4 or cm, i
disap|H)int your enemies ; for thpy may bii
ordered as to be ready lo march oti few iikf
adrertiaementy
^* Uih, It will be fit there be a majoc or I
in eotiftaid pay^ for attending and looking i
these forcetp and lo serve a.^ adjutaiita Ivr i
ing, bringing ibern to the field, and
them from prejudicing the countries^
*^ i2tb, lliatin purs nance of this dfli|
and that the dtsconiented disaffected partiat i
that kingdom may see thai your majesty wtll Inut
and emjiloy the high landers, (if these ibrce jwi
to it) your tn^jesly will be pleased to djspaick
Loebziel home, contented, and obliged to ^oor
majesty's royal bounty: it is but a smalUuia
be pretends^ and your majesty will find it very
well bestowed.
^M3tb, In ease your majesty, at anv tiim^
tbink it tit to employ a regiment of highlandlit
abroad, they may be detacbt^d out of this M|
of men ; and in that caae^ it is humbly odena
to your majesty, that Ibey be allowcMl to i0l
Ibeir own apparel, and ibeir own arms, and H
be disciplined in their own fashion, and tofce
commanded b^ prsons having tlieir Janguifc,
and who have mtere^t with tbem^
Lki ojChiiftmm ta mhUh the PrQpoi&k rtWi.
Theearlof Seafort, - -
The viscount of Tartiatt -
The lord Loviti, - - -
The earl of Sutherland, -
The lord Khea, - - -
Tbe laird of Ballingoun,
Tbe laird of Fouls, - -
Tbe laird of ^tragla^e, -
Tbe laird of tilenmoriston,
Th e lai rd of M ' 1 ntusbt
M^Fbersou of Clunie,
The laird of Kilratork, -
The laird of Grant, ~ -
Tbe laird of Balmdakiclit
- - »
- - t»
- - 101
- * m
- ^ m
. - 30
w
93J
reifecting the Massacre o/Glenco.
A. I). 1695.
[894
tnnsmitteDl verum statum rei antedicte, una
cum Probationibus et Tettimoniis coram ipsis
adducendts, ati post debitam et plenam infor-
mationciD, neceaiaarias Directiones, eatenus
ooncedcmns prout nobis ooDgnium Tidebitur.
In cQJm Rei Testimonium, pres^ntibus, magr.
nam Sisrillum nostrum appendi raandavimus.
' Apod Aniam nostram tie Kensinf^on, yigesi-
' mo none die Mensis Aprilis, Anno Domini,
Tbe duke of Gordon, 300
llieearl of Mar, 300
TkmaniiiisofAtholl, 300
tbe laird of Ashintullie, .... SO
Tin laird of Weem, 50
TIk laiitl of Gamtully, 50
llelairdofStrowan, 30
1W earl of Perth, 150
Tlw earl of Murray, - 100
n« earl of Mouteatb, 100
fkt marquis of Montrose, .... 150
IW taint of Liiss, SO
k laird of Maciarlane, ..... 30
"heearlof Argyle, 500
\it earl of Breadalbaue, .... 250
b« laird of Calder, ...... lOO
be lain) of N« Lane, 100
h« laird of Locheal, 150
he emplane of Clanronald, • . • . lOO
ir Donald M'Donald, of Fleat, - - 100
li« laird of M'Leod, 100
he laird of Glenj^ry, ..... lOO
he laird of M*Finzony, .... 30
[^Donald of Keppocfa, 50
h« laird of Appme, ..... 50
h« tutor of Appine, ..... so
h« laird of Loclibouy, ..... so
^ of ike Highland Chieftain^ $ CommUsiom
to treat,
««1 €>ol. NacDooell,of Keppoch, doth here-
f , in my own name, and in name of Ranald
I'DoneD of Insh, Ronald M'Donall of Fronts,
^tkl McDonald Coldonarffe, £neas M*Do-
A of Bohurtmy, £neas M*Donell of Kill-
jihooatt, JEneas M*Donell of Tulloch, Alex.
t^Donell of In?eroy , Neil Keiine<ly of Kearu-
iftn, Alex. M'DonellofTinioderish, and the
m of my kinsmen and friends, earnestly de-
re and request, impower and commissionate
le right Don. John earl of Breadalbane, to
felt ami conclude with the present govem-
iiBt, ibr Drocnring to me and my foresaids
imda sucli lending and concessions as be may
hiaiD from tbem; hereby promissing, upon
ijr oath, in my own name, and for them, that
•ad the}' shall stand and adhere to such terms
t bis lofuship will procure for me and them.
« witness whereof I have written and sealt
bir presents, the twenty- fourth of June, 1691.
•t Coll. Macdo2uld."
^ of ike Highland Chuflain^i Obligations to
keep I'tace.
•• 1 CoU. UackDondlof Keppoch doth for
ifMU; and OB behalf of RmMdd Mwkdooald
* Millesimo Sexccutesimo Nona(;^esinio quinto
* Annoque Regni nostri Septimo.
< Per Signaturam Manu S. D. N. Regis su^
* perscriptain.
« Written to the Great Seal and Reg. May
< 20, 1695. « Don. Raxnald, Depnt.
* Sealed at Edinbiiigh, May SO, 1695.
^Jo. DiCKSONB.'
of Insh, Ronald M'Donald of Fensett, Alex.
M<Donell of luTeroy, Donald M'Donell of
Cleonaige, iEneas M'Donell of Bohuntine^
£ncas M*DoneU of Killiehonat, £neas Mao
Donell of Tulliocb, Neil Kennedie of Leonur-
hane-more, Alex. Kennedie of Leoruthan-beig,
Alex. Mac Donell of Firrnadross, £neas Mac
Donell of Auchnacoichine, and all the rest of
my kinsmen, friendfl, and followers, engage,
on ray faith and word, that I and they shall
submit to the present govemment, live peace-
ably, and commit no acts of hostility nor de-
predations, norjoin with any forces from abroad,
or within the country, to commit any such acta*
until the first day of September next, providing
that such proposals and terms as shall be made
by the carl of Breadalbine to tbe present go-
vernment be granted to me and those above-
mentioned, against the foresaid day : providing
also, that no act of hostility or depredations be
committed against me, or any of my said friends
or kinsmen, before the abovesaid first day of
September next. To these conditions I do
hereby oblige myself to stand and adhere: In
witness whereof I have written and subscribed
these presents, the S4th of June, 1691.
" Coll. Mackdonald.'*
" There is a tradition, whether true or not
I know not, that when lord Notlingham after-
wards wrote to tord Breadalbane to account for
tbe 13,000/. which had been given him to be
divided among the Highlanders, he answered
the letter in these wonu : < My lord, the High-
* lands are quiet: the money is spent: and
< this is the best way of accounting between
'friends.'"
But, according to Burnet, Breadalbane hsd
honestly brougrht back the money.
The following anecdote is highly creditable
to human nature :
'* During the rebellion, in the year 1745,
the clan ot Glenco were quartered near the
house of lord Stair. The Pretender being afraid
they would remember, that the warrant fur the
massacre of their clan had been sif^ned by the
earl's father, sent a guard to protect the house.
The clan quitted the rebel army, and were re-
turning home: the Pretender sent to know
their reason. Their answer was, that they had
been affronted ; and when asked what tbe af-
front was, they said, • the greatest of any ; for
* they had been suspected of being capable of
' visiting the injuries of the father upon the in-
* noceat a|id brave son.' "
fe^
7Wm4JM.m.
«Bij
< WU^mj by ttie^ee of God, kinji; oFGreat
^^Britiiii, &^. Til alj good mm to whom these
^ 4 liftve taken itttn cotisiiTeralitin. that thoit|gf h m
* the }^ear of our Loi^l 160d» we gare paweff by
< expcss iostructious, to M itlintu dnk'e of Ha-
* mihoii dcc^aseil.-aod others, to oxaiBtne and
5 Lnquire into th« iUug^btfir of eeriaiQ people of
< the rtameof Macdoaald and oilier* la Ulaoeo,
't ID the year t^^S^ and into ibe way and mao-
^ ner ht^iv the same waa comiuitteft, yH net er-
« the less, tht* iaqutry then made. inirsuaHt to
f the sM mstmetiMns, wat^d^texrlive ; aod con-
« aiderioif likewise, thai ihe mo»t efftrenjal me*
f thod fur recelvioj^ fiiti b^briuaiLoo of tbe true
f cifciimHtaiices of the matter atbresard^ most be
f by a commission tfi tliat effect ; and heiog'
f very well satisfied of the abdirie^ aud fiioe^^
i of the petTiOrts uader^ named, for lh« eads be-
* tbre expressed i know ^e therefore that we
* have named and csonstimttd, and by the te*
0f am of these presents do name and etmstitute^
' our right trttsty and well beloveil coufiiti nmi
* eounscllor, John iiiarquis ©f TwHldftlt.\ our
* hig-li- chancellor, ami \Villiam «arl tif Annan*
*4laV and our trusty mid hclovi^d cotmjiellcirs,
*4ilpllll brd Murray , air James HttJiirt oor ad*
l^rramte, ^dam CockburaorOrmiston oorjos*
I tree clerk, Mr. Archib»kl Hope ot RaokeiUtr,
i tgd fir Willrain Hanulton ol' Whtti'law, se-
4 nmtors of our college of ji}«tice, sir James
I Oglfvy our m>Licitor> and Adam Drummond of
« Megg-inii, (uf whom ftve fibail t^ a fpiorutu,
< aud granting ibem power to cUu^ their own
* clerk) ottr <:0mmisaiQner^i to take preL>o^^ni*
■ tioi} and make enquiry into the slaughter
< aforetaid^ by whom and how, and by %¥hat
' colour of autbofity the iame was comniiltesd :
< and iti ordej" to tbe discovery of the iamt^,
* we ffire power to tbe said eomnns^ioners t<v
> lend for all warrants and directions ypraoied
f lor that eiid : and likewise to eacamlne all per-
« sons that bad aoy hand in the btt!iine!t9 atbre-
I (aid, and likewmc fo examine witnessea nn
* shall. be found necessary, either upon ootli 'or
^de^larailoo ; and atkrwardv the said commis-
' sioners shall tranmtit to us ibe true state of
* tbe matter aforesaid » togeilier with tbe proofs
' * aod eTideuce that shall be brou^t hetbre tberrtt
, * that after dtie and full inibrujalion, >ve may
* give* such dtrectiona thereupoo^ as to n% shall
^ scti^i meet and tiece«>&ary« In testimony
*„U^bereof, He bate cotiimajmi'd our Orcat Jfeil
* to be appended to these prescint^^ Given at
* our court at Keo^sington, the *i9iii day of
* 4prilr lC96f a&dotour reii^ntbefieventh.
* Snperacribed by tbe ai^iaiure of tbe hand>
wilting of our mo«t tierefie lord thi^ kioef.
* Wrttteo to tbe Great ^al, and registered
« tliedOtb day of May, 1695*
# »DoK* Rai(*u», DepuL*
* 9eal«d at Edluburgh, May 20, 1695,
^ JOi Jjt€itsa?t£/
Ujkon the 2%d of May ^ 10(^5, tli» c<mwk
was read in parliameut, and the Hcmie i
Htm, oin. Thai his majei|tA 'a high cominin
^r transmit tbe bumble thaaks of thfi lut
metit to bis Jlaj^ty, for ordpjrmgr an lcm^
into ttiat matter, whereby ibe honour and
tice of tbe natiou luigbt be Tiadlcated.
It being' urged thai the commiasioail
proofed with dili^enee, a& being a nationdt i
eern, and. that tlie discovery l»e made knoi*
tbe House betore its adjournment ; bii n
assureii tht^mt that he doubled mit of bil I
j«»ty'^ giving saiisfuctjun to hi» parlianiri
ttiat polut, aqd that bef^rc^ they parted.
Tbe comffiissiouers procred4:tl aeeordinf
order, and made tl>e fortowiog lieport :
Report of the Commiwioit fjiv^ti by ha i
jesty^ for intniiring inrto ih»j slao^tn
the men of Glen co^, subscribed at UtAp
house the !?aih diiy o1 Jfinet 10^3*
John marquis of Tweddiil«, lowl h^b rk
cpllor of ^cotWd, William earl of Anaaa^
Jobii lord Murray T sir Jamet Niuatt liia s
j**s.ty 'aadvfjcate, idam Cockbiirn of Ofuoiasi
lord justice clerk, sir Archibald llii^ie of Jk
kdlkr, and dr William (Lau^duiu ol VVLM
lw(» of the senators of ibe colkge of joilii^
Jtimei tlgilvy bin soaje^ty'* solicjlor, aad Ai
Urummond of Mef^ginti, c(itmiii^i>nGn i
poinied by his ma^ty, by his^ comiatd
uM<ler tbe great ie^d vl the date tbe '^9^
April la^t past, to make inquiry, anil t/a is
trkl and precuguuijuu about tb? ala(Agblii*
several pei^ons of tbe tiirnam_o of Blac^ofti
aud otheri m Glencb, im the ytar \ti^%
whom and in what manuert on J by >»but|)
tpoded aiUburity ibe samo wzin commilN* ^
power to call for alt warranU aod dire^
given in that matter ; aa* also to exaajiitf
persons who had a baud Iberein, nifti ^1
witnri^seH they should find necessary, fill
upon oath or declaration, tind fo report 10 I
majr^ty tbe true slate of the si^id nikitt«f, W
the efidence and tesflfnotjies to hu acldofedl
lure them, as the iiaid commlisiou mc*ie ^i]
bears; baiiogaitst and qnalltled tbemtdlfii
taking the natb of nU<^i»iice and mxjp9i
Gonfbrm fo the aet of parhaLoent^ ftitb 1
oath de Fideli^ a<i iis^ ti in sucb caf«s> '
according to the porcr griveu to them* ^
Mr. Alexander Monro of Beircrolf lo bell
i terk ; and be hariuif ako qtij^liified bi^
as above s ilnv procie£*J into ihe an id iit^oi
to cnll for all w;»rrtititE aod dire
siicb persons as wime^iisrs, ihatmre
in tbe said matter ; tu>d having c4
tiiresoid warrants and diit^cliotw
fore them, and taken tJje oaiL% J
of I be Vituessf?! underoarotHl; they
submission lay tbe repikrt of tb0 Wl
very made by them fe^fore his !*•*
f>rderibtlo w iug. A o4, lifvl^ tiwa^
preceded the said iiatiglitef^ Seoli
respecting the Massacre of Glenco*
matter of fuctf with the proofs nni) eviifencc
^a*" " " *-^n and in what manner the same was
^kf Thirdly, nf the warrants and
^ki — ,.. . Lliat either really were, or were pre-
^■ptled for the committing it. And, I^rIIj,
Hvhe coromissioners humbic opinion of the triie
^state and Account of that whole business.
The things to be remarked prcredincj' the
lid slaufi^hter, were, that it is certain that the
|nl« of Gteiico and Auchintrinlen, and their
llower^, were in the insurrection and rebel-
»n made by some of the highlnnd olanfi» under
' command lirst of the viscount of Duodee^
|ld then of innjor pencral Buchan in the years
B9 and 1690. This is acknowledged by all.
tti when the earl of Brai<la!hiii callf^d the
ads of I he clans, and met with ibem in
AuchalUtder in Jtily 1091. in order to a cessa-
ou, the dec^ascit Alrxander IIIacdoii;ild of
CO wus tb(c>re with Gleno'ary, sir Johti
ene ftnd4Jihcrs, and agreed to the cessa-
^11, aj» it !!« abo acknowledged : But the de-
B»et\ Glenco*fl two sons, wlio were at that
r with their father in the toii^n of Auchalla*
depone, ihat they heard that the earl of
udAlbin did at that time quarrel with the dc-
Gleoco abtint some cows that the earl
diftii Were stolen from his men by G3tiico*s
and that though ihey were not present
' the words, ypt their father lotd theni of
iteoge. And the two sons, with Ro-
licooiiald, md welter in Glenco, and
Macdonald in Innern^en m Gienco,
de|»one, that they heard the deceased
» sity, that the earl of Braidalbrn at the
Ung ot Aiichallader tlireatened to do him
^iief, and that he feared a tntschief from
( BO much as from the carl ot Bra Ida I -
kftieir depositiotntf at the letter A m the
jtn bean. And AlcxaniJer i^Iacflnnald,
nd «ott to th« deceased Glcuco, doth farther
depou«, that he hntli otten heard from bts fatiier
Jtod others, that there had been in former limes
^^od Mnixt Jirradalbin's family and their
^Bko, as his deposition at the s;ime*mark bears.
Hud here the coit]fnts5ioners cannot but take
tice of n hat hath occurred to ihem in two
en from secretary Stair to lieutenant colo-
Hamiltoa, one of the 1st, and another of
Sd of Deceriiber, lti91, wherein he cjc-
arcBes hii; resentment from the marring of ihe
DVSiiiD that siiauld ha?e been betwixt the earl
of Braidalbiu Qi\d the hii^hlanders to a very
It height, charipn^ some tor their despite
*^-Ahun, nn if it had been the only hin-
of that settlement : Whence tie goes
^' in his of the 3d of December to say, that
the goreniment cannot oblige them, it is
1 to ruin some of them to weaketi and
I the rest, and that the Macdoualds will
[ in this net ^ and, in effect, seems even from
Ihat time^ iihich was almost a tiioolh before
tht miring of the kuiy^s indemnity, to project
wkth heu tenant colonel Ilamiltoa that some of
tbem should b« rooted out and destroyed. His
■lajtcsty^s proclamation of indemnity was pub*
mt& m August 1591> oSemig a free iDdem-
nity and pardon to all the hipfblanders who had
been in arms, upon their cominif in and takin«j
the oath of aik^Er'fioce betwixt tnai and the Jst
of Jaimary thereafter : And in otupliance
with the proclamation, the dti caserl Gfencogoes
about the end nf Decrmber 1691, to colonel
Hill^ fiforernor of Fort William at Inverlochie,
ami tiesired the colnnel to minister to him ihe.
oath of aMc£jian«::e, that he mi^ht htive the kind's
indemnity. Bnt cotonel Hill in his dpjiositiony
marked witli the letter Bt doth farther depone,
that he hastened liim away all he could, and
pure him a letter to Ardkinlas to i-ec^ive him as
a lost Rheep ; and the colonel produces Ard*
kinlas's answer to that letter, dated the 9lh of
January, 1691, l>eimngf, that lie had eudta-
voured to receive the Cfreat lost sheep (tienco,
and that GIfdco had untJertaken to brin^ in all
his friends and followers, as the privy council
should order: and Ardkinlas further writes,
tliiit he was sendiag- to Edinburgh, that Glenco,
thonf;h tie had mistaken in coming to colonel
f^lili to take the oath of alte^ance, mi^ht yet
be welcome^ and that thereafter the colonel
should take care that Glenco's friends and fol-
lowers rria)' not sutler, till the kmiif and coun*
eil's pleasure be known, as the said letter ouurk*
e*t oil tlie b^ck ujth the letter B, bears. And
Gicnco^s two sons above nameil do depone in
ihc same manner, that their father went about
the end of JJecember to colonel Hill, to take
the oatlt of alle^-ionce ', but hodmg his mistake^
and gettiog^ the colonel's letter to Ardkinlas, f
hiLsled to Jnverary av soon as he could for T
l>ad way and weather, and did not so much i
1^0 to his own hou^ie in his way lo Inverary^j
thoujorh he pa^st within half a mde of it, as bot^l
their depositions al the letter C bears, AuMn
John Macdtjnald^ the eldest sod, depones far4 1
(her at the same mark, that his father waffj
taken in his way by capuin Drummond at^l
Barkaldin, and detained S4 hourn.
8ir Colin Campbel of Ardkinlas, shcriff-de*!
puty of Argile, depones, that the deceaaeAj
Glencocame to Inverary about the beginnitig]
of ianunry, 16912, with a letter from cotooa |
Hill to the etfcct above mentioned, and was ]
three days there before Ardkinlas could
thither, because of bad weather; aud th
Glenco said to him, that he bad not coma |
sooner, because be was hindered by tlie storm.*
And Ardkinlas farther depones, that when ha*
declineii to gire the oath of allegiance U> j
Glenco, because the la^tof December, the time i
appointed for the taking of it, was past, Glenco
btgw-e<l niih teai-s that he might t»e admitted t© '
take it, and promised to btin^r in nil his people
within a sliort time to do the hke; and if any
of them refused, they should be imnri.wned or
sent to Flanders. Upon which ArdKinlas says;^
he did administer to him the oath of aliegianc* '
upon the Otii of January, 1695, and sent a cer» |
(iikate thereof to £drllhur|vh,^4ith colonel llill'i *
letter to Colin Campbel, sheriff clerk of Ar^ile, i
who was then at Edinburgh ; anil further wroteTI
lo the said Colin that he should write bttck to
him, wbetfaer Gleuco's taking of the oatl
3 31
809]
7 WILLIAM III. Proeeedingt <» tit Pmlitmat^ SmOmd^
I
allayed hj tbe ooancil or noit a* Aidldnlas^i
iiepo»ittoii at tbe Utter B tetliliw. Aad the
still Colin« sherifi' cl«rk, ^kpoueSf tbit the
foresaid IcUers, and tbe certitte&te reiattog 10
Gktieo, with some other certificateft relftltii^ l»
tome other persoat all upoD one pA]>0r, were
sent iJi to bim to Edinburgh by Ardkinlii;
which paper beuig produced upon oath by air
Gilharl £niot, clerk of the 9ec4%t council, btii
rolled and acoivd as to Cikooo's pari, and hia
tlkiii|f the oath of allegiance, yH the commii^
siooera fiwiwl that it was not ao delete or dasheil,
hut that it may he read that Gleaco did take
the oath of allegiance at loverary, the 6th daj
of January, 1602. And the aaid Cotio C«mD-
bel de|iones, that it came to hia hand faitt^
i^ritlen» and not daah^l; and that with thia
eerttficate he had the aaid letter from Ardkinlas
(with ookmd HiU^a above mentioned letter to
Afdkinlaa inckwed) beariog^t how carneat Gletioo
woa to take tlie oath of allegiance, and that be
liad taken it upon the 6th of January, but that
Ardkinlaa wm doubtfiil if that the councii
vmald reeetve it : and the sheriff clerk did pn»*
dttM hefbfv the eooimiflsionrrs the foresaid
letter W colonel HiJl to Ardkinlas, dated at
Fort William the aist day of December, 1691,
and bearing, that Glenco had been Mith him,
but aliped some days out of ignoraoce ; yet
that it was good to bring in a loat aheep at any
lime, and would be an ad?aiitaffe to render the
king^s government easy* And with the isaid
iherifr clerk, the lord Abenichit, Mr. John
Campbel, writer to the signet, and sir Gilbert
£|liot, derk to the council, do all declare, That
Gleoco'M faking the oaih of ollcgtance, with
ArdkiuloM's foresaid certi^cate, as to hta part of
it, did come to Edinburg-h, and was seen by
them fairly written, and not scored or dashed ;
but that ^r Gilbert and the oilier clerk of the
council refused to take it in» because done
at\er the day appointed by the prodamatioD.
Whereupon tbe said Colin Campoel, and Mr.
Joha Campbel, went, as they depone, to tlie
lord Aberuchil^ then a privy counsellor, and de-
sired bim to take the advice of privy counsel-
lors about it ; and accordiogly tney affirm that
Aberuchil said be had spoke to several privy
counsel loni, and partly to the lotd Stairs^ and
that it WAS ilieir opinion that the foresaid certi'
tiL'ate could not he received without a warrant
from the king, and that it would neither be safe
to Ardkinlas, nor profitable to Glenco, to give in
the certificate to the clerk of the council ; and
this tbe lord Aberuchil confirms by his deposi-
tiou, but doth not name therein the lord Slair.
And Colin Campbel, the shchtf clerk, does
fartlior liepone, thut tvith the knowledge of the
lord Alieruchil, Mr. John Campbel, and JIIr»
David Moncrief, clerk to the council, he did by
himself, or his servant, score or delete the for-
said certificate, as now it stands scored, as to
Gknca^s taking the oaih of allegiance, and I bat
he ^ave it in so scored or ubliterate to the said
Mr, Dnvid Moncreif, clerk of tlie et»u net), who
took it in as it is no^v produced. But it dttlh
not appear by all these depocitiotts, that the
a thad»_
W«rtfNJ
l«£likl
nciatler was brongbt l» the *
tbe council's pkaaiite nlglii I
though it seems to have been iotetided 1
kinlaa* who both writ liiioaeir, wid seali
Hill's letter for to ruake Gleaco's
desired expressly to know the csouaeil^i
After that Gleaco had taken tbe mi
legiaace, aa is said, he went home to I
house ; and, as his own two soot mhirm J
depnue, be nut only bred there tf«r m
<]tiietly and securely, hot called Im |
gpther, and tuld them he had takes I
aliegiame, and oiade his ^
demised and ino^ged tbam to U^e ^meeMf
under kiug^ WiUiun's irovemtiient^ m
positions of tlie said who '
sent, oaarked with tli^ . bear.
These thinga hunng prt^«ded the ahin^
which happ<Med not to be oononiitted tiiitil 1 _
lath of Febnisry, 14199, as weda «Aartb« ^ '
ceued Gleneo had tikeo the oath offtllipaMttt
Invcrary, the alaoghterof the Gleooo in«i «■
in this mauner, vis. John and Alestwidar jjicdl
nalds, sons to the deceased GlesM^ ^Nf^^
That Gleugary's house being radnMA, thi
forces were called hack to the sotiilt, wmA Uln-
ly on , a capiaiii of the earl of Argy le*ii rcgiBiiit
with Ueuteoant Lindsay, ettaagu Ltnltvf , mi
six flooro soMicis, retnrned to uleikoa ihosiibi
Ist of February, 1603, where» «t
the elder brother John met them with I
men, and demanded tbe rea^n of titeir I
and lieutenant iindaay ahewed hifli bis oidiii
tor quartering there vadar aoloiial UilFsl
and gava aastuaitGe that they were oidy
to <^uarter ; wberaapon they were biUrtod btl
country, and bad finee quarters and "
tainment, hving familiarly withtba |
the 13th day of February. And i
ther depones, that Gleulyon htang biawiAi^
uncle, came almost every day and
morning drink at his house % atid thai 4
night betinre the slaughter, Glenlvon 4_
at cards in hts own quarters with both dial
thers. And J ohn depones. That ohl OJaoco I
father had invited Glenlyon, lieu1Cf»aBt T
say, and ensign Liodsay, to dine with h
the very day the slaug'hter happetiad, Bdti
the 13th day uf February, beuig Bttaaitf^
about four or hve in tbe morning, tinlMMi
Lind&ay, with a party of tite foresaid aoidlM^
came to old Glenoo's house,^ wbera hatr
led in a Iriendly manner, and got in, I
his father dead with several shots a$i lie i
iDg out of his bed ; and the m*
up and put on her clotlies, the
her naked, and drew the rings
with their teeth ; as likewi^t
man more, and wounded anothc^r gi
* Aubrev> iu bis Miscellantes, relatoit
Archilmid Maekeanyefs alias MaekdooalirJ
secotid-ftig-htcd seer, had wartiad
*^ that he would be mutderetl in the i
ill his own house, three months betbra it
l»ened,"
The same Author i
4
31]
ntpecHng the Massacre tfOknco*
A. D. 160fi.
[903
e suiie place. And this relatioii tbey say
ey bad tram their mother, and is confirmed
' the depoMtioo of Archibald HacdonaM in-
veller in Glenco ; who fiirther depones that
IcBon was shot behind his back with two shots,
le through the head, and another through the
4y ; and two more were killed with him in
at place, and a third woanded and left fw
Ad. And this be knows, because he came
at same day to Glenoo's house, and saw his
!ad hody lyintf before the door, with the other
ro that were kilted, and spoke with the third
tat was wounded, whose name was Duncan
kM, who came there occaskmally with letters
«Bi the brae of Mar.
The said John Macdooald, eldest son to the
iwiaaed Gleoco, depones, the same roommg
hat his father was killed, there came soldiers
D hii boose before day, and called at his win-
ter, which gare him the alarm, and made
M ge to Innerrjggen, where Glenlyon was
(Bvlmd, and that he fbond Glenlyon and
M men preparing their arms, which made the
kponentask the cause; but Glenlyon gare
Ufli only ^ood words, and saul tbey were to
mrch against some of Glengary*s men, and if
Ikara were ill intended, wodM not be have told
fady and bis niece ? meaning the deponent's
ftndMr and his wiie ; which made the depo-
MM go home and goasain to his bed, until his
imit, who bin£rea him to sleep, raised
ftia. And when he rose and went on^ be per-
MiM about twenty men coming towarda his
Whs, with their bayonets fixed to their mus-
Imi; whercamm be fled to thebill^and having
Ascbaaion, a little village in Glenco, in view,
bi bsard the sbota wherewith Anchintriaten
liMnr more were killed ; and that be heard
lbs the abets at Innerriggen, whore Glenlyon
Meaosed to lull nine more, as shall be here-
in dcdaicd. And this is confirmed by the
weeaiiing clepositam of Alexander MacdonaM
hb Watber, whom a servant waked out of
dnp^ tftjbig, It is no time for you to be sleep*
b|, wbol tbey are fcilbng your brother at the
mr; wbiefa made Alexander to flee with his
bslber Id ike billy where both of them heard
is fcnaaid ihota at Anchnaion and Innerrig-
fat And the said John, Alexander, and Ar-
MaM Maodooakl do all dejione, that the same
iwniing there was one aeigcant Barber and a
PMy ai Aucbnaion, and that Auchintriaten
M^f there in bis brother's house with eight
■Mv sitting about the fire, the soldiers dis
■anpBB
anon them about eighteen shot, which
aebinc "
Avenintriaten and four more ; but the
Ihcrlbiip, wbereofsome were wonnded, fall-
HeneoelMd received concerning a ibrmer dan-
;er ■rwioos notice from the same seer, which
mdoeta c^pally neglected and equally verified.
t My, however, be thought by most readers
f this Aral prcdvetion, that the danger might
■fe been foreseeu without preternatural intel-
■enee, ami that eompfiance to the warning
i^ghijh<ire bevn given without any itopidity of
^~\ Kit diCfedinily*
ing down as deed, seijeint Barber laid hold on
Aucbintriaten*8 brother, one of tlie four, and
asked him if be were alive? He answered, that
be was, and that be desired to die without ra-
ther than within : Barber said, that for his
meat that he had eaten, he wonM do him tlie
fiivqur lo kill him without ; but when the man
wiA brought out, and soldiers brought up to
shoot him, he having his plaid loose, flung it
over their fi^es, and so escaped ; and the o£er
three broke through the back of the house, and
escaped : and tins account the deponents had
from the men that escaped. And at Inner-
riffgen, where Crienlyon was quartered, the
MMdiers took other nine men, and did hind them
hand and foot, killed them one by one with
shot. And when Glenlyon inclined to save a
yoiui^ man of about twenty years of age, one
captain Drummond came and asked how he
came to be saved, in respect of the orders that
were given, and shot him dead. And another
young boy of about thirteen yean ran to Glen-
lyon to be saved, be was likewise shot doid ;
and in the same town there was a vroman and a
boy about four or five years of age killed :
and at Aucbnaion there was also a child
missed, and nothing found of him but the
hand. There were likewise several killed dt
other [daces, whereof one was an ohi mill
about eighty years of age. And all this the
deponents say tbey aflirm, because tbey beard
the shot, saw the dead bodies, and had an acS^
cout from the women that were left And
Ronald Macdonald, indweller in Glenco. fbr*
ther depones, that he hemg living witn bia
fiither in a XtOXe town of Glenco, some of Glen-
lyon's soldiers came to his father's house, the
said 13th of February in the morning, and
dragged his father out of bia bed, and knocked
him down for dead at the door; which the
deponent seeing, made his escape, and bia
fatner recovering af^r the soldiers were gone,
got into another house ; but this house waa
niortly burnt, and his f^er burnt in it : and
the deponent came thero after, and gathered
bia father's bones, and burnt them. He also
declares, that at Anchnaion, where Auchin-
triaten w&s killed, be saw the body lyf Anchin-
triaten and three more cast out and covered
with dung. And another witness of tlie some
declares, that upon the same 13th of February',
Glenlyon and lieutenant Lindfsav, and their
soldiers, did in the morning bemre day fall
upon the people of Glenco when tlicy were
secure in their beds, and killed thcin ; und he
being at Innerriggen, flod \«ith the first, bm
hcanl shots, and hod two lirotlicM killed there,
with three men moro and a ^voman, who were
all buried bdbre he came back. Ami all these
^^e witnesses concur, that the forrsaid slaugh-
ter was made by Glenlyon ami liis soldiersi
after they hail been quartered, and lived peace-
ably and friendly with the Glenen men about
IS days, an«l that the number of thtife \% horn
they knew to he slain were aliont To ; and that
the soldiers alter the slaughter did huru the
bouses, bams and goods, and carried away a
*MS] 7 WILLIAM IIL ProceaUngi in the Pariiament of Scotland, [90;
mat spoil of horse^ nolt, aiid sheep, above a
tliuusand. And James Campbel, soldier in
the castle of'Sterlingr, depones, that in January
1692, be beings then a soldier in Glenlyon^s
com|mny, marched with the company from
Jnverlochie to Glenco, where the company
was quartered, and very kindly entertainMl for
the space of fourteen days ; that he knew^o-
thintf of the design of killing the Gienco men,
till the morning that the slaughter was com-
mitted ; at which time Glenlyoq and captain
Drunimond's companies were drawn out in
several parties, anu got orders from Glenlyon
and their other officers to shoot and kill all the
countrymen the> met \\ ith : and that the de-
poueut being one of the party which was at tlie
town where Glentyon had his quarters, did see
several men drawn out of their beds, and par-
ticularly he did see Glenlyon^s own landlord
shot by his order, and a young boy of about
twelve years of age, who endeavoured to save
Limselt by taking hold of Glenlyon, offering to
iro any where with him if he would spare his
ite, and was shot dead by captain Drum-
•mond's order : and the deponent did see about
eight persons killed, and scleral houses burnt,
and women flying to the hills to save their
lives. Aud lastly, sir Colin Campbel of Abeni-
chil depones, that afler the slaughter, Glenlyon
told him that Alacdonald of Inncrriggen was
killed with the rest of the Gienco men, with
«ol. Hill's iiass or protection in his pocket,
ivhich a soldier brought and shewed to Glen-
lyon.
The testimonies al>ovc .set do^vn being more
than siifHcient to prove a dciMl so notoriously
known, it is only to l)c remarked, that more
witnessf s vi' the- actors tlicinselves niit^lit huvc
bt'cn found, if (ilenlyoii and his soldiers were
jiot at present in Flanders with Ar^lu's regi-
ment. And it is farther added, that lieutenant
Ciolonel Hamilton, who seems by the orders
and letters that shall be hereailer set down, tu
have had the particular charge of this execu-
tion, did march the night before the slaughter
with iibout 400 men; hut the weather lulling
to be very bail and se\erc, tlic-y weie forced to
stay by tirc way, and did not get to (iknico
against the next morning, as had been con-
certed betwixt major Duneason and lieutcuaiit
colonel Hamilton ; so that the measures being
broke, lieutenant colonel Hamilton and his
men came not to Gienco till about eleven of the
clock, after tli« slaughter had been comuiilted,
which pmved the preservation and safety of the
tribe of Gienco, since by this means the far
j('reatcr part of tlietn escaped: and then the
lieutenant colonel bcitig come to (!an:)cloch-
levcn, appointed several parlies for several
posts, with orders that they should take no pii-
soners, but kill all the men that came in tlieir
way. Thereafter some of the lieutenant c olo-
uel's men marched forward in the Glen, and
met with major Duncason's partv, whereof a
part under Glenlyon had been sent by lieute-
nant colonel Hamiltou to quarter there some
days before j and these meu told how they had
killed Gienco and about thirty six of his mei
that morning, and that there remained notbii^
to be done by the Ueutenant colonel and ht
men, save that they burnt some houses, aai
killed an old man by the lieutenant cslood*!
orders, and brought away the spoil of tlh
country. And tliis in its sieveral ]»arts is tett<
fied by John Forbes, major in colonel Hill's
regiment, Francis Farquhar and Ciilbert Kei-
nedy, both lieutenants in that regiment, wiic
were all of the lieutenant colonel^s party, u
their depositions more fully bear.
It may also be here ooticetl, that some dsjn
afler tlie slaughter of the Gienco meu was over
there came a person from Cam|»bel of Bil«
calden, chamberlain, i. e. steward to the £. of
Braidalbin, to the deoeasetl Glenco's sons, lod
offered to them, if tliey would declare undor
their hands, that the earl of Braidalbin was free
and clear of the said slaughter, they might be
assured of the carl's kindness for prociiriiwthdr
remuision aud restitution, as was plain^ de-
poned before the commissioners.
It remains now to give an account of tkc
warrants, either given or pretended to be mm
for the committmg of the foresaid slaiicalcr;
for clearing whereof it is to be noticed, thslthe
king having been pleased to ofler by proclias-
tion an indemnity to all the highlaiid rekeb^
who should come in and accept thereof by takiag
the oath of allegiance, betwixt and tlie fint m
January 1G92, idler the day was elapsed, itwi»
very proper to give instructions liow such if
the rolH'ls as had refused bis miyesty*s grace
should be treated ; and therefore his inaj^tiy.
by his instructions of the date of the 1 lib ox'
Juniinry 169!?, directed to sir Thomas Leviug-
ston, and sui»ei'si^'ned and countersigned by
hinriclf', did indetd order and authorize ar
I'homas to march the troops against tbe rtbeb,
who had not taken the benefit of theindenniit} ,
and to destroy them by tire and sword (whirb
is the actual stile of our commissions agaifiA
inlercomniuned rebels) but with this expiess
mitigation in the fourth article, viz. * That the
rebels may not think themselves desperate, vie
olloiv ^'ou to give terms and quarters, but iutbii
manner only, that chieftains and heritors. <*r
leaders, l)e ' prisoners of war, their livi-s Mil)'
sate, and all other things in mercy, they takinj^
the oath of allegiance : and the coranmuiiv
taking the oath of allegiance, and rendering
their arms, and submitting to the govemmeot.
are to have quarters and indemnity for their
lives and fortunes, and to be protected froni tbe
soldii'i*s/ as the principal pai>er of instruilioBf
producetl by sir Thomas Levingston bean.
After these instructions there were addiiioaal
ones giien by his majesty to sir Tboniii
I^vingston upon the 16tii of the said mondi^
January, supersi«;ned and countersigned by bif
majesty, and tJie date marked by secretUjT
Stair's hand, which l>ear orders lor giving «
passes, and for receiving the submission of ee^
tain of the rebuLi ; wherein all to be nodoai H
tlie present purpose is, that therein bis i
doth judge it much better that these irho I
respecting the Maimcre ofGlenco.
A. D. 1695-
not t[t« benefil of the inilemnit^' in due titne,
^^oulil be obligetl to render iipuii mercy, they
Hill takiti^ the oath of aUe^riance : and then
^K added, if Mackean ot Gleocu and that tribe
^Ko lie well st^jHifHted fiom ihe rest, it will be a
^^C»|J4»r vtndicatiuM ofihe (jubhc justice tuextir-
|Mtc that sect ol' ihieres.-* And of these addi
the rebels, are not able to oppose, and thetr
chieftains being all papists, it is well the ven-
geance falls there ; for my part i could havfl
wi&lied the Macdonaldsi had not divided, and I
amsorr^ that Kippoch und Mackean of Gleoco
are sate. And then alterwards we liave on
account, that Locheal, Maeoougbion, Appm
lignal in^iructionst a principal duplicate was and Gleoiio took the b«uctit of the indeuiaity
tun, and anolher to
I i»dueed ; and these
I \ 4^11 by the king in
^ttnl to sir Thorn u
■lonel Hill, and V
^wereall th(^ ia&trui uuu!»
this inaut^r.
tBut secretary Stair, who sent down thes<eia-
vctionii, ail Xxia letters produced, written with
I hand to sir Thomas of the same dale with
im^ tftsrify , by a prcvioiiij letter of the date of
e 7th of the jsaid month of January, v^ritten
#1x1 tiubseribed by hiru to sir Thonias, says, Yoit
know in general that these troopij posited at In-
verness and loverlocliie will be ordered to take
in the hou<»e of luner^rie, and to destroy in-
' ely the country of Luchuber^ Lcicheal'^ lands,
m
at Inverary, and Kippoch and others at loTcr*
i oess. But this letter of the 11th of January,
sent with the first instructions to sir Thomas
hath this expression, 1 bare no great kindness
to Kippoch nor Glenco,^ and it's well that p^le
are id mercy ; and Ihtn just now my lord Ari^ile
tells in«, that Glenco hath not taken ihe OLiib,
at which I rejoice \ it is a great work of churity
to be exact in rooting out that damnable sect, tfa^
worst of the highlands. But in his letter of
the 16th of January, of the same date with th&
additional instructions, thou^^h he writer in the
first part ol the Letter, The k\n^ iloes not at all
incline to receive any after the diet, but on
pptichs, Glengarie» and Glenco ; and then I mercy ; yet be thereafter aihU, But for a just
l«, * I assure ytnj your power shall be full
enough, and I hope the f^uldieis will not trouble
ibe ffoternineot with prisoners.'! ^"^ ^y ^"*®'
tll«r letter of the 9lh of the s:itd mouth of Janu-
%ty% which is likewise before, the instructions,
And writtt'O to sir Thomas as the former, be
, eJmmple of sengeanee, 1 entreat the thicvinjj
, Irtbe of Glenco may be rooted out to purpose.
And to confirm his by this letter of tne same
I date, j^eut with the other principal duplicate^
and additional instructions to colonel Hill, aUer
I haying written thai such as remler on mercy
I this expi-ession. That these who remain of might be saved, he adds, f shall intreat you
■ — ' ^ — ~ : that for a just vengeance and public example.
♦ This Order is thus givaa in the Memoirs of ^ the tribe of Glenco may be rooted out to uur-
pose. The earU of Ar^le and Braidalbin nave
promised that they shalt have no retreat intheirv*]
m^^ As for Mac Jan of Glenco and that tribe, ^^^"f ^ J>*^ passes* to Ronoch would besecamf.
Khey cxm be well distiuguished from the res! '^"^ f]l ^'^^'^'^ ^f.'-f ^^'^ to the laird otWeemstc*
»the Ui-hlauder., it will be proper, for the reset them ; m that case A rgde s deta^^^^^^
■idicatiou%f publi; justice, to^itirpate that witha;pary tbatmay bcpsledm .slan^S^^^^
»5of thieves "W R'' must cut them oft, and the people ot A ppm are
I none of the Uest,
This last letter, with the instructions foe
colonel Hill, wa.^ received by major Forbes hi bis
name at Edinburgh ; and the major deponcii,
' that by the allowance he bad from the colonel «
I he did unseal the packet, and found therein the
I letter and instructions as above, which he sent
forward to colonel Hill : and that in the bcgui-
niog of February 1692, t^iug in his way to
Fort-William, he met some compames of
Argile's regiment at Belli!»hiers, and was sur-
prised to uuden&tand that tliey were cooing to
ihe Massacre of Glenco
'* WlLUAM R.
As for Mac- J an of Glenco and that tribe,
liey can be well distiuguished from the rest
^ the Uighlautlers, it will be proper, for the
dication of public justice, to extirpate that
: of thieves. " W, R:'
<' This was directed to sir Thomas Leving*
I and colonel Hill And the parliament has
^oted that Levinj^sion i>|' Hiirs urders did not
^ \ these iostructions ; nor, indredt could
py ; for what can exceed extirpation T*
|f In the Memoirs of the Massacre of Glenco,
^ren tbefoilowing Letter from tuajor Dun^
\ ta captain Campbell i
" BUtuchoiis, Fik U, 1695,
** Sir; You are hereby ordered to fall upon
<be rebels, the Mac Donalds of Glenoo, and put | quarter in Glenco, but said nolhiuo; till nee
^1 to the sword undei- seventy. Vuu are to
have especial car^ that (he old fox and his sons
do upon no account escape your lumds. Vou
are io secure all the avenues that no man
escape r This you are to put in execution at
lire oVIock in the morning precisely, and by
Ihai time, or very shortly after it, I will strive
C4» be at you with a stronger party ; if I do not
oaam tioyou allSve you are not to tarry for me,
Init to lall on. This is by the kingV special
conamand, for the good and safety of Ihe coun-
try, that these miscreants may he culoft"^ root
Aud branch. 8ee that this be put in execution,
ivilhoutfcud or favour, else you may expect to
not true to the king or govern "
to Fort -William, where colonel Hill told hiiu
that lieut. coL Hamilton had got orders abont
the affair of Glenco, and that therefore tha
colonel bad lefi it to lieutenant colonel Ha-
milton's management, w ho, he apprehends, had
concerted! ttie matter uith major Duncason«
And colonel Hill depones, that he understood
ment, nor a man tit to carry a commission ia
the king^s service. Expecting you will noi
lail in the fultllling hereof, as vou love your-
selti 1 subscribe these with niyliand,
** Robert Duncauson/*
*^ For their majesties servic^e, to captain
Hubert Campbell, of Gioplyon."
907]
7 WILLIAM III. Proceedings in the ParliameiU tf Scotland^ [90S
tfiat lieatenant col. HamilUui and major Duq- | declared that at that time he waa immcdiatily
caaon got the orders about the Gleuco men, ! returned from hisjouriiey to London, and thai
which were sent to lieut. col. Uumihon ; that ; he knew notliing of any soldiers being onartcnd
fbr hunaelf be liked not the business, but in tilenco, and only meant thai he sBonM be
waa very grieved at it ; that the king's instruc- prosecuted as a rebel standing oat, by fair hos-
t»n!i of the 16th of January 1092^ nitb the tility : and in this sense he made use of the
naater of Stair's letters of the same date, were same words and orders written to him by fa-
brought to him by major Forbes, who bad crelaryS^ir. TfaereailtercokinelHillgifaBMi
eceived them, and unsealed the packet at
Edinburgh, as these two depositions do bear.
Yet the execution and slaughter of the
Glcnco men did not immediately take effect,
and thereafler on tlie dOth of the said month of
January, the master of Stair doth again write
two letters, one to sir Thomas Levin^ton,
which bears, I am glad that Glenco did not
come in witliin the time pretixed ; I hope what
is done there may be in earnest, since the rest
are not in a condition to draw together to help;
I tlrink to harry (that is to drive) their cattel,
and burn their houses, is but to render them
desperate lawless men to rob their neighbours,
but I believe you will be satisfied it were a great
adTantage to the nation, that thieving tribe were
rooted out, and cut olf ; it must be quielly done,
otherwise they will moke shift fbr both their
men and their cattel ; Argile's detachment lies
in f /etrickwecl to assist the garison to do all of
a sudden. And the other to colonel Hill, which
bears. Pray when the thing concerning Glenco
is icsolved, let it be secret and sudden, other-
wise the men will shift you, nnd better not
meddle with them than uot to do it to purpose,
to cut off that nest of robbers, who have fallen
rn the merry of the law, now when there's
torce and opportunity, wherrby the kin^\s jus-
tice will l>e as conspicuous and useful as his
clemency to others. 1 apprehend the stonn is
so great,' that for some time you can do little,
but so soon as possible 1 know you will be at
work, for these false people will do nothin<v but
as tlicv sec you in a condition to do with them.
Sir Thomas Ix-vingston having got thekinjf*s
instructions, with secretary Stair's letter of the
16th of January, and knowing by a letter he
had from the master of Stair of the date of the
7th of January 1692, that lieutenant colonel
Hamilton was \o lie tlu^ man employed in the
execution of the Glenco men, in pursuance of
the secretary's letter, he writes to lieutenant
colonel Hamilton upon the 23d of the itaitl
month of January, telling him, that »t was
judgCi! good news* that Glenro hati not taken
the oath of alletfianee within the time preiixcd ;
and that serret»r\* Stair in his last letter had
made mention of liim, and then adds, * For, !Sir,
* here is a fair occasion for you, to .<how that
* your garrison serves for some use ; and see-
* ing that the orders are so positive from court
* to me not to spare any of them that have not
* timely come in, as vou may see by the ortlers
* I send to your colonel, 1 desire you would '
* begin witli Glenco, and spare nothing which
*■ belongs to him ; hut do not trouble the go-
* verniuent with prisoners :' as this letter pro-
duced by lieutenant colonel Hamilton bears.
Aud air Thomas being heard upon this letter,
order to be directed to lieutenant eomd Ha-
milton, in these terms : ' Sir, yon are with 400
* of my regiment, and the 400 of my lord Ar-
* gyle's regiment, under the command of majw
* Duncason, to march 8tr»pfht to Glenco, and
* there pot in due execution the orders joo
*' have received from the commmnder in chiif.
* Given under my hand at Fort William, the
« 12th day of February, 1699.' And this aider
is also produced by lieutenant colonel HMniltao.
Then the same day lieutenant coUmicI Ha-
milton wrote to major Duncason in tbeae tcnM:
' Sir, pursuant to the commander in chief iad
* my colonel's orders to me, fur imttin^ in cx^
< cution the service against the rebels ot Gleoco,
* wherein you with a party of Aisle's rcgi-
< ment, now under your command, are fo fce
' concerned, you are therefore to order jssr
< affairs so that you be at the several poils as-
*■ signed you by 'seven of the clock to-merros
* morning being Satunlay, and fall in aclioa
' with them ; at which time I will endeavoar
* to be with the party from this place at tbe
' post appointed them.* It will be necessarr tktt
' the avenues minded by lieutenant CanpklM
" the south side be secured ; that the old fox air
' none of his cubs get awa^ : the orders are, tkit
< none he span^d, nor the government troaUel
' \\ itli prisonei-s ;' and the copy of this last
order is produced under lieutenant colon*'l Ha*
milton's own hand, and accordingly the slaugli*
ter of Glenco and liis |K>or [leople did ensoc tbe
next morning, being the 13th of February,
1(393, in the manner narrated.*
And upon the whole matter, it is the opinioe
* The author of the Memoirs of the Mafsa*
ere of Gleuco, says, that he had copies of Dai-
ry niplc's nine letters (viz. to col. Hamilton, t«#
dated isl and 3d December, 1691 ; to sirTbo.
mas l^vingston five, daud 7ih, 9th, lllH,
Itjth, 30lh January 1()92 ; and to col. HilK two
dated on the same days whh the last tvio to
I.eving3ton) which were produced respectiDf
this massacre; but 1 do not observe that be
states from them any new matter, unkw it be
the followini; passages :
" The winter is the only season in which at
are sure the Highlanders cannot escape us,Dei
carry their wives, bairns, and cattle to tbi
mountains."
*' It i.s the only time that they cannot escif*
von, for human constitutions cannot endoiel^
be IJMig out of houses. This is the prui»er tttr
son to maul them in the cold long niglits."
** I expect you will find little reststanee bli
from the season."
** 1 am coDtident you will sec there tie W
powers given you in very pletiQ tenaSy and J<
rapeeting the Massacre ofGleneo.
A. D. 1690.
pio
romissioo ; First, Tliat it vos a great
lat Glenco's care and diligeiice, as to
i^ the oatb of allegiance, witii Ard-
oertificate of his taking the oath of a1-
on the 6th of January 1693, and co-
il's letter to Ardkinlas, and Ardkinlas's
Colin Campbel, sheriff clerk, for clear-
ico's diligence and innocence, were not
d to the lords of his majesty's privv
when they were sent into Edinburgh
id month of January ; and that those
ised the not presenting thereof were in
)g, and seem to have had a malicious
gainst Olenco ; and that it was a fur-
tng that the certificate, as to Glenco's
le oath of allegiance, was delete and
e afler it came to Edinburgh ; and that
> obliterate, it should neither have
■sented to, or taken in by the clerk of
icil, without an express warrant from
icil. Secondly, That it appears to
ID known at London, and particularly
laater of Stair, in the month of January
at Glenco had taken the oath of alle^i-
oagh after the day prefixed ; for he saith
tter of the SOth of January to sir Tho-
riiigston, as is above remarked, 1 am
t Cilenco came not in within tho time
ed. Thirdly, that there was nothing
ing's instructions to warrant the com-
1^ the foresaid slaughter, even as to the
telf, and far less as to the manner of it ;
Ul his instructions do plainly import,
most obatinate of the rebels might be
into mercy , upon taking the oatli of alle-
iiough the day was long before claused,
, he ordered nothing concerning Glenco
tribe, but that if they could be well se-
frum the rest, it would be a proper vin-
of the public justice to extirpate that
thieves: which plainly intimates that
is majesty's mind that they could not
rated from the rest of these rebels,
ley still refused his mercy by coutinu-
rms and refusing the allegiance ; and
sn in that case they were only to be
ed against in the way of public justice,
>ther way. Fourthly, That secretary
etters, especially that of the llth of Ja-
69S, in which he rejoices to hear that
had not taken the oath, and that of the
' January, of the same date with the
idditional instructions, and that of the
the same month, were no ways war-
by, but quite exceeded the kiog*s fore-
tnKtions ; since the said letters, without
bod left very much to your own discre-
I we see what is done by the chiefs, it is
i to receive their tenants, or admitting
lake the oaths or hoping for pardon, tiU
re evidence that they are willinsf to pay
Hi to yoo, and to take tacks Sir their
Intiea. Who will not do so, and were
cbdlioni must feel the dimial cousc*
©fit"
any iDsiouation of any method to be taken that
might well separate the Glenco men from the
rest, did, m pmce of prescribing a vindication of
public justice, order them to be cut off and
rooted out in earnest, and to purpose, and that
suddenly, and secretly, and quietly, and all on
a sudden ; which aretJie express terms of the
said letters ; and couiparing tbem^aud the other
letters with n'hat ensued, appear* to have been
the only warrant and cause of their slaughter^
wliich m effect was a barbaroua murder, per •
petrated by the persons deponed against. And
this is yet farther confirmed by two more of his
letters, written to colonel Hill after the slaugh-
ter committed, viz. on Uie 5Ui of March 1692,
wherein, after having said that there was mucli.
talk at London, that the Glenco men were mur-
dered in their beds after tlicy had taken the al-
legiance, he continues. For the last I know no-
thmg of it ; 1 am sure neither you, nor any body
impowered to treat or give indemnity, did give
Glenco the oath ; and to take it from any body
else after the diet elapsed, did import nothing
at all ; all that I regrate is, that any of the sort
got away, and there is a necessity to prosecute
them to the utmost And another from the
Ha^ue, the last of April 1692, wherem he says.
For the people of Glenco, when vou do your
duty in a thmg so necessary to rid the country
of thieving, you need not trouble yourself to
take the pains to vindicate yourself by shewing
all your orders, which are now put in the
Paris gazette; when you do right you need
fear nobody ; all tliat can be md is, tliat iu
the execution, it was neither so full nor so Mr
as mi^t have been. And this their hum-
ble opmion the commissioners, with all sub-
mission, return and lay before his majesty, in
discharge of the foresaid commission.
Sic SubgerUfitur^ Twbddals, Anamdale (now
marquise of Aoandale, and president
of the privy cooncil.) Mubeat, (now
duke ofAtliol and Wra privy seal.) J a.
Stuart (her majesty's advocate.) Adam
CocKBUui (UUe lord treasurer depat)
W. Hamilton (lord Whitelaw, one of
the lords of the session.) Ja. Oouuvib
(now earl of Seafield and lord higli
chancellor.) A. Drvmhond.
The Repjoit being agreed on, and signed by
the eommifSMners, several members mom
in parliament on the 34th of June, that the said
report should be laid Mm the house.
Upon which his majesty's high commission-
er acquainted the parliament, that the report
of the commission, thr inquiring into the busi-
ness of Glenco, being sent to liis majesty on
Thursilay last, he would hiy the same befora
them, with the depositions of the witnesses,
and other docnmentn relating thereto, for their
satisfaction and full information ; and if they
thought fit to make any other use of it, he
made no doubt it would be with that de-
ference and submission to his majesty's judg-
ment, tbot becometh so loyal and sealoui npnr-
911]
7 WILLIAM IIL Proceedings in the Parliament tf Scotland, [915
liamcot, in Tindication' of the justice and ho-
nour of bis majesty's gorernment.
Then the report from the commission for in-
qnirin<; into the slaughter of the Glenco men,
was r^, with tlie depositions of the witnesses,
the king^s instructions, and the master of Stair's
letters, for instructing the said report.
After hearing the said report, it was Toted,
Ifemine contradicente, that his majestv^s in-
structions of the 11th and 16th days or Janu-
ary 1692, touching the highland rebels, who
did not accent in due time of the benefit of his
indemnity, did contain a warrant for mercy to
all without exception, who should take the oath
of aH^iance and come in upon mercy, though
the (irst day of January 1692, prefixed by the
proclamation of indemnity, was passed ; and that
therefore these instructions contained no war-
rant fbr the execution of the Cilenco men, made
in February thereafter. Then the question
was stated and voted. If the execution of the
Glenco men in February 1692, as it is repre-
sented to the parliament, be a murder or not?
and carried in the affirmatire.
Moved, That since the parliament has found
it a murder, it may be inquired into who were
the occasion of it, and the persons guilty and
committers of it, and in what way and manner
they should be prosecuted. And after some
delmte thereon, the method of the said prose-
cution was delayed, and resolved. That this
House will again take the same under consi-
deration first on ]^Ionday next : and the master
of Stair's letters were ordered to lie put in the
clerk's hands, and any members of parliament
allowed an inspectionthcrcof.
June 20, 1C95.
The inquiry into the persons who were the
occasion (»f the slaughter of the Glenco men
was again proponed, and motioned that before
any further procedure in thnt affair, there may
be an address sent to his majesty on what is
already past. And after some debate thereon,
the question stated, proceed further in the in-
quiry before addressing his majesty, or a'iilress
upon what is already past without any further
procedure ? And carried, proceed further before
address. i .. . ,-
Thereafter the question stated and votad, if :„V*urn„i r
*L I 1 1 i* * I ^ ■ I .1 \ \ ann tlie order
they should nrst proceed to consider the master
of Stair's letters, or the actors of the murder of
Glenco men ? and carried, First to consider
the master of Stair's letters.
Tiicn the master of Stair's letters, with the |
king's instruc'tioiis to sir Thomas Levir.sfston i
and col. Hill, and the 4ih article of the opiui'in :
of the commission relating to the master of I
Stair, was read ; and after some debate the '
Question was staled, whether the master of .
Stair's letters do exceed the king's coiumi-ssioii, |
towards the killing: and destroying the Glenco
men, or not ? And carried in the aftirmativc.
ing upon the commission for inquinDg into tin
slaughter of the Glenco- men, and arraicninf i
vote of parliament : and therefore moved, Thil
it may be inquired who was the author of it,
and that both he and the said print mayk
censurefl. Mr. Hugh Dalrimple, brother totbc
master of Stair, and a membier of |iarlianM0l,
acknowledged himself to be the author, wui
gave an account of bis mistakes, protntiif
that he therein intended of> reflection on ibe
commission, and that the paper was wiitlet
before the vote past in parliament, tbos^
printed and spread thereafter.
iCesolved, That first the author and thea tbe
print be censured. And Mr. Hugh was or-
dered to ask his ipice and the parliament pv-
don ; which he did, again declaring, that »bi^
was offensive in that paper hskd bappesd
through mistake.
Thereafter agreed that the said priot ws
false and calumnious. And the qiiestiOB \taaf
stated, If the print spread abroad arooii|rst the
members of parliament, intituled, * loforinatiflo
* for the Master of Stair,' oughtto lie condenwi
as false and calumnious, and thei'dbre burai;
or only that the print should be so marked »
the mmutes of parliament ; it carried, Tint Ike
firint should he marked in the miDiites af p«-
iament to be false and calumnious.
Then the parliament prooeeiled farther ia As
inquiry of the slaughter of the GI«oo-mb.
And in the first place, as to the orden gifcs k
sir Thomas Levingston, in two of his latten»
recti'd to lieutcnuut colonel Hamilton : and fk
said letters being read, after deliate thereoo it
was put to the vote, pnareed or «lelay , and «•
ried proceed.
Then the question was statefl, Wliefbcr w
Thomas Levingstoii had reason to givefoti
orders as were contained in these letters, ft
not ? and was carried in the affirmative, mmi^
contradiccnte.
July 8, 1605.
The parliament hnvini; resumed theiDquirT
to the slaughter of the Glenco-men, and vk»
June 38, 1695.
The president of |»arliament represented,
That there was a print dispersed, intituled,
* Information for the Master uf Stair,' reflect*
into the slaughter
were the actors ; and in the first place aW
lieutenant colonel Hamilton, and that |«rt^
the commission relating; to liia*
rs he got, and the orders bes«<
he gave, with the dep>sitions taken before the
I said commission : and uf tfT some debate there*
' on, the question was stated and pu' to ihcTOtt-
I if from what appears to the parliament, liMl*
! col. Hamilton be free from the murder of the
! Glenco-men, and whether there be gmaod l»
I prosecute him for the same, or not. ^ and cit'
I ried, he was not ckar, and that there «**
ground to prosecute him.
Tlion tlie question was stated and voted ail*
major Duiicasun, at present in Flanders, if Al
king should be addressed, either to cauas**
to be examined there about the onlem be It*
ceived, and his knowledge of that matter; V
that he be ordered home to be procecuied lklfe|
fore, as \m majesty shall th'uiK fit, or W? IV
carried in the afUrmative.
IS]
respecting the Massacre ofGlenco*
A. I).
[914
Then that part of the re|x>rt of the commis-
on, as to Gienlyoii, captain Drninmond, lien
tnant ur adjatant Lindsay, ensign Lundy, and
sijeant Barber, read with the depositions of
le witnesses a^inst them ; and the question
tateU ami voted. If it ap|>eared that the said
ersons were the actors of the murder of tiie
rienco-men under trust ; and that his majesty
e addressed to send them home to be prose-
uted for the same according^ to law, or not?
LDd carried in the affirmative.
Therefore voted, If it shouUl be remitteil to
be committee for the security of the kins^dom
B draw this address, or a new committee elected
ar drawinf]^ thereof? and carried remit.
The report from the committee for security
)f the kin^om in favours of the Gienco-men,
rtad and remitted to the said o^minittee ; that
there he a partit-ular recommendation of the
petitioner's case to his majesty bront^ht in by
Ike said ci)mraittee.
July 10, 169J.
The Address about the slaughter of the
GImco-nien to lie sent to the kiofv*, rend, with
W9en\ of the master of Stair's letters to sir
Hmnas Levingston and colonel Hill: zu)d after
»Bie debate upon the parauraph tonchint;: the
Mster of Stair, it was voteil, approve the para-
gnph as brought in fmm the committee, or as
4cred whh amendments: it carried, approve
Mbiwight in fruni the committee. Therea(\er
Ike whole Address was put to the vote, and ap-
fRited as follotvs :
^ Address of the Nirblemen, Barons and
Burroughs in Parliament, hnmbly pre-
sented to his most Sacred Blajesty upon the
Discovery communicate to them, touch-
ing the Murder of the Glenco-men in Fe-
bniary, 1693.
" We yoar majesty's most loyal and dutiful
ttbjccts, the noblemen, barons and burroughs
Membled in parliament, do humbly represent
ft yoar majesty that in the beginning of this
WBOD, we thought it our duty, for the more
ofenun and public vindication" of the honour
ad iuslice of the covemment, to inquire into
be barbarous slaughter comroittetl in Glenco,
^cb. 1699, which hath made so much noise,
lotb in this kingdom and your majestv's other
bmiDiciDS : but we being infbrmeil by your
■ajeity's commissioner, that we were pre-
toted in this matter by a commission under
kn great teal for the same purpose, we did
ipon reading the said commission, iinanim-
«sly acquiesce to your majesty's pleasure,
od rctnmed our humble acknowfadgments f«ir
■oorruyal care in granting the same ; and we
■ly desired that the discoveries to be made
^ookl be communicated to us, to the end that
m micfht add onr zeal to your majesty's for
■Meeoting tnch discoveries ; and that in so
fldonal a concern, the vindication might be
In public ai the reproach and scandal had
eeo; and principally that we, for whom it was
VOL. XIII.
most proper, might testify to the world how
clear your majesty's justice is in all this matter.
** And now your majesty's f*omniis«ioiier,
upon our repeated instances, cfimiuiinirated tu
us a copy oflhc report transmitted hy the com-
mission to your majesty, with your majesty's
instructions, the ninstrr of Stall's letters, the
oniprs ^nveii by thi* oflipcrs, and tlie dfposition«i
of the witnesses, rrlaiiii<r to that ropoit ; and
the same being reud and compared, we could
not hut unanimously dt^^-lare, that your ma-
jesty's instructions of the 7th and 16th of
.faniiary 169'^, touchinsr the higlilanders ulio
had not accepted in due time ot the benctitof
the iiidemniry, did cohtniua » arrant for mercy
to all without (-xceptiun, nho should oiler to
take the oath of nllegianre, and rome in ii|miii
mercy, ihouijh the 1st of January 169'^, pre-
fixed by the prorlarnation of iuilemnity was
past; and that I hrse instructions contain no
warrant for the exei^ution of the (Jlenco-meii
inatle in February ihrreafter. And here we
cannot but acknuCvltH);^ your majesty's signal
clemency upon this orcnsion, as well as in the
whole tract of your (rovernment over us ; for
had your majesty, w ilhout new offers of mercy,
given positive orders for the executing the law
upon the highlanders, that had already de-
spised your repeated indemnities, they had but
met with what thry justly deserved.
'* Dut it being your majesty's mind, accord-
ing to your usual clemency, still to offer them
mercy ; and the killing of the Glenco men be-
ing upon that account unwarrantable, as well
as the manner of doing it being barbarous
and inhuman, we proceeded to vote the killingf
of them a munler, and to inouire who had
given occasion to it, and were the actors in it.
** We found in the first place that the master
of Stair his letters had exceeiiefl your ma-
jesty's instnictions towanis the killing and de-
struction of the Glenco-men: this appeared by
the comparing the instructions and lettert,
whereof the just attested duplicates are here-
with transm.tted ; in which letters the Gfenco-
men are over and again distinguished fr4»m the
rest of the highlanders, not as the fittest subject
of severity, in case they coutiniied obstinate,
and made severity necessary according to the
meaning of the instructions ; hut as men ab-
solutely and positively ordered t«» be destroyed,
without any further' consideration, than that
of their not having taken the indemnity in due
time ; ani their not having taken it, is valued
as a happy incident, since itafl*.irded an op-
portiiiiity to destroy them ; and the destroying
of them is urged wiih a {;reat deal of zeal, as
a thing acceptable and of public use ; and this
zeal is extended even to the giving of direc-
tions about thf manner of cutting them oflT;
from all which it is plain, that though the in-
structions be for mercv to assist all that will
submit, though the day of indemnity was
elapsfMl, yet the letters do exclude the Glenco-
men from ibis mercy.
** In the next place we examined the orders
given by sir Thomas Li'vingston in this waiter^
*r WILLIAM IIL Proc^cdiMgi r^^eaiiig ile MaiMoere &fGkn£&
I
KBd vrere uDititinointj of opinion timt he biil
Tttnion to jjire ^uch i>pd^r« for cyttinjr oft' ihe
Gkiarf>'liicii, , M|>c»n the su|tpo»itioii tl^l l(i«-y
bill r«;^irtt t)iG Jtiik'iiiEi«ty» ftoil wiihimt rr^k-
iillf ibcro JMW oir«ri* of m**fC v, h^iiig^ a tbin^
if} itseif l^wtul, vf]mk ynpr' iwajesijf mi^bt
1*4 ve «>ni<^r<^ % hni it ap[»eaj"ioiar tbat sir
ThofpAs *^»ft ibcn iirnoFaiil of \Ue i*eciilmr <?ir-
cumsiivticie^ i»f tii«* Oter-^^fr-meu, lie tui^^bt ttry
well u»iJ«riUiHl yotir miijt^ty'i inslruelions in
IW re«tncied &enae whicb Ibe m&i^ter flfHtaiP*
letters bail ^ivcn ttkf^m, iff tmikriUnd tbe
ma^rr of Siair's Uuers to be v our majesty *«
iiidilmoat pt^j^iirc, as it h ciriitCent bt^ ditl by
tbe firilenj \>livch he guve, i»ki«)f« ftQ}' wtdUi^n
thut is to be foiiiitl in litem t9 yotir majeist^y
lastruclionv, m ^\vtn Dc»t only In ittir nitiilisr i^f
Stftir*8 MUSi', but in bis wt^rih.
** W<« pror^ewleii to exfttitine colonel HiU*s
pttrt of tU(f bu^iiJi^^t iiud wine itoanimoiti tbtti
be «as cleit anil fi^^^ of tbt? i^laugbi4?r of the
C1«ni^>in^ ; for Utoii^li yonr ii*ajwiy'« in*
utmetbui, ami tlt*^ mazier <»rSuir» letters wer*
B<fit •iraif IKirn l/»iidoii to him « as ur ell m m
m Tbwma» l-erinf^tiiii, y*M be knowimr ibe
jwc^nliar eircuin stances of ibo Cileiico-ni^R
■biintietltcf execiiie tlitm, aud pav^i* no onler?* in
Ui« iA»Uer»titl borb liiue a^s ktKvwin^ that Uiat
[|lilliiiftl}i-c«}lonel bad receivi^d ordent to laki«
Willi bim -UJO oien of bis garri^^nn and rcginivtnl^
b^t Ifiiiife bi»owii honour artfl authority, gave
n ffwii^rvl order to liiitviltoo* hi* Ueuteniint^
($iilftii<l, lu take ibe 40(1 nieOf and to {loi in due
ifiiecuttuti tbe orders which others bad giiren
him.
'^v Lieutenant- colonel Haictilton^s part cnme
next to be eon^Fidpred, and be hewing required
to h^ presenl, and calU d, and not appeAfiof , we
Ofderetl hiw to lie deiaouoced, and to he seized
on w beret cr he could lie found ; it ml having
4^<oiiaader^ the onWfi that he received, and the
orders which he ^ard betbre the comkuie^ton he
jspiTe, and hi^ Kb are in the execution, vt^e 3gTt«d
Ujftt from what aji^ieared, he « as not clear ^f
tike mnrdt^rof the GlcucO'mcn» and tliM tliert*
was ground lo proneeute hiiu loriU
** Siajot iloociuion, who f«oeiTed orders from
HamiboUf beins: in Flanders, as welt us Ihose
lo whom be ^\t orderfl» we could not sec these
ot4erf( ; and (berefore \we only ri^elved about
biro^ that m e T^hould address to your mi^eatyf
dilicr to cause him be examined there in Flan-
ders atmui the ordf^rs he nxt-ivctt^ and bi« koow-
ledge of tbiit &AUir. or to order bim home to he
proven ted therefore ^ as your majesly aball
ibink iiL
^* In the la^ pl^ce, the deposit ion^ of the
wituei^&4.'^ \^eit^^ cle.ir, a« to the ah&i'e whirh
4^apt. C'rLDiphel of Gk^nlyon, tapt, [Jrmnnwnd,
Uautcr^nt Lmd^^y, ensign Lundief and i^er-
jeatit Barber bad in the execution of the Gleneo-
luen, upon whom tbev weri* qutnlcred ^ we
^(ree that il appeared thai the atid per«otis
mMswfwn
krdiafji
wtii e iho actW!t Lit ilia slan^^^t^'' ^ ^be Oicnat-
iu«^ under trust, and (bat we sb<>utd addr?«
yoiir nnaj««ty to send theiti beime Ut ht itnm
cnted for lb* aa,me accord in^j tn Is w .
** Tdk bdog the Biaie> *^ tb^t whole inatier
as il bet befiim u^, and wbich, l(>getber witli
the rr^lt^rt tnkn«riUitiH} lo your n)^j«'9ily b? tb<
coinnitsfiorier (nod whicii w« sftw trnlwl)
g^vca hill Tigiit to it ; i^e biiichty Ut^^ tbit ton*
fcideririg ibAl tb#? uia'ilor^d Htair'n cxce^i io ha
tetters against the Olenr.o<RieQ has beeci iba
orifpnal caM^e of ihi» unhntii^y bttnociiy bi4
hath gt^en oeeaiiion in a ifrval n^ett^mv to m
extraardinatyan exw!«tiotn by the w-arm direc-
tions be^ve^ aiK»tttdoin;r H by ^'^y of irvr{tn2e ;
and considering the hijfti Jitafioii and truii be k
in^ and that be is absent, (te do Iherefore bef
that your maj^ty »iH pvo^ aucb ordirr^ «%«ii^
bim toi' viodicaUon of yuur^oTernmriii, m$jm'^
in your rivftl i^is^lom tfball ihink fit.
** 4ud iikewiw; «tiUKideriuj^ ibaJ the adort
have harbaroufjjy kilM men umler tritvi^^e
bumldy desire y«nr raaj^ nty would be p«a»f4
losiend l\w nctora home, nnd lo give ord^rf ttt
ynur advo<;&te to |»roifeciife lU^in accN^rdis
law 'f flier*? reuiamiOK nothing eU** to
f^jrth" full Tiodication <>f your |^of^«niii
wo Uml and eifrandatun^ uti uApersioii m
lain under iiuon ihtn ocr^Kioti^
^* Wedtati oaiy add« that the roHi^iQa^tb
Glcnco-men, who escarped \hc stau^bicf, Maf
red need to great poi'^rty by the depnd&lim
and va:uttktion that wa« then oouimitted npoa
them, end harinir c^er !iinc« lived [i«aoeably ua*
deryoiir majesty ^s pi-otertirn^ tiare now applieJ
to u« that weinighl intercede with yoormajisrtT,
tliut some reparation nmy be made thetu nt
their lo^cs* We do humbly lay their ca««
before j^onr mtijcst)'| os worthy of yonr rojil
cimrily and compassion, thut sncU orders m^
be ifjvcn for snpplyintr thi.'in in tlieir oecw-
sities, as yonr majesty ^h^ll think fiu
^* And Ibis the most bnnible Addresar of \U
eitotes of jtarlianient i«t, by their ordor and war-
rant, and in their name, sub^crib^ by, may ii
fdeaae your majetty, yonr rnajestVa n»*^
itumble, mott obtilieni, and roo^t faitlifid «qI)-
ject and servant, ** A^fsawiMLE, P. P/*
^* July 10, ica:>- This Addreas
voted and approfeu."
Thc'ti it wa^ recommended to his majedy't
eammiasiooer, lo transimt to tbo kioif tlw itiit
address, with duplicates of the kioj^^^^ inslrof^
tions, aod of the master of Sioir':« ktteri^,
Movei^ That tiis maje^y's eommistioofr
hsv€ ibe thanka of the parhameni for tayii^^^
the di*co*rery noadtv of the matter of Gfenco
before tbem, and that the comtniasiooers baTt
the liko for iheir earefnt procedure there in |
which being" pn* to the vote, approve^ or aait
carried ill th€ a ffi rni all v e, nemi nt c&n ttadtCfnit |
wbieb his majesty's cominis^ion-er acc^ple^d of*
17J
Proceedings against Thor,ias AikaiheatL
A. D. 169G.
t9IS
01. Proceedings against Thomas Aikenhead^ for Blasphemy:'
8 William III. a. d. I696. [Now first printed from the
Records of Justiciary in Edinburgh, and MSS. .the property
of Lord King.*]
UKU JusTicfARiiE, S. D. N. Re;;is lonta in
Pretorio liury^ ile Edinbiirs^li, vi«jftsiiiio
terlio die uieiisis Dcceiiibiis 16'J6, per lio-
ooraliiltis virus Adaiuiim Cockburae do
Ormistoune Justiciariiini Clericuni, l)n-
iQioos CoHduih Campbell de Aberucltill,
Uavidem Hume de Croceri^, Joanncin
Laoder de Fouutainkall, et Archibalduni
Hope de RaDkcillcr, Cuuimis^iunarius
Justiciarij dicti S. D. N. Resist.
Curia lej^ittime afiinuata.
Intran'
Tkomta Aiksnhtadt\ sone to tlie deceast
^MBi0% Aikenhead, ckirurj^D, in Edinburgh,
ID the Tulbuith thereof.
lOU are indyted and accused, att the io-
taoeeof sir Jaiiieti Stewart, bis mujesties ad-
ocat for his hi^^hnes interest, and b^ special I
rder of the lord) of his majesties privv coud-
iBy that where by the laws of God, aud by the
* These MSS. for the nso of which 1 nm
idfrUed to bis lordship, appear to ha^e belon^tMl
ft the great Locke, the maternal uncle of lord
baiicellor Kitij;.
t (* No counsel appeared fur the pnsonev»; nor
DCS it seem tbatoou word was ur^d in his bc-
■If during the course of the tnal. Four or
te witnesses were examined, one of tiiem a
"ritcr in £diiibur{;h, the rest students at tlic
ffldferntyy lads from ei^^hreen to twenty, or
venly-ODe years of a^re. They proyed most
r the articl^ of tlie lilMel, wiih this addition,
Mftthe priaoner said he was confident Chrit>-
aotty would be utterly extirpated by the y^^r
800. There was however a mateiial «iefect
1 the eridence. The article most hi^^lily cri-
unal, Til. the railing against Gotl, and cursing
V Saviour, was not proved at all, but was an
« drawn by the jury from the prisoner's
Bzra, and saying that the inventors
f the tcriptural doctrines would be damned, if
hoi be such a tiling as damnation.
"^TIm iuiy unanimously found the pri-
iwr gnihy of railing wunst God, railing at
iid eoniB^ Christ, and of the whole other
ktidti in toe libel. This verdict t he jury , even
9 the atatute, were not warranted to pru-
—IMJ. The railing against God, and cursing
IMt, Mffht to have bm tacts directly proved,
^B0l iitferencci drawn from cursing the in-
if acriutoral doptrinea; and as for
inv of UMpersonsof the Holy Trinity,
tOMdMiiil, batobatimlriy peraistiiig
lawes of this and all other well- governed
Christian realines, the <:ryme of blasphemy
against God, or any of the persons of the blessed
Trinity, or agaiust the holy Scriptures, or our
holy religionc, is a cry me of the higli«>t na-
ture', and ou^riit to be sevrruly punished:
Lykeas by the act tif parliament, iirst parlia-
mciu Charles 3d, act 21, Intituled, act against
tliu cryrne of blasphemie, it is statute and or-
(laiuedj that whosoever nut being ilistracted in
I his wit;s shall mill u|»on or curse G^kI, or any
of the persons of the hi tossed Trinity, shall be
pi-uceshed before the cheitc justice, and being
f<)und guilty, shall be punished with death';
aud by 1 1th* act, d session of the present cur-
rent liariiamciit, the ibrsaid act is not only rati-
Hed, but it is tarder statute, that whosoever
bhall in their wry teing or discourse denye, in>-
pugne or quarrell, or argue, or reason againat
the being of God, or any of the penMms of the
blessed Trinity, or the authority of the holy
Scriptures, of 'the Old and New Testaments, or
therein, Mhif;h by the statute subjected the
offender ti> a capital punishment.
** iicsides these defences, had the court been
endued with the humanity to ap|>oint counsel
for the prisoner, it wo:iid undoubtedly have
been pled for him, that these were rash words,
drawn from him in the heat of controversy,
which by no nieaus coincided with his serious
notions; and that he heartily repented of
tike warmth which betrayed him into expressions
so dissuiiant from his own sentiments, bimI so
offensive to Uie feelin<:s of others. — Had these
defences been ofleivd for him, tlie jury could
not, without being giuliy of |*erjiiry, have con-
victed him of obstinnieiy persisting to deny tht
Trinity, which the statute requireil." Aruot,
326.
According to Arnot the ful lowing passage
in Fountainnall relates to tlie father of this
Thomas Aikenhead :
'* April 20. James Aikenheail apothecary in
Edinburgh is pursued before the |>rivy council,
for selling poisonous aud amorous drugs and
philters to provoke lust, whereby a wnman had
narrowly escaped with her lite,' had \wX doctor
Irvine given her an anliflole. I1ie fnuncil re-
ferred the trial and re|NH't thereof to the eolle
of physicians, . as being pcriti in arte ; -
thought such medicaments not nate tu be gnt
without first taking their own advice."
Of the case of this man, (mUcalled Aikoo)
there if a short report in ftlacJafirai.
le eoilego
te ; who
* be gi^W
919]
8 ^VILLIAM III. Proceedings agahist Thomas Aikenhead, [920
covei
the worlil, slmll for the first fault be punished
ivith iiuprittOiiQient, qv, and while he ^?c |)ub-
lict satisiactiou iu sackcloath to the coiig^reg^-
tione witliiD which the scandall is committed ;
and for the second fault be flyned, besydcs his
Leingf. imprisoucd as above, and lor the thinl
should 1)0 iiunishcd with dealli, as ane obstinat
Uasplicmer : Nevertheless it is of verity, that
you Thomas Aikcnhcad, shakeini; off all fcur
of God and re^^ird to His majesties lawes,
hare now for more than a tweh'cmonelh by
past, and u|>on sevcrall of the daycs within the
said space, and ane or oiher of the same, made
it as it were yonr endeavour and work in sc-
Terall compainies to vent your \t icked blasphe-
mies agraiust God and our ^)ilviour Jesus Christ,
and aij^ainst the holy Scriiitures, and all re-
▼ealletl reliju^tone, in soc tur as upon ane or
other of the daycs forsaid, you sriiti and afHrm-
ed, that divinity or the ihictriiie of thcoloj^ie
was a rapsidic of faipitd ami ill-iuvtntcd uuii-
sense, patchcnl up partly of the morall doctrine
of philosophers, and pairlly of pucticall (ii'lior.s
and extravagant chimtras, ur viords to this ef-
fect or purpobc, with se^erall it\\icv such Vf -
prouchfull exprcHsions; Lykcus you scoti'tid ut,
and endeavoured to ridicnU:luetii»ty scriptures,
calling the Old Testament Ezra's' fables, by a
profane all-.ibiune tn Em>]i*s fables, and saymg;
that Ezra nas the iuvcnter thcrof, anitlhat
beings a cunning man he drew a iiuuiber of
Babylonian slaves tu follow him, for whom he
made up a feipned p^envalogir as if ihoy had
been descciulcd of kiiif^sand [iiincvs in the land
of Caniian, and tlicrby impo:>iJ ujton C'vrus
who was a IVrsian and t.lran:;tT, peisn.ulin<4-
Lim by the devycf cif a pivU;iidit prophecy
conci!rnini>: hiuibelf ; and as fur the New Tes-
tament, YOU not only scoif at it, hut in your
Itcnfling (fid must blasplif.nmiNly laill upon our
l^rd and S.niour .Itsus Christ, callingf the
said New Testament the Hist«>ry of the Im-
])Ostor Christ, and athriiiln;; him to hu\e learned
inaj^rick in Kuypt, and that couiini;- from Ej^y pt
into Judua, he piekcd up a few i;;aonint l)|(»ck-
ibh fisher fellovts, whom he knew hy his skill
anil * phiso;4itomie, had strouj"- ima;jinalions,
and that by the helj) of exalted imaginatione he
playM his pranks as you Llashi)hcmonsly terme
the working of his miracles: L\kcas ^on af-
firmed Moses, if ever you say tlier was sueh a
man, to ha\e also learneti uiairiok in E;>fypt,
but that he was IkUIi the better arteist aii<l
better politieiau than Jesus; as also you ha\e
cursed Ezra, Mose^, and Jesus, and all men of
that sort, affirmeing the hol}'^ Scriptures to be
60 stutfed with maddness, intn^ensi-, and con-
tradictions, that you admired the stupidity of
the world iu being soe long I'.eluded by them :
Lykeasyou reject the ujyster\ of the blessed
Trinity, and suy it is not worth any man's rc-
^tation, and you also scnlfe at the mistery
ofthe inairnatiun of Jesus Christ, aiiirmiug
bU&sbpheniOusly that Tlieantropos is as great a
So iu the Original.
coDtradictione as. Hircns Cerras, or a qoadn-
tum to be a rotundum ; and as to tbe doctrine
of redemptioue by Jesus, yon say ti rs a proml
and presum|]tuous devvce, and tnat the inreo-
tars therof are daiuneff, if after tbis Kfe ther kr
either rcwaird or puoishineDt ; you also deny
spirits, saying that the notion t.t a spirit is a
contraiiiction, and you have maiotaioed that
G(h1, the world, ahu nafture, are but one thi.-:;:.
and that the worhl wasfrom eternity ; andv^Hi
assert that man's iroaginatiooe duely exakei
by airt and industry can «lo any thine, evfoiH
the infinite power of God : y ou have Tykaayii
in discourse preferred Mahomet to the bksM
Jesus, and you have said that you hoped torn
Christianity greatly weakened, and that ymi
are confident that in a short tyine it will bent-
terly extirpat, and you have been so buU in
your forsaid blasphemies, that when von biic
found yourself cold, you have wi died to be ia
the place that Ezra calls Hell, to warine viMir-
self there: anti these blasphemous nuhnp
aiul expressions in the words above srttiloini.
or words to the like purpose, you haie vui-
odiy uttered in sevcrall couipanies without t!t'
least provucatione, but nwerly prompted by m*
irreligious and devilish malice against Gua«:ta
our blessed Saviour, and the mo.st dmcemii-.:
trnihs of the holy Christian religion. Bys!)
which, it is manifest, that you are gailty iJrt
and pail t of horrid bbsphemy, railliug apiiiHl
and cursing our Lord and Haviour Jess
Christ, and impugneiug and denying tbe trvtb
ofthe holy Serijiiures, and the quarrelling and
argucing against the l>eing of God and a^aiod
his pro\ideuce in ma.. nig and governing tk
world, wiiich being found by the \erdiot ot'ao
Assize, you ou^^lil to be punishtd by death, asd
the vjntiscation of your moveables, to the ex-
ample and terror of others to c(»mmiatbe hio
in tyme coming.
Sic SubscriOitury J a. Stewart.
Pursuer — Sir James Stewart, bis Illajc»tirt
Advocate.
My Lord Advocate pniduced an act of coun-
cill tor pursueing the pauual, wherof tht iCGar
folio wes :
Act and Rtmitt of Council for pursuing Tk^
was Aikvnhead before the Lords of' Jmlititry
J'.;r hiasphewt/y ^C-
EiOiNBURfiii, Noiember 10, 1696.
The lybell at the instance of sir James Stew-
art, his majesty's advocate, against Tliooii
Aikenhead, sone to the deceast Jame;* AikA-
liead, apothecary, for Blasphemy, being thii
day called in presence of the lonis of bit IM-
jestie's privy council, and the lord advocate «i
sir PatricK Hume his majesties sollicitor, ooa-
l>earing personally for his majesty's iDieicHt
and the defender compearing also pcnoaafci
the ly bell and answers therio beinip raad,li>
saids lords of his majestie's privie couacill btM
remitted and hereby reniitts tbe Mid ThomM
Aikenhead ddender to be punuad bcftrlli
21] for Blasphemy.
if4toomnii8iioiieri of his inajeitie's justiciary
IT the nid cry me of Blasphemy, and appoynts
Be nid lord ad? ocate to intent and prosecute
be said proccfls against the said Thomas Aiken-
oialyfe: extracted by me.
itadfor
Sic Sfuktcrlhitur^
Gilbert Elliot,
Cls. St. Cons.
iNTERLOaUCTOR.
The loffdsjostice clerk, and commissioners of
naticiary, having considered the iiidytmeut
pursued at the instance of his roiyestic-s ad-
i9Cite affsinst Thomas Aikeiihead prisoner,
tbey ffind the cursing or raillein^ upon any of
Ike peraooes of the blessed* rehvant to iiiferr
the peine of death \ and ffinds the other crymes
Ijkdled relerant to interr an arbitrary punish-
ment, and remitts the indy tment to the knovir-
nAgt of the Assyscf
Sk Subtcribitur^ Ad. Cockburn, T. P. D.
* So in the Record.
+ It appears that Aikenbead before his trial
ndeavonred by the following Petition and Ke-
nelioo, to prevail upon the Court of Justi-
atry to desert the diet ogainst him :
Coto the right hooouralile the Lord Justice
General, Justice Clerk, and remanent
Lords Commissioners of his Majesty's
Justiciary. The Supplicatiou of Thomas
Aikenbead, now prisoner in the Tolbooth
of Edinburgh.
** Hombly Sheweth ; Tliat your petitioner
a indicted and cited to appear before your
ijps to underly the law tor the ciimescon-
iMsd m the criminall indictment raiseil against
IK, and which crimes therin contain^ are
Msdioas and abominable inthemselfs, that I
ii iut only from my very heart abhorre and
idat them, but I do tremble ^d abhorre either
to repeat the samen myself, or to hear the
woea repeated and objected against any person
born of Christian parents. And theretore yuur
petitioner doth witli all humility and ingenuity
if|Mewnt to your lordships, that he doth rui^e-
iMiibly acknowledge it to be his greatest hapy-
IMS that he was bom and cducat in a place
vbeie the gosf^ll was professed and so power-
Uly and plentifully preachi'd, upon a tnie im-
pisvmeot of which benefite he doth truely be-
Mfe the salvation of hisimmortail soul doth in-
irriy depend. (3.) I dq firmly believe the im-
BMrtality of the soul, and that tlier shall be a re-
■TMUioa of my body at the last day, at which
mt they shall be again united, and there •
Aer cither made eternally happy in heaven, or
<hai ■ ise coademned in everlastmgand endless
to Mima, (3.) 1 do firmly own and lielieve in
\m OMty and Trinity of the Godhead, and that
bar M DO aalvatkm to be expected otherwise
■B kj tiie blood and merits of our Lord and
■nBor Jeans Christ, and by a firm believing
riraiyiMT upon the aamen. (4.) 1 do also
■fcnaM intfcmioualy believe the scriptures
r Iht OU aM New Teatan^ent to be cannoni-
il, MiivritanaMldifllaied by holy men io-
A. D. 1G96.
ASSISA.
James Bowden, late baillie, of Edinburgh.
George Clerk, late baillie, there.
Michacil Allan, late dean of Gild, there.
Charles Charters, late baillie there.
spired by the Holy Ghost, and to be of divine
authority and set down as a rule for our obe-
dience and iatlh, and by believing whereof a
happy immortality may be obtained, and no
otberways. And I do also believe, and assent
to the whole other principles of our holy Pro-
testant religion, such as the celebration of
baplisnH and the hol}^ sacrament of the Lord'a
supper, as truely institute and ordained by our
blessed Saviour, and thereafter practised by hia
holy Apostles ami their successors to this very
hour, and that the said sacraments are to this
moment celebrated with the greatest purity in
our reformed Protestant churches in Brittain
and Ireland.
'* All which premises 1 do not only own and
acknowledge to be the true grounds of my own
faith and beleif bat that I am obliged to own
and mantain the samen albeit with the hatard
and loss of my life and all thincfs earthly, and I
do believe, own, and acknowledge tlie haill
heads of our reformed religion, contained in our
confession of faith as approven by act'of parlia-
liaq\ent. And I firmly heUere that in case I
should hapen to de|»art from a true belief of tha
premises or any part thereof, the just punish-
ment due therefore could be no less than the
etemall mine and tormenting of my body and
immortall soul in hell for ever, as is threatued
by our blessed Lord and Saviour in his holy
Evangells.
«* This being premised, it is furder represent-
ed to yodr lordships, that denying the haiH
articles of the indictment raised against me as
they are lybelled, so whatever ezpresaiooi
mii^ht have escaped me relateing to any of the
articles in the said indictment, the sameo was
uttered or expressed by me not as my own pri-
vat sentiments and opinions, but were repeated
by me as sentiments and opinions of some athe-
isticall writers whose names I can parliculariy
condescend upon, and whose books 1 did rs-
oeave from who is not only insert in
the list of the witnesses to be adduced against
me, but was the cheif and princinall instrument
who constantly made it his work to interrogat
me auent my reading of the saitl atheistiodl
principles and arguments therin contained, and
of which I am now very sensible and heartiiy
aory tor: and am convinced that theae books
are most villanous and atheisticall, and ought
neither to be printed norezpooed to public view:
but I absolutely deny that ever the exprfisiiOBa
contained in the indictment were uttered by me
in the terms lybelled, at least that ever they
were apoken by me as m v own privat opinions
or sentiments, but that whatever ezpresakNi^I
had relating to what is lybelled, wera only ex-
pressed by me as the argumenta, set down m the
said athcuticill books, which had nnliippily
923]
8 WILLIAIM III. Proceeilinfrs against Thomas Aikenhead, [924
Robert Forrester, late Kirk theasurcr there.
Adam Brouo, latebaillieof Ediuburj^h.
Alexaodcr Thomsone, late deacon con-
▼eener.
Jerom Kobertsone, peririg-maker, there.
James SK^lurg^, late dean of Gild.
Patrick Thomsone, late thesaurer.
William' Pattoune, late baillie of Edinburgh.
Robert Elphinij^toane, of Lopnes.
Cteorge Mossnaian, stationer, there.
George Fullertoune, of Dreg home.
James Dunlop, merchant, in Edinburgh.
The assyse lawfully swume, noe Oijectione
«f the law in the contVair.
Five persons summoned on the jury refused
to attend, and were lined 100 merks each.
His Majestic^ s AdwKatc fur probiUioii addu-
ced the witnesses afU'r deponciug, tiz.
Mr. Adam Mitchell^ student, in Edinburgh,
aged twenty years, not niarrieil, purged of ma-
lice, prejudice, and partial councill; de|M>nes he
has bein severall ty mes in company with Thomas
Aikenhead, panuall, when he heard him affirmc
that divinity or the doctrine of thccdogv was
ane rapsodie of feigned and ill invented non-
fallen in my hands as suid is, and seing 1
was at tite time lybcilcd minor, and as yet am
80, and under age, and that I do perfectly de-
sist and abhorre the atbeisOicall expressions
lybelled against me, and do truely believe the
articles alh)ve represented as the true principles
of my faifh and religion, and urn ooutenV to
testify my surrovv aiiil remorse to the world for
my lonnVr rscijis as to any thinir contained in
the inJiotmcnt. impeintr Ity the blessing and as-
sistance of our bli'ssi'd ISdviour, nut only to be
delivered from ail siicli snares and temptations
in time t'cniiii^;, but lik(>tvise to lead a life sute-
able to the <^osi;ell and tlie expectation of eter-
nal life, tlirouuh ilie bluod and meritK of oiu*
dear and only Sa\iour.
** May it thei-eforc pleas your lordships se-
riously to consider the premisses, and to have
compassion on my young and tender }ears (not
being as y*t m.iior)*aiul tiiat I Imve been ko in-
nocently lifiraj.od and induced to the leading
of sucii alhiMMical bonks, and aOer rt.uliii«;
tlirrof, lK-ing('\i'oijMi:i-ly iuiposeil uimhi ti» tjiu-
an a(XH)unt oi ihc aliominahle an I ;it:ii*istic-a!
prinripU>s oo'.taiinil und :i*s. rt u! in llioni, and
th;*i I do triifly (»\vn tin Urn- I'rotovtuiit ri ii;^ion
as the onl\ imans ai.-l w.iy to ♦t;'rnal liii- and
happyncvs, and d<» aiiiii'irc all aiiici^Ucnl priu-
ciplc^K, and otli(.r*> whaisot^or ixwy \\\\\ contrair
tlierlo, and a-.i n iilvri! hy the as^i^lan! <' of
Almighty ivoil lon^l.c my aiilion* net' of u hat
is CffutaiiH d ill the s:iid ivUI!, apji-ar to the
world by uiy sulisi ^jurnl ;it»' and foiiwrsali.pn,
and in icspei*t<>i'iii\ s:tid niin>*rii\ a:)il n »'i a^c,
and what is a!iO\c i('|iri'S( ntcil, \i.A X\t\*\ \W\, is
only the 1ir4 time, tiiai ever I u:->o t{ii.>iioiiiJ
upon such an arcomit, to dv:. a tln' liyH
against me. And your petitiuiitr :;hall ever
pray, &c." Lord Ring* 31SS.
sense, within the tyme lybelkd, which is a
twelve monetli, and that he has beard him scoff
at the Scriptures of the Okl Testament, call-
ing them Ezra's Romances ; depons that he
heard him say that our Savioar wrought m
miraclrs but what any other man might hiie
wrought by ane exalted fancie ; and speakiog
of Moses, he called him a magttian, and coui-
puring him with Jesus he called him the better
artist and polititian of the two ; depons thai be
heard him deny our Saviour Jesus to be the
sone of God, and that the Apostles were a ctm-
pany of silly witless fisher- men ; and he bearrf
him say that he wondered the world was s>
long deluded with their contrailictions wai
nonsense; farder dcfions, that he has haird
him reject the mystery of tlie holy Trinity, and
that ollner than any other thing; and that
he heard him reject Yhcanthropus or God-Dtiio
as a contradictione, aud it was as alMurJ ui
Hircus Servus, that is a goat and ane bsitiu
one animal! ; depons tliat he lieard him nuu-
taine that man's imaginatione, raised by lin
and industry to a hi{^h pitch, could doe as mud
as our blened Saviour did; and tliis is tbt
trutli as he shall answer to God.
Sic Sa hscribitur, A. M i re ii cu.
Mr. John Neihonc^ WTyter, in Edinbur^ii,
aged near to twenty years, unmarried, wu^^
of malice, prejudice, and partiall council!, surf
solemnly swome ; (lefmns that witliiu tlie tjme
lybelled he has freijuently heani the pannill
affirme that divinity or the doctrine of theolc.nt!
was a cheat and rapsodie of ill-in>ented ivm-
sense ; as also he has heard hi::< fref^ucDM,.
scoff at the holy Scriptures, and lidiinle i::t
Scriptures of the Old Testament, and call i'k^u
Ezra's Fables, and that Ezra was lite iu^ci.c.
of them ; as aUo he has severall times h.r'ii'
him say that Ezra bi'ing a eunniu;; n):i;). lie.
drew a numlHT of Babylonian slaves to iuii>»»
him, fur whom he made up a ici!;:K-! •^•■-..f-
alogie, as if they had bein descendii if l..'.;;\
and piinces in the land of C'auaan. an! ir.'.p!*^!
upon Cyrus who uas a PtTsiAn an«i htraiiuii'<
{lersuadeing him by the pretendit di'iyci* *u a
propheeie concerning himself, and gotl a ^if^^i
(piantity of gold from Cyrus, ami ;;old ir^vliJ
thai Mas never in the t'.'mpk'. upon pnirua
that they had iK'in t;ikin out of the t<:in|ili' il
.Icrusakni, whcras iruely it was not soi»: *k-
[lom-s he has h» aid him scoif at the New Tei-
lament, and atlirine that our Saviour hsd
loarnrd magii'k in I'-gypt, and that coraiD|f
from Kgypt unto Judea he picked up a few
hitK'kich iu:nornnt lisher fellows, whom he Luew
hy his skill in phiNogiioiny had stron;; initgi-
nations, none having strongiT ima^;luatlOMi
than i^rnorant |K.'ople, and that our Saviour bf
his own and his Apostles imaginationes pI'V*
his pran.';s ; he also heanl the |iannall sffir^
tliat ■VIo.-)>*s (ifeverther was such a man) M
also learned inai^iek in £g\pt; depOOi kt
heard the panuall curse Ecfa and aUtheiih
venters of the SiTiptures, and all the ptMMlHi
of them, ministers and others, ami te kv
']
for Blasphemy,
A. D. 161X).
[986
nl him affirmc tbat the Scriptures were full
(-ontra.lictious ; dejious lio has iioanl him
'Till i^niesileny that our hlessetl Lurd was
sonc uf Gml, autl' ailirme tiiat Gorl-niau
s a coutradictiob, and cuuipare Theanthro-
.to a si|uaire triangle, and he has heard him
that if iher was any punishment aiW this
. surely Ezra and his foUouers, whom he
if d Ezrait^i, were dauuied ; and farder heard
n assert that man's imaginationc exalted
•^ht dn: any ihiii<r; and also hcani him say,
It within s\M\\^ hundreds of years the vt hole
irld wmild 1m^ ctiiivijrtcd to Ids opinion, nud
eChriiftiau rcHt^ioii woulil he wholly ruiuetl ;
td dcfiones that he Iirard him say one ni^ht
August Iflst, when he was cold, he wished
be brsydc the place J^zra called hell to
vmc hiiDsclf thrrc, causa pntct ; and this is
It truth as hcKhrJI answer to Go<l.
Sic bal'scnhitur, Jo. Neii.son.
Mr. PaCtick ^fidktoune^ Mudout, at the col-
Tihfeof FdiMbur;;lif a<>'ed twenty years, uu-
larrietl, purgtrd and sworne ; depones that he
iMlttfnrd ihe pnnnall, within thetymc iyhelled,
crcrall t\ mss aflirnie tliat the Scriptures were
£ziaV Fahlr's or UomaiiceS; and that Ezra and
hcJeu("« were a number of TAgahonnds, such
IS ();*>- ptians, Goths or Vandals, and imposed
jpoaOyrus and gott from him gohl and jcwtJls,
iretendinfr that they were hrou<;ht from the
:eaipie at .Jerusalem ; depons he has heani him
sfolf at the S-'riptui-cs of the New Testament,
nilny the history of fhem was a fable, and
Ike ReTclntione was ane alchimy book for fi\id-
inf out the [ihilnsophers stone. And that our
Saiioiir u as a mr:rii.-iau, and did all his miracles
by Lis imapi:.:tti(*!ie, end the lyke could be
•noeliy naiunll causes, and that he choysed
**iJre' fishers that were iiruorant, whoni he
benr It) have strong imaginationes bv whicli
hevrouiiht his wonders; depoi^s that tie heard
hiiDcal! Mu^es anc luagitian, ond that Maha-
■et was hfith flic better p.irtibt and po!i:itian
^an Jesus; and he heard l:iiu curse K^ra, and
Ms heard him say tliat as many pa«^cs ls was
I tlie Scriptures ther was as inany contradir-
KHKi in it ; and heard him say that the Tri-
ilv of tlie persons was a groat contradiction,
la l)kwa}s that the iucaruntion was as gr^'ut
contrail ictione as Iiirrus-C'ervus, and that
ihiutliurs and propagators of the doctrine of
Udeuifitione by Jesus, was the damnedst crew
itbt world, and that they would have the
ion perplnced thoughts of any for ever ; ond
«■ bcmrd bim aflirme that God, the world, and
•tare, are but one thing, ond that the v.orld
ras ffroin eternity ; and also heard him a^si^rt,
iMlmao'a iroaginationc duoly exalted h^y ^irt
nA induiitry could doe auy thiuiX, even ni the
Aiite power of God, and that he hoped to S4e
#kfiiliaDitv gr^eutly weakenr<1, autl that he was
wi^AvnX tbat in tlie year ISOO it wouhi I>p nt-
frty cztir|iat ; depones, thai aliout the niiflle i>f
l^ifct laat, aljout eight o clock at ni<rht, ^^or-
■f by ibe Troa kirk, he hard hiin (bein;r cold )
ij tlwl he wnhed to be io the piece Ezra called
hell, to warme himself there ; and farder de-
pons, that he has heard him say that he could
make himself immurtall, and that the ascention
of our 8ariour was but a progresse to the world
in moon ; and this is the truth, as he sail an-
swer to God.
Sic Stibscribitur, P. Midletone.
Mr. John Fotler^ student, aged 18 years,
unmarried, iiurged of malice, prqudicc, par-
tiall council!, and solemnly sworne ; dcponee
nihil novit.
Afr. Mungo Craig, student, in Edinburgh'
ai^rrl twenty one yearcs, unmarried, purged of
malice, ]>iTJudice, and partiall council!, and so-
lemnly sworne ; depones that within the tyme
ly belled he has heard Mr. Aikenhead, the pan-
nall, scvend tymes afiirme that the studie of
divinity and the doctrine of theologie was a
r;ipsodic oC feigned and ill contryved nonsense,
anil that it was worse than the tir^iones of the
poets, for they had some connexione. but the
Scriptures had none ; depones he has heard him
scoff at, and ridicule the holy Scriptures, an«l
frequently call the Old Twtanient, Ezra's
Fable^<, and that Ezra was the in venter of the
liooks thereof; and depones he has heard bim
revile the books of the New Testament, and
rail them the books of the imposter Jesus
Christ ; and that he expressed it m a scorning
and jeiring manner, and affirmed that Christ
had learued niagick in Egypt, and called hhn
a magician, and that returning from Egypt ta
Judea, he picked up a few blockish ignorant
fisher- fellows who had strong imaginations,
and that by the help of ane exalted imagination
he played liis pranks as he termed our Saviour's
miracles, and that if ther was any such roan as
Moses, that he had studied magick, l>eing bred
up in the king's court, and was a better airtist
and polli'.ician than Jesus, and that he heard
him curse Moses, Ezra, and particularly our
S;i\iour Jesus, and if ther was any punish-
iii(!nt after this life the deserved the worst,
i -id A all the inventors of the doctrine of re-
; dc-mptione ; and he made it his frequent dis-
course that the holy Scriptures were stuffed
Willi such contradictions: tiiat the stupidity of
tho world was admirable in having believed
thrui so long; and farder depones that he used
to rondcnine and rfjoct the mystery of the
Tiicity, and that God -man was as' great a
ccmtrad ictione as a ijuadratum rolundnm^ and
he:utl him call the doctrine of Redemption a
: proud and presumptuous dcvyce, and that the
! iuventers of it were tlumned if ther were any
I punishmcut afWrthisliie ; depones he asserted
i that (jud. the worhl, und nature,. were all one
. thing, and that the world i\as from etemitie ;
and lt::s licnrd him frcNpieiitly assert that man*s
, ima<{ii)utionc du(l\ r\:i!r'tl by airt and in-
1 dusiry inipfht rreat a v.orld, and j>ro«luoe any
' tliii!^ pro,hKroali!- ; <]f r.oi.:-s hr litunl him say,
! 111! hoped to see tMiristiitniiy greatly weakened,
i and sliorily to bo extirpated, and that farder
heard hitn curse those that baptizm(*d him.
anil say that bajitisme was a nw^ic^VVcjwctwsv^^
927]
S WILLIAM IIL PrGceedhtgi ogninst Thomas Aikenkead^ [W8
that tyeJ efailtli'«a*s ime^batioti to ihat r^li-
tficm i»beit0tbey vft-re bajjUieiJ ; anil *urik*r, if
Ee wen luLuifilied, liti YtoM tiinke all Chriit*
fMiiiitji^ treitib-le, and Moulrl wiyte »i^in*r
Cbristmnity, aad that if be or any utlmr oeeitetj
a fatoiltr genius^ be could call lor il ; aiid tbis
11 tbe Initb us h« sball answer t>j QmL
Ad. CocRBUnMEr L R D.
Tbe Tnrtis ortlftinc tbc «s»yse to iuclo^ and
fetiiriiti tbeir verdict to-morrow at twe)t« a
t^Iockf unit #rd«iluee tk« |i&tiiiall to be oaiTj^ed
liack to |>ris<^n.
Btetmber UlK t&^'
Thomai Aikenhead,
iiidyled and accused for tbecryrnc of LTaa*
fbemy cnmuiitted be btni in manner inenlrnned
IQ bit indjtiuenl.
Tbe said day the persona wbo past upon tbe
•ssjae of Tbomafl Aikeubea^l, for blns|*b*iiny,
iiuturfic*d tbdr verdict in prvifence ol' tbe saiU^
Lank, wberof th« tenor tolluwu i
Tbr Assyse baling- elected and chosen
Oeor|ft! Ck'rkf Late hatllit^f their cbancidbr i
mw\ Adam Brown, thfeir^ clerk, *loe uimHi-
mousLv fiad it proven tbat the pannsill. Thorn aii
AJkenhead has rail led a$>aiij£t the (irj^t pcrsonp,
»od at«o cursed and MM our biesisfd Lord
tbe fecond pi^rsorije uf the holy Tfiui°Ly, mtd
fkrder finds tne other crymes lybelleJ proven,
Tiz> Tbe denying of the innLrnutione ot our
Savionrf tbe holy Trinitv, and scofAn;^ at tbe
holy 8criptarf#. Tbi*^ is subscribed by the
ehmicdlar £iod clerk at ibe apjMiynimeQlof the
aliore written a^ssy^rs^ at Edinburgh^ the ^3rd
day of December^ ld95 yeurs.
Sk Subtcritit art Ot^V Lift K, €\m u eel 1 ar.
Am^ BtiovFN, Clerk.
£l\er openinsr and reading of tbe quhilk ver-
dictof A«syse, tbe lords jti<^uee clerk, and com*
Daiasinnen of justiciary tbertbr, by tbe mouth
of John Hiicbie, deiiipsl*>r of court, decerne
and adjudg-e tbe said Thoinai Aikenbead, lo be
taken in the Calovrlee berwixt Letth and Edrn-
burgh, upon Friday tbe eight day of January
next to couie, betifixt tvro and ^onr a clocJt in
tbe afternoon, and there to be banned on a
gibbet ti^l he dead, and hi» body to be interred
at tbe foot of 1 he said gal low », and ordainea all
his moveable goo<b and gptiv to l»e escbent and
inbrought to biii tnajeaty^s use, whleb h pro-
oooneed for d'>omv
Sk Subinribiiurj A p. CocitavaFtfi. —
C, Cam|ibell, David Home, Jo. Lankier,
A. Hope,
Among lord King's MSS. is ibe folloiring
Paper indorsed i " Copy Petition for Thy ma*
Atkduhcady to tbe Pnry Coiiu^eU.'^
a
To tbe nigbt Hon, tb^ LnrtI H(gh €tiaocell<?r.
and remanent Li>rd4 of hr.^ Maijesties wxm
lion* Pn*y Conncell : Tbe Hnpplicaiiott
of Thorn a*i Aiken bead, jfrunni^ k ibc
Tolljoothof Edinbiii^h.
** Humbly Sbeiretb ; Tuat yottr pctiteer
b^^ing wt-ntenced by tbe biu& af juaticbryito h
exeeule>4l uikiu ibe Bib day of January next, hr
doth in all bninibty acknoivledgv tbe jiuticE «f
the said lenience, pronoun^ ai^ttiiwt biiu» mi
that tbe blaspbetutius and irickc^l ^tprt*jmmf
for which he k stiUvtit^xl tfi ti^atb, ougiit b<|.
to be io nmch n^ nftmed, and be doth ingenu*
oysly acknowledge, ibal from bia f ery tuvil lt
prieclly abborm ihe »aune« but yr^iir fieiitjaM
being^ aa yet a ntinor^ and hji> mn^ the mfilar«:i
tue lo hav^ gi»t same aibetstical books
ini^f Icj others in his custody, tbe
wlitreof di<l prompt him tn the^e extsw
fur wliicb be is now most justly
And sein^j: tt hath pleased Abuighty Go4
begin ^ot'm- in ins mercy, to w ork npoti jmg
lietitiom^r'tf oUlured heart, rh to gif e bim sust
sejjsc anil eon miction of his Ibrmer mdui
erruuii;, and that be dotii e^peet throagh lib
mercy s oi' our bk'ij.^ed Jfsus to he dayly torn
and mure con^iucctl thereof, and that he hth
intirely rely iip^ti our blf#s;ed 8av]<»ur'i diyktb
and nmita for the &aUatLou of bit ImmMyi
liuul, and that if time wej-e allowed, be da&ei-
jiect throu^'b ibe meritii of J«^tis. hy atntert-
mnr!!^ nnd re'peotanc^;^ to W yet r^condkd to
bisi ojfended God mni ^vinur.
" May il tlierfore [deoa your lo^ps, for God'i
sake to cim^der and com passion at my depiitt-
abJe rircnnjitances, and lender years (1 d^iu^
as yet mmor), and lo prorogat the day appwrit'
ed for my exeeution, for sucb time as your by
shall tbmk 5tt, thui I tnny have tbe opjwrtu-
Dtty of conreraicig with godly uunistens m tbe
place, and by their fts&ifitance b« more |>r«fiiif<i
for an eternal r^t. And for his sacred wr-
jesty and your lo'ps bappines and ^d^^j
your petitioner shall ever pray, &c***
The f>iIokviug Letter, (among the uiie
MSS.) cont^inin^ Observalioti^ on Ajkenhtf»il'i
Case» appears to have been written by Mr
Locke to his friend sir Francis Masbam.
" Ltmdant FtL 3r, iG96-7.
" Sir ;
'^ You have eDctosed (to patisfie your cv^m-
sity) the evidence against Aikenbead^ and two
of his peiitiuns. Jf tbe process come« you aliall
bare it, or it shall be le|\ where you shull order.
The Flying Post bore that he bad not relractd
till tbe day of esecntiou, ^ihicb you ^ee if
fal^e^
*' Tbe iirat act of parliament in Scotlaaii
against blitspbemy is acX 2t pari. 1, m^. 1,
Ch. Sd, anno 14}61, wbiib hai tiro urtictei.
By the Hrst ' Hailit^ ujKint or ctititLiig liod, or
* any of tlie personsiof tiie Tnttiiy i> punisbable
' with death/ the^ are the worda, and hera
retracting araiieth auUiifig, Tbe atu artide
is, lliftt * Derri'ln^ GofI, or any of the personi
* of the Trinity I Qml obstinatly coutiuueiDg
* fbeniif is |iiinisKab)e with deallK'
'• The next act is the lltli i>f TwceJdal's
session of parliamentf two yeai-s aprot\ ami was
obtoincil by trick and Kurprisc. It rtiliHes the
r acCaiitl add«» that ' Whether by wrilirig:
'dUcoufse, to deny, impug"nej ^iittrrdl, ar-
ue, or reason ajyrain^t the \wlt\^ of fiiKl, or
ny (»f the persons of the Trinity, or the au-
bority of llie scriptures, or a provideuce^ is
br the first fautt punishable with tmprjs*m-
nent, till they retract in sarkeloth in the
jiurcb, Ifor the socond) with iai prison uient,
ad a year*s rcrtt till as in tliii first cnse^, and
' the third, they ai'e to die as obstinat hlas-
liemers.* 80 that relraeting' altet' the third
iltg'p^uifvs nflthi^^^
It is pfiiin Aikcnhead must hare died by
t first act, since it was his first fault, as he
jelf ple^d«i in hb$ petition, and that he did
actf which delivers bint from the second
article of the first act Now the wonis of the
first article bein^ * railing'* and ' cursing,* no
Evidence except that of Mr, Muntjo Craig's (in
]iich lie iii said to have called Christ an im-
itnre) seems to answer the meaning of those
d^ and as lo ihie» Craig^, Aikenliead in his
ch, in which he owns other thinc^s^ denies
i evidence! and no doubt h« is the decoy who
ive him the books and made !iim speak as he
id, and whoate name is not put in tiie copy ^^
^fae petition to the jnsticiary sent to yuu, be-
^pose the writer would spare Craig^.
^** The age of the witnesses isol^rrvabl<»,and
that none of them pretend^ nor is it laitl in the
ipdictiuent, that A I ken head made it liif> biisi-
seas to seiluce any man. Law» Ions; in de«sae-
tode should be g'ently put in execution, and the
first example made of one in circum$:lQnces that
deaerfe no couif^^ioi^ wtiereas here tber is
ymttb, levUy, docility, and uo desigtie upon
otliers. Farewell.
** My respects lo my lady Masham.'*
/5
Among the stme MSS, is the following
Iter iadorscd ** L. Anstrulher,** uud addres-s-
*^ Mr* Robert Cuuta^bam, to be left vrith
AUeiander Jonstonn,''
«* Ade^, Jan, 7$, —97*
" Sir ;
, ** 1 hope yon will pardon me that I hav not
>it to you these several posts, for 1 hav been
j>t mof e bu-sie than ordinar, by the/requeut
etiutf of eschequer^ upon the talliag short of
\ fondi. J thank yon heartely for the trouble
ii bav put yourself to, in gfiveing me account
Tuhai cannot be known by publjck neues. I
I afraid U will look like too much imposing
DD your ^ood nature to desire a continuance
Til, espechially when I can propn no com-
pcosation, this being a place sciirsly known
ibroad, and in publik transactions folowing al-
iTftysthefate of I ngf land, but for my part, 1 would
a>Dtribute to be at the expeuse with all my
VOL. XJIL
liearl for a plenipotentiary at the treaty of
peace for this nntione ; indeed the fittest person
1 know, would be your fViend Wr, Jonstouu, I
wish it had been moved last parliament. To di-
vert yon with somt! remarkable thin^fs fallen
out of late, it i)* confidt?ntly asserted here, that
the river of Clyd went dray for 1 i miles, so that
children went o?er it, winch ran %vitf^ a most
i m pel uonpj current immediatly before; I doe
think Ibis must hav fallen out' by some chasi
in the earth, into which the river hath run.ini
some stdjtcn-anious vacuity, till which time Ih
was filled up it could not return to its form'
course, 1 am told it was once so heft) r, V
doubt not yoy hav heard of a gentleman V
daugbttr in the west, who t think 15 possesied
with a deviU and continues so sfill, she it 12
yeers of age, her body it put into s1ran*^'c
shapes, and instantly peifectly well; she vo-
mits hot coals, stons, iron, hair, bones, et cet,
**Minitinie ago, I Henl up an exact account of
this, altt^stcd b^- ministers to my Lo. Tullibar-
den, which you may rail for if you phrase : we
had latly an anomtly, and monster of naturcr
1 may csill him^ who' was execut for cursing
and revihng the persons of the Trinity, he was
18 yeers of age, not vii-iouR, andextrramly stu-
dious. Fountionehall and I went to him in
prison J and 1 found a v%ork on liis spirit^ and
w€*pi that ever he should maintained such
tenets, and desired a *thort repricv, for bis eter-
nal I state depended upon it ; I plead for
him m counsel, and brought it to the chaii
vote, it was told it coidd not be grim led unle:
(he ministers would interced, I am not for con
suiting the church in slate aCTairs, 1 doe tliin
he would have proven an eminent cbristia
had he livrd, but the ministers out of a pio
Iho I think ignorant zeal spokand preached fof^
cuttii^g him off. I find capital puuishments
inflicted most against crimes that disturb the
society anil government, and not again^it the
iieinusness ot the sin against God, tor layers
say * Salis est Dcum lubere ultorem ;* and
stealing a sheep when one is hungrv , or speak-
ing against the K. er punish'J hy dealbi
wheras cursing, lying, slandering, drnnkcness^^
Pt cet. are scarcly taken notice oi' by our la
but our ministers iy!;eneralv are of a narow si
of thoughts and confined princi[de$9 and n-
able to bear things of this nature. I hav sei
you inclosed his s^iecch. 1 atii ou all occa-
stoDs, Sir,
** Your most hnmUle servant.'*
The following two articles among the samn
MSS* are written contimiously, and iodorsetf^
** Aiketihead^s Speech, and his Letter to hii
Friends, 1697:"
Thomas Aikenhead^s Paper,
{Th% words betwixt crotchets are ftdde4 t%
make the sense clear.}
Christian People;
Verity or truths ^entmlly in all things is
qaality tnost appetable, but especially itk taut-
30
inucb and seriuus rGasouiiijrs, aod ponderings,
[ufton] 1 coucluded [for] the negative. For I
tbuug^ht first, that a threat part of morality (if
not al!) proceeded » fx vibitrio Uotiiinum,' as
thatorkiii;fdoni'<, commouuealtljs, or what the
most part of intn think coiivenitnt lor such ami
such end« uiid purfunies, wl)ich doth only c<ui-
tlude for such tiids, and these enrls are always
teruiiial upon beinjif * naturte' coogruous. Now
wee sce,that according; to men's fancy , ih ings are
conjfi unus or mcongruous to their natures, if no"t
to the body, yet to ihv ihiiikinjr faculty. Uee
also do noi know uhat is «jood, or what is eiill
in itself, if not thus. Whatsoever ran be attri-
buied to Go(\, that is jr„„j^ auj „|iat „ot is
CTill. And wee know nnt what can he attri -
butt-d to God, but [by atfirminj^ of him] these
tbm«/« [that] by s.ioli a dedoc|ion [as I have
tnentioiied.] wee call perfect, aod by denyinif
ot biiD, tbeae Ihiuga wqe caU iiii|ieiiect Uwt
fiSl] S WILLIAM III. Procee£ngi agamd Tkomas AHenhead, ' [Mt
iers of great eonaeaueiioe, wh«re fiiHcy can not
JUai e place ; tfor wnei*e it can kave way, it doth
not much oonoern nbitber the tbio^ be real in
itself' .or not. Hence it is a princifile innate
and co-natural to cyery man to hav« an inanli-
able iuslinatiou to truth, and to aoek for it aa
lor hid treaaure, which indeed had its effect
flpoo jf^e, and my roaaooitlifirin ao luaalered
ipe, that I nfassfonoed of iicceauty to reject th«
Autbontys and leaiyimonya, hodi of my parents
mn4 (4lMrs, instil keii into lae. So that I went
fiutber, and eKaniincd tho point aiore reason'
«hl/, Ihiat I might buiki my faith upon unnon-
Irovertabie grounds, mmI so I proceeded untiU
^m^ ihe more 1 thought Iheron, the furtlier I
W4f trou finding the voritv I desired ; ao that
after much yuaueriogs 1 tonnd my education
mltq^nther wrong, not only hecauae it was ira-
pgasiUe for me iw snv that I conversed with, to
pradnoe any groanda leaily auSdent to con-
am the same; but with the greatest Acilitj
awjicieol grouad ceuUI be predoced lor the
iOMtrau'. And this I profess and declare, was
ibe oaljr cause, that made me assert the things,
Ihat 1 asserted, and deny the things that I de-
nyed. And tho' fiir the most part audi per-
aoap ^soeplicfcs] are stained, and charged with
aMne great and nomeioua villanys, and immo-
jplitys, which tluUlJiey may .have free lilierty
ta act, without any trouble within or without
them, eaiises them to ai>ostatise or not conform,
and to attempt to prove the matter [of rdigion]
vain. But I can charge the world, if they can
ataia me, or lay any such thing to my charge,
80 that it was out of a pure love to truth, and
my own happiness [that 1 acted.] And this 1
promised to myself, ^vhen I was very young,
08 1 remember, about ten years of age, 1 have
been ever, according to my capacity, searching
good and 8U0icient grounds whereon I might
Bolbly build my iuith, which at first 1 reoeav'ed.
^raiU dictum ; 8o that tStbt my general doubt-
iag, th& first thing or bead that 1 fell to work
with was, whellier or not man was capable of
ofiending £715 enintm, or of any immorality as
the thing which must be the basis (next tf^tbe
existence of Goij) in such matters. ^V Inch aAer
way $ and so wee most ignenmtly coaMta
circle. Now wee can have no omr astiun of
things, in themselies, good or eNU. Aad as
UiF moral good or eviil, all wjH .nanftis that
any thmg inav be awrally evill, and any fAmg
morallv] good also, and oonsequantlv nay thia|
[may be] decent or indefaent, nMnil or ia«Mi*
rail. Nay , tho' «her were things .aviU in tb«a«
sdvs, (if wee do not apfifenbead some othw
thing m stead jsf tiem) wee can hare ne iadl-
nation to them, otherwise Iba iMil aooM aiih
eviU as evilly and if the lancy apprehend aw
ether thing than the evill» it is eoly Ibe «nlw
* sub qui,' that is appetite [tlud is if sree dsMe
a real eviU, it is under the notion of gaodj.
Bat I thought it yet mere atraoga, that cm
out of tbeaui^raaition of a aatural law, asifar
by revelation, nor any other way than by Jha
merer of Gcd, (as we ane taught hy nmm
sad the light of nature,) wouM saan be pardoa-
ed of God, for their ioBwaoralitya. Far IM. if
God did not pardon anen'a aias, thor wanldheM
use of his mercies, a^ad certainly if God haia
mercy (as oadouhledly he hat) and if it be atf-
aite,he Hmustof neccasily pardon (astbeksitif
its operatiuas) the greatest sins that tlie fc^ghal
dependent bdnr ean be capable of. Aad it
muBt not be said, that this overtinrows joMisi^
for tliat is most false, seing that men^ P*tsap-
poses justice, and the sentence to be giv«a,a«d
thea It steps in and satisHee justice. Bat if
you will have tliese two iueonsiMent, yon mat
rather say, that God hath not mercy in 9i
things.
But then if mercy do but little help, wes an
say that God will not destroy and damnoer,
tliat from bis heart loves bim, prayeth to hiai^
aod praisetb bim, and doth other acts af as-
tural religion ; for thus it would follow that is
hell, ther were prayers, praises, and the iaie
of God, and such like, yea and that the <
ture had more love to tlie creator, than the c
ator hath to the creature. All wliich [o
quences] are most absurd. And it is impotfibh
for any intcHi<)^ent benig not to love God, sdog
that he is with his most uppetable attribiitrs,
* ipsissimum bonuin.' 80 then it would follow,
that men could be saved and enjoy God by tbt
natural law, otherwise the world were alawit
damned, and even of those who embrace retf-
lation, very few obey it. And [it wouM fbllov
too], that tber were*no need of revelation, or of
any other way of salvation, espechially sacb t
way as christianism ; for God would not do It
great a work without necessity, neither ess
revelation and providence consist, for if thcrki
a geuerall providence, revelation wouM he bit
an eflect of providence, (and that ordinary)
seing that every act of providence, as provi-
dence, is alike divine, and so no revelalioa.
Ther was another great |ioint which I «il
in doubt of, to wilt tliat of the Trinitv, wkcrf
1 thought that the common diaiincuon of i
seeming contradiction could not have pisss }
seeing that ' quicquid est in Deo, est Ita«
i|ise.' I tbou$;ht nolhinff more clear than thslv
« PMernitas tiliatio/ lad ' H>gio faMilWj'**-
InduJett m tbe ^sfnoe of God^ it ^ouM or«r>
throir tbe ^tirpticity of Uie Aftne if ttif^y be
t<mlty dtsiinci am*knflr ihemiw^tTt, and that
mtA m tb€ Trinity styould <lif!Vr notbinji' f>Mii
tHe potiih^istn^ of Um Gentile?, hv makinpr
4irt<t: dibiinct 'mfiniU. And tnauv times have
I pryed as far an my capacity wmM foUoiv me,
to Iry tbat if it were true, bow fkr I ooultl
i^ch in lb« AfiowIaJg^ of sucli a ihiner^ t>ut 1
fbtirid aUvavs tbat ibe more 1 tbuughi [ott it]
UM^(\lnber I wa? from k.
^^>fow tb<r^ ihing'!^ f have pualed aotJ vexed
^Ptyself in, and all that 1 cottld learn ibtftVain,
^■L that 1 cEiiMvnt bevc siich certainty, eiiUer tn
HpiuraJ f>r Ktip^rnutiiral things as I \\m\id liave.
^WImI so I dasit^ »n men, eff|»e<thiHHy inivenious
^iMlngf men, to bowaro Jiod uk^ notice fsf iheiie
f upon which I lia^f splitt. 1 declare my
ni*e and dt:te!»t of any of my fai1in{^
nces concernii)^ the forsaids, and its my
nest and only desire; and prayer lo Go<l for
I merci*^ sake in the name cit Jesna Ciifist,
I way I only expect jiuriton of \i\y mu%
\ i^conciliaiioti with God) in forgi?« me my
nets ami tresjiasscii. As ali^^ J from my
' heart and in iirief and sorrow thej^of, am
rple,tftt nad troubled for the baae^ wicked,
and iirebtjiinis ejqirewions wUich I ha^e nt-
Ivred, altbo' that I did tbe same out of a Mhid
seal l»> that which I ibmixbt trulb. And I pro-
^Me^oxuS declare, tbut tbo^ it do not ap{>ear much
^k outward stigtiesi and ^okebJit yet I cannot
^Btf>rr99 liow much 1 delest^ abhor and am
1r*>ubtetl at ilie same, wilhall 1 ackoowletlefe
and ronfrss lo tbe glory of God^ that in all be
"^ bt o|jOM me, either one way or otlier,
^ic it most wisely and JusilVf and I
OjKj in his merc\ ihiit itwill be b^ier forme that
t hatb offlicteJ and punishud me in tbia life,
the current of my sins, than that be
'I mc to go on headlong^ in my own
»vnvs, into tbe miaerya out of wjlich I
uld ne**T have recovered. Likeas I btess
I the tn the full pennvasfon of ibetn*e
bri^tian Ppoltstimt ApuMolick* failb, acconlin^
the terH>r of my jieiiiions jriven into the
of justiciary and councill, which are
1 by rti«* and in their clerks liandH,
^4rnd 1 cannot, witbo«t dorn^ myself a niam*
at injury^ hot vindicat n>y inncKjcnce from
? qboniinabip asjM'njionain aprintcdaatyrof
Miing*o Ccnitf'?, uho ^-aa an evidence
. whom 1 hare tn reckoti with God
1 cnmiciecjce, if be wasuot as deejdy
nfertjfiJ JO (bo^c lii'llish iK^tk«ns, (for which I
sentenced) ns ent \ wd^^ however 1 h\e*,s
\/^r\ T ' T p liiin vA\i\ nb men, and wishes
Lr. L(:r»^ brm likewisf?.
Toi 3 the Lord in bis providence
b ' d in this eTTsmplary miraiicr
> pn» j^t ^iiir k;o a Isioyeamffrt
[ : a stop to
' . , \\h ifxJcen
1 fiwtme;^ in ji'jfmjn, both m [met ice and
Waiion. Atid nj Itis iljfmtfe tncrcy recover
arc deluded ^tH thw^ |ienjidou» j
D. IBM. [93*
pnncrples. And fw that end that his ercrtaj^t-
%V\** f^ospell may nourhib in lliese lands wbilo
9m\ and moon endureih. And now, *> L<*rd,
Father, Son, and Holy GImsl, in tliy bandx 1
recommend my spirit, l«'t:mgf and ho|)eino' for
pardon to all my sins, anrf to be rec caved tof
iby eternal gflory, through (he only t igblfou:*
naerils^ of Jesua Chr/si my 8aviour. In whom
vk'iXh the Father and Blessed Spirit, my 8anc-
tifyer, be cfcrlasting praiae, honour and gJory
for now and evermore: Anoen.
Sic Subtcribittir, Tho^mAs Aikenbeap.
Copy of his LtTTEti to hia fi'einds from Edi
bur|;h Tolbootbp the day of hk death
January Bth, 1697.
Being now wearing neor the Inst moment of
ray time of living in ihisvain worM, I have hy
the enclosed mider ray own liandjoow when 1 am
Bteping- Into eternity, br«jfly as my titne cotdd
only aTloWi o^iven a true relaiion to the world
ill ^nerallf mr whose use 1 am to give some
copies of tbe enclosed at my last end to th9
mim^tera and magistrBts who shall he by me,
and to mv dear and worthy frenida (whom I
from gmA ground may term parents) in parti-
cular, for whose use 1 will order this enclosed
l>rincipalt to be delivered by the bearer, to he
preaent, of tlie orig'itMil rise, matter, and man-
ner of my doubtingsftud inquisitions, for wbicli
as 1 am now to die, so 1 desirtd not to lire fur-
ther ilian mi^ht have condibute to the glory
of God, and ^ood of hia people by my after
short time (for which I was demaodingf a re-
preive) and my own soul'a eternal wclfai-e, by
my more serious and incesaant application iQ
the throne of mercy for my fijeatsina* which
1 hope shall be all forgiven by the n»ercy of
Go<if tbrouj^h the merits of my Hedeemer Jesus
Christ, tho alacemy time hath been abort sinc9
my sentence, so 1 have tritled away and mis-
pent too much tbereofi however, as my tim«
hath allowed me, the encloaed will gire satis*
f^tioo to you in particular, and to the world irt
generall, and after 1 am gone produce more
otmrity than hath been my fortune lo be trvsted
bitlierto wiih, and remove the apprehensions,
which 1 bear are various with nj;»ny abont my
case, being^ the last words of a dying person,
anil proceeiling from the sincerity of ray heai-t.
Ther is one thtn^ 1 hear I am aaperaed
W(tb| which is not in the enclosed, which uPy
that I am suspected to have practi§ed magich
and conversed with devifs, whicti i here de-
clare in the preeence of Ahnig'hty God, tu heal*
gelher fal He and without any solid ground, I'
d OKI re you may call for extracts of my petition^,
to the counceU and .luMiciary, ivbicli 1 rebter
to in my ta*^t speech, which I recommend ta
your'-^rp ♦^*nt 1 may btj vindicated from
,^i, _ .. . uur. Thomas Aul^ns
m
Some An hnad versions upon AikcaheaiTf Isit'
wordu, occur in tbe book^ iptiiied^ •» Natural
Reli^toii iiiMficieDt, and lket0iU«d uuttupw/.
935] 8 WILLIAM III. Proceedingi.againtt Thmat AHeiihead,
[m
to Man's Happiness, in his present state,*' 6cc.
written by Thomas Halliburton, a man of
learning and of piety, who was Professor of
Divinity in the University of St. Andrews,
from the year 1710, to bis death in 1713.
The author, after having set forth the evil
of «in, or, as he expi'esses it, having coude-
fcended oh a few of those coaMitlcrations,
whereon he insists for pi*oviiig si!t to be exceed-
ing sinfnl, proceeds thus : *' The DeibtJi, to
evade the ditiirultiis arising from this evil of
sin, tike difTercut courses. Some ulainly dimy
any such thing as evil, or that tnere is any
thing morally good or bad. Thomas Aikeu-
head, who was executed at Edinburgh, Jan.
8th, 1697, for his blasphemies, in his paper he
delivered from the scaffold, tells us what hts
thoughts were in this matter, and upon what
grounds they were built. When iu his ra-
tional enquiries he came to consider, whether
we were capable of offending C>o(l, he tells us ;
' that afier much pondering anil serious uonsi-
deratk>n he concluded the negative.' The
famed Mr. Hobbs was not of a very diflfereut
mind : for he plainly asserts, ' that there is
nothing good or evil in itself, nor any common
)aw8 constituting what is naturally just and un-
just : but all things are to be measured by what
every man judgeth fit, where there is no civil
government ; and by the laws of society, where
there is one.' And elsewhere ; * before men
entered into a state of civil guvcrnment, there
was not any thing just or unjust, for as much
as just and unjust arc the relatives of human
la\«s; every action being of itself indiflVTcnt.''
And whether Spinoza was not of the same
mind, is Icfl to those to judge, who have time
^imd leisure to trace his meaning, in liis(»bscurc
and designedly involved way of writing. But
•urely this proposition in his Atheisiical ethicks
looks vory like it, ' si homines liberi nascc-
* rentur (liber autcui est juxta Sj)iiiozdm, qui
* secundum dnctum vol ex ducia rationis agit)
* nullum hoiii et luali lormarent conceptum,
* quamdiu liberi essent.* Mr. Ilobbs has been
learnedly c'ont'utcil by many, such as Dr. Cum-
berland, i\lr. Tx roll, and almost all v. ho wnie of
the law of nature. Spincza has likev* ise betn
examined by \>ittiohius, and many others.
The first, viz. Thomas Aikeniiead, his grounds
I shall propose and examine.
The fir^t v.\ his own words runs thus, * 1
* thought,* says he, * a great part of morality,
* if not all, proceeded * ex arbitrio hnminum,'
* as of that of a kingdom or conn non- wealth,
' or uhat ntost men think convcnit^nt for such
* and such « nds, andUicse ends ure always ter-
* minated upon being congkuiKis to the nature
* of tliinjis; now we see tliat according to
**. men's fauL'/ things arc congruous orincon-
* gruoii- to Uioir natures, if not to the body, yet
* lo the i:ilnkini«: Ihculfy.*
The sum of this confusetl discourse, which
probably he learned from Hobbs, amounts to
tk;<; C'oUhai tix«d do law to our jnoral ac-
tions, by which they ere to be regaUteJr
Those, which are called moral laws, ure oiilj
the dt'termi nations of governmeut, or the cjn-
curring judgment of men, coriceniing mbat
they think meet to be done for Uieir own eodi.
That what eorae judge meet and congmoai,
others may find unsuitaiile in their nature ui
ends, and so are not obliged to obey. But, 1. Art
not uU tht\<e ungrounded assertiens, wherof ii»
proof is ofi'ered but the author'it deluded &iicjf
12. Has it not been irrefragably demonstrated br
as many as discourse of moral good and evd^
that, antecedently lo any government amcog
men, we ore under a law, the law of natDir,
and that this is the will of God. 3. if all
these had kept silence, does not the thing itself
speuk ? What can be more evident, than thai
there is a law of nature, and that this is tbt
law of God. We are certain that we are maile
of rational natures, capable of laws and govern-
ment. We are ik> less sure, that God naatle us,
and made us so. It is self-evident, thatlofaia
who made us, it belongs to govern, and dispOM
of us to those ends for which we were nw.
And we by our very licings are bound to obinr,
submit, and subject ourselves to bis will and
pleasure, who made us, and on whom weeiery
way depend ; and therefore his will, if w
make it known, is a law, and the highest hs
to us. Again, it is clear that this reason, if «•
attend to it, tells us, that some tilings arc t» be
done, and some things \e\\ undone ; sncb ai
these, that we are to serve, love, obey and ho-
nour him that made us, upholds us, and oa
whom we every way depend; that wc are 10
cany forward our fellow creatures, an it be-
eoino'« those, who have the same original niih
us, u ho are subject to the same rule, art^ oMi<^
to pursue the same ends ; and that we are to
dispose of ourselves, as the author of wit oa-
tore allows us. These are all, if not self evi-
dent, yet next to it, and easily deducibic froa
principles that are so. FuiUier, tlie reasou
that is implanted in us by Gml, tells us so ; w^
are to take what it leads us to, whUc duly used,
as the will of Gfid, and so a law to us. ' * For
whatever judgement God makes a man wiib,
' concerning either himself, or otiier things,
* it is God's judgement ; and whatever is bis
^ judgement, is a law to man ; nor can he ne^-
* lect or oppose it, without sin, Iieing ia his
' existence made with a necessary subjectioi
* to God. Such and such dictates being the
* natural operations of our minds, the being
* and essential constitution of which, in ri«:bt
' reasoning, we owe to God, we caunot but en
' teem them the voice of God within us, and
* consequi^ntly his law to us.' [SirCbarlei
WolseieyVs Scripture Relief, pp. 32, 33.]
What he tells us, of men's different appte*
hensions about what is right or wrong, niaktf
nothing to the purpose. That only shdv^
that in many instances we are in the dark as li
what is good and evil, which is granted ; M
will not infer, that there is no fixed measore tf
good and evil. In many ^^eral truths, al^
who apply them«elve« to think, UDdeitluid tkf
937]
Jm Blaifkemtf.
A. p. 1698.
[938
Iprms, and have tlie trnths proposed, do airree.
And perha|i8, all that is knowable of our duty
by the ligfht oft* nature, is dediicible Iron) sucb
priociplcs of morality, as aU rational men who
Lave tliem fairly pro|>o8ed to tliem, must as-
sent to. And deductions from laws when
duly made, are of equal authority with the
principles from which they are inferred. And
finally, when men, in pursuance of their per-
?erse natures, follow what is cross to those
dictates of reason, they are condemned by
their own consciences; which shews them
under the obligation of a law, and that acting
in a conirniity to their natures as corrupt is not
the sfantlard they are obliged to walk by, since
tlierr own r«'uson checks them for doing it.
They who woujfl desire to have this matter
fully distsiurseil, may read others who have
done it dfbii^nedly, of whom tliere is great
plenty.
lii^ siccoml ro&son rims thus ; * Also we do
* not kni»w, what is ^od or evil in itself, if
* not thii9, whaisocver can be altributeil toXiod
* that is £fori1, am! what canoot, is evil. And
' wv know not what can be attributed to God,
* but such things as by a dediiclicui we ascribe
* to hrm, wr call perlVrt, and such as we deny
' to be in him, mc call imiierfcct ; and so we
* most ignor.-»nt!y romtnit a circle. There is
' no other nulioii of tilings in tliemselves good
*■ or e**il.'
It is much hanger to 6ml the Fcnsi" of tlicse
words, if they hnve any, thim to answer the
Ar^ment. The desiu'^n'of it is to prove, that
there is no tttandard » hereiiy we may judcfe
what is goo<l and what is evil. TiieVorrc of
the argument amounts to this ; that tlicrc i^ no
way liow wc come to know any thing to be
Siod, but by this, that it may be ascribed to
od. Bnt we cannot know whether it is to l>e
ascribed to God, unless we know that it is iier-
l«:ct or good.
This IS thin sophistry, which I might easily
^i^posc, were it to any purpose to discover the
weebiess of that, which it's author was asham-
ed of and disowned.
As to the first proposition, that there is no
other way to know whether any thing be good
or evil, bat this, that it can or cannot be ascrib-
ed to God. 1. The complex proposition is
laise ; for there are other ways whereby we
may know things to be good or evil. And this
holds^ whether we take it in a physical or a
moral sense. We know that to be morally
good, which God enjoins us to do. >Vc
know the will of God in some instances, from
the natures God haH given us ; and from these
instances, our reason can infer others. As to
physical good, we know things to l>e goml or
perfect, by acquaintance with the nature of the
things, and by the self-evident notions of prr-
fectiou: for there are some things, such as
defiendeiicc, subjection, and the like, which,
without any reasoning about tlie matter, we
understand to be imperfect, or perfect; as
aooQ as we understand the terms, and know
tkat « peifectioa it that, which it is better for
any being to have than to want; and then what
these particular words dependence, subjection,
&c. signify. This alone overthrows his wholo
argument, fi. The maxim which he fixes as
a standard ; that is good, which may be as-
cribed to Gud, and that is not, which may not
be ascribed to him, if it is taken in its fuU ev
tent, it is ftalse as to moral good ; of which tlie
only question is : for it is certain, that it is
good tor man to be a de|)endent. a subject. See,
which cannot be ascribed to God. If it is
taken in a physical sense, it is not to the pur-
|io&e : and besides, it wonid, even in this sense,
need some caution.
As to his other proposhion, that we cannot
otherwise know what is to be ascribed to God,
than by knowing that it is good or perfect, it
can scarce be supposed to speak of good in a
moral sense ; and in any other sense it is im-
pertinent. If it is understood in a moral
sense, it is likewise false ; for wc may know
that things which are not in their own nature
moral perfections, belong to God : such as
power, omni-preseuce, 6cc. if it be untlerstood
in any other sense, we have nothing to do
with it.
The next head that he ailds is, " That all
' men will confess tlint any tiling may be mo^
* rally evil an J good also, and consequently
* any thing decent or indecent, moral or immo-
* raf. Neither though there were things 'ia
* themselves evil (if we do not appreheniV
< other things instead of them) can we liave
* any inclinntion thereunto : otherwise the
* will could wish evil.*
But, 1. Who will grant him (in any other
sense, that will be subservient to his purpose)
that all actions are indifierent? I know none
but men of his own principles. S. As for what
he pretends, that we cannot incline to that
which is in its ouu nature evil, unless it l>e
under the notion of good, I see not what this
says fur him : it is enouq:h that wc can do that
action, which is evil and prohibited, yea, and
which we know is prohibited, to constitute lin,
and make the sinner deeply guilty.
But, not to insist any further on this incon-
siderable trifler, (whose undigested notions
scarce desene the consideration we have given
them, and much less did they becom 3 the aw-
ful gravity of the place where they were de-
livered :) there are others, &c.
Aikenhead's dying Speech appears to have
been printed, as Haly burton not only refers to
the passage cited above, but altto mentions it io
his Index of Authors and books quoted in his
Treatise.
Wodrow (vol. 2, p. 221,) relates the fdlow-
ing case of a convert to Judaism :
** Another lamentable effect of the bearing
down of the gospel, and the neglect of instruct-
ing of people at this time, was the apostacy of
too many from the very profession of religion ;
and indeed profaueaess was now at a terrible
889]
11 WtLUAM m.
Trial^ikeSMrldfJVamkl^
Mfbt lb the joirtMiary K^risllert, I filid a
'—" the uMMnrnttatt penoB for
MToent apuDrt the uMlcnrnttatt penoB tor
JMWhh, which hmnfg the only initMioe, m ftr
•■ I kiKMr» of thia aoeo the Refbnmtioo, tho
carioavmder wiU be oootent to hare a Tiew of
iti I pwc it as it atands in the crioiiiial booka,
wmi it IS what may be a cantioa to parenla to
IbttDd their ohildKO well in our holy religion,
hefbra they aafler them to go abroad.
. «< ^ Edinburgh, June 15, 1681. Francis
« Bortbiiricb, second son to Jannes Borthwick
9 o£ Haveiaw, being often called to have oom-
* paaaed before tli^ jasticiary, this day and
* place, in the hour of cause, to have underlien
* the- law, for the crime of blasphemy com-
* oiftted by him, in so far as being bom of
* Christian parents, and baptized and educated
* in- the Chnstian faith, and continuing in the
* Cjpen proliBssion thereof, and communion of
* tar Christian and Catholic church, until the
* aM of 14 years, he went abroad to foreign
^ placsa, to milow the trade of merchandize,
* when he waa aadnccd to make a shameful
* apoataqr fiiua the most holy iaith, and to
"K
moftas' and openly deofasv hteielf to ba i
Jew, and waa ciroumoiBed
turned to Seothmdi at Edi
houaea, Bmdsfidd, and Hall.
rail agauMt our Lond
Chrisi, denying him to be Sod,
bun to be mere man, and a fkbe utophit, sai
ontragiooaly reriling him by mwa other hoh
rid maphemica as are not fit to be utMwdl
renouacmg and cnrsmgr the holy sacfawMBi
and rite of his baptism. AmI be did md
great and horrid eKcratieoa wish aH nuaaB
of judgment to befid him, if ever heshsoii
return to tlie Christian religion, in maBaerU
length mentkmed in the crimioBl leMm^
raised at the oMtanoe of hie amjeaty^i adit-
cate, and Jamea Cockbom in DadJingsM
informer Bfmm him thereaneot. Anfbem
towfuHy Cited, mid not compearing, the hdi
adjudged the said Francia Borthinek ta ks
outlaw and ftigitive, and all hia goods mi
nto be brought in for bis m^imly^ ai^
is coiitemptkm and diaobedieiwe; "^
was pronounced for doom.'
40S. The Trial of Edward Earl of Warwick and Holland, Ik-
fore the House of Lords^ for the Murder of Richard Coob^
esq. : 11 William HI. a. d. 1699.
JIfarsA S8, 1699.
About H of the ck>ck the Lords came from
their own Hboseinto the court erected in West-
minsfer-hall, for the Trials of £<lward earl
of Wanriek and Holland, and Charles ]oi-<i
If obun, in the mQtmer following : The lord
high' steward's gentlemen attendants) two
and two. The clerks of the House of Lords,
with two clerks of the crown in the courts of
l^hancery and King*s-bench. The masters in
Chaiioerv,twoandtwo. Then the judges. The
peers eldest sons, and peers minors, two and
awo. Pour Serjeants at arms with their maces,
two and two. The yeoman usher of the House.
Then the peers two and two, beginning with
Hie younmt barons. Then fbur serjeunts at
armsv with their maces. Then one of the he-
ralds, attending in the room of Garter, who by
reason of his ioHmiity could not be present.
Ami the gentleman ubher of the Black Kod,
eurying the white-statt* before the lord high
ateward. Tlien the lord chancellor, lord high
mevmitd of England, alone.
When the lords were seated on tlieir proper
benches, and the lord hi'i^h steward ujmn ihe
wool-pack-; the two clerks of the crown in the
courts of Chancery and King's- l>ench, standing
before the clerk's table with their faces towards
itie state;
The derk of tlie crown in Chancery hailing
his majesty's commissiun to the lord high
steward in bis hands, made three reFereDces
towardi the lord high stewan!, and tho olcrk of
the crown in Chancery oil liis knees ppwihi
the commission to the loni bigli stewan!, eW
delivered it to the clerk of the crown in tbf
King*s-bench, (then likewise kneeling IhM
his grace) in onler to be opened and read ; sii
then the two clerks of the cmwn mskiog thiti
reverences, went down to the table ; m iktf
clerk of the crown in the court of King's- bcodi
commanded the serjeant at arms to make pi^
clamation of silence ; which he did in Ail
manner :
Serj, at Arms. O yes, O yes, Oyea, My WH
high steward his grace does straHlv chaiyesai
command all manner of persoiis neie pifwtfi
to keep silence, and hear the kiog's majerty^
commission to his grace my lord high sttwH^
of England directed, openly read^ upon paia d
imprisonment.
Then the Lord High Steward stood op* «i
spoke to the Peers.
Lord High Steward, (Lord 8oiacf&) Vol
lordships will be pleased to alaiul up, aotf h
uncovered, while the king'a comtniwiaB i
reading.
All the Peers stood up, and were nneoiadl
while the Commission waa read^
Clerk of the Cr<n»n. < GalielmaaTerttatlN
< Gratia Angl. Scot. Franc, et Hibem^ fttt
* Fidei Delcnsor, <Src. Prasdiledo cC Mel CAV
* ailiar. nostro Johaoni Domino Saulwii^Oii
< cellar, nostro Augl. Sciatir^ioA <
« CoBHi>WtNrwie. 01 HoiUn^, r '
w Con. VMkHOL. tft
I lo ifiimpft
Dnw. Nohao, Mper dm pmch
nrtiai io CSmd]
L in Cmd. priBdiet. eoram dUectb fide-
tria Cwolo Lee, MU. finnud. Back,
■0 Wilbm d Fraociwo TynoD, Ar-
i»ct ftliisiiOGiiiMiiiJiMrticiAr. nottnsad
nd. perfiaonmcotum, prober, et lega-
(Ominnni de Coin« nostro MUUHesex.
t. ac aliif ? iis niodis et mediis quibus
soTwiBlaiitpoleriiitytoin infra Ubertet.
tztra, per auoe rei Teritas anelias aciri
et inquiri de qnibofciiDQiie Proditiani-
iaprinonibus ProditioD. Iniurrectionib.
ioaib. Ceatnrfaot. tiinsar. lotur. fiilais
liooib. eC aliia I'alsitat. Monet, bajns
uMlri A4igl. H alior. Re^nor. aire Do-
, quomincunqiie ac da quifatoacunqiie
ia Feloniia Homioid. Inlcrfectionibtn
If. Raptib. Mulier. Confpregationib. et
iiMsul.^UieiL verbor. pralationib. Coadu-
b. MupriaioDib.CentJBderatiombiis falsn
Dcibi Tran^^reMionibus, Riotia, floutis,
jonib. Eaeapiis Contempt. Falsitat.
vntik, ConeciameDt. Manutenent. Op-
iDibus, Can»biparciia, Deceptionib. et
lalefcctiB Ofeie. et iDJur. qnibuscun-
aeeooo Accewar. eortradem iiifraCom.
t tarn infra libertat quam extra, per
inqueet qaalitercunque habit, iact. p^r*
iive GOimnis. et per quoa re! per qacm
I quibus quando qaaliter et quoniodo et
ia Articul. et Circumatauc. pmnifla.
ir. alicnjos Tel aliquor. qaalitercunqoe
nen. plenius verttat. et aif easdem pro-
a et al. |ir«miia. audieod. et terminand.
hioi legem et conauetad. R^ni nostri
nuper aa*ignat. de Felonia et Miirdro
MM Edmm. Cumiiem Warwick, et llol-
i Carolum Dominum Mohan, Commiss.
petrat,per aacrainent prober, et l^^^l.
um Cum. nostri 3Iiddlesex. prxuict.
It. eziatant. Nos conmderantei quod
A eat yirtua exeelleos et altissiino com-
«, folejiteaque qaod pnedict. Edrus.
I Warwie. et Holland, et Carolns l>o-
Mohun, de et pro Felonia et Murdro
pat at prttfertur Indictat. extstunt. co-
lob. in preienti Parliament, nostrose-
m leg. et consueiad. Reg^ni nostri
Andiantur, Examincntnr, 8ententi-
et AdjuHiceiitur, coileraqiie omnia
D hac parte pertinent dcbo. mmio cx-
itur et cxeqtiantur ; ac pro eo quod
m Seneschalli, An^l. (cujus prspseutia
; parte reqniritar ut accvpiuiua) jam
Nob de FiiMiiate Prudentia prorida
napecticne et Induatria vcstrit pluri-
eonfidenCea Ordinaviuius et Constitiii-
oa ex hac causa Seneacliallum, Angl.
idom iilud cum omnibus eidem Officio
i parte debit, et pertioen. (bac virr) ge-
aeenpand. et exercend. Et ideo vob.
BWiia qood oirea pnemiss. dilififentei m-
■aet ea oiunia que in hac |)arte ad Offi-
Haaeadial. Antj^l. iwniaent et requi-
r (hac viet) faciatia exeroeatis et exequa-
OTDidfcstii. lAcqiaaraTwtimoiuum
« haa litaraa noatiia iaii ieetinw
< Taate meipao apvd Wcalnmatarii
(moqiuDtodie Maftiiy Anna Sogbi aoatri Un-
•decimo.
* Per ipann Begem propria Mana SigMt.*
Serj. et Arm. God aafe the king.
Then the herald and thegantleman-iiaber of
the Bbu;k Rod, after three re? erencea, kaceliiig'.
preaented the White ataff to hia graoe, a£i
bia grace removed IVom die Wool-pack to tba
Chair, which waa pbead apon aa aaont jaeC
before the unpermoat atep or the Tbroot, aai
aeated^hionadfin the Chair.
ClofiheCr. Serjeant at Arma, make Pto-
clamatton.
Serf, at Arm. O yee, OyeSy O yes, my lord
bigii fteward of England, hia grace, doei atraitly
charge and command all manner of persona
here present to be uncovered, upon pain of im«
prisonment.
Then the Judges and Mastera in Cbanoay
sat down in their placea upon tba woo)-padE»
uncovered.
Then the Clerk of the Crown read tbeRetoni'
of Certiorari, m /uec verba :
• Gnliclmns Tertios, Dei gratix, An^l. Soo^,
< Franc, et Hibem. Rex, ridei Defens. &c.
* Jnstic. nostris perLiteras nostraa Paten, eon-
< feet, ail inquireml. perSacrm. probor. etlapd.
* hom. Com. noatri Midd. ac aliia viii mocL at
* m^. quibus melius aciverint aut poterint de
< quibuscunque prodic. mispris. prodic. inaar<^
* rection. rebellion, controfact. tonsur. lotur.
< i'alsis fabricat. ct aliis falsitat. monet. bujua
< Regni Angl. et alior. rpgnorum sive domini-
*orum quorumcuoque ac de quibuscunf;
* murdris, felon, homidd. interaction, burglar.
* raptibus mulicrum, coogre^faoon. a convea-
* ticul. illicit, verbonim pn>lationibus,€oaduDat»
* mispribion. confederat. falsia alleganc IraiA-
* gres. riot. rout, retention, escapiia ooniempt«
« iicgligenc. concelament. manuteaen. ^ppmi-
< siou. deception, et aliia malefactis ofiens. et
< injur, quibuscunq; necnon accetsariis eoruD-
< dem infra Com. pnedict. tam infra libertalta
* quam extra per quoscunq; et qualitercunjv
< habit fac. perpetrat. sive commiais. ac deaiiia
( articulis et circumstanciis nrsmisa. et eorum
< quoillibet sen eorum aliqood vel aliqua quali*
< tercunq; concernen. plenius veritat, et ad
< euMletn pi'odition. et al. prsmiss. andiend. ct
* terminantl. assign. Necnun Juatic. noalria ad
* Gaol, nostram de Newgate de Prisonar. in ca
* ex existen. deliberand. assign, et eorum cuitt-
* bet Saltm. volen. certis de causis omnia et aia*
« guU Indictamen. et Inquisition, de ouibua-
* cunq; felon, et murdris, uiide Edrus. Coiuat
( Warwic. et Holland, et Carolns Dominoi
* Mohun, et al. coram vobis Indictat sunt ^
< nmMion record, conviction. lUci. Frenoh,
* Rt»geri James et Georgii Dockwra, pro fekm.
* et homicid. unde indictat. sunt. £t super
* ibde per quandam. Jur. Prie. inde inter noi
et prcftt Richanlum French, Rogaram
et Oeovgium Dockwra^ ca^ cnwiVA^
MQ
iL^riLEaaiiiL
«MtM
ict* MUD oni
iiMiiifiwid
4
. et owwqw^
'Mbhiui. RkslnnliiK mepmi .«t .Oeondiis
•MIMkMMBr in «iiMreoA|B Mb mb
'IMM iPMlrfi ant tniin vcibntti in oetab.
*>gfc^jBHhia uMcBWi^ likqoitoiiirosuiAiigL
'^BMHw 000 HBsM ^CMMTttuft DBilOtt* QOftCQItt DOC
^tMm olMat mde §M flie.'qiiod dkpnt
^WMttnun- I6MUI ft coDt. iciiiii Bottn AdsI.
* Ara Wderimos fteted. TV2 J. HoH^Mil,
^sMdWeitiD. xzfiii dw Nofwubpii Audo
' Bq;oi BoaUidtciino.
^pflrCor. ^ Amr.
* • .Ad Ipitaiid i^ogecutp^ yioad dimlMl
^€l ad imliaci Mf^nDrvoi Dot*
: •J.Holt/
^ * 'Tirti^ciyiii bratb mihi et alni diraot Id-
^dictament at loqoiutioB, infirm mantkHiat
^.tiiHiMMi raoard« ooafictioii. infra Bomintt
fWoi.* Ffenehy ftbgaii Janca at Georgu
/ DooinirTa, pra felon, el homicid. onda indictat
jMwBpariiiJa pfnr qnandam Jnr. piia. oonvict
* aiiit. ann oniniboa aa tanapan* ooran Dokb*
* JUgtt in qnibnUdaoi 8clied.liiiio Wan aantz.
« nitto proul tntarina prscipitur.
- « B^ipona. Fra. ChihL MU. Bfqior. Cirit
^ Lobd. «n. Jnitie. 1nii« acri|it.'
* * llidd. «. Memofindnm qnod ad -ddibenu-
< tion. gaol. Domini Regit da Newgate tent
-•'firo com. Middleiei'. ajnid Juatice-hal) in k
'Old-Bailej in Suburbiis Civit. London, die
* Veneris (scilt) decimo tertio die Januarii
' Anno R^i Dom. nostri Gulielini tertii Dei
<m. nunc R^is Angl. &c. decimo, corani
* Fran. Child, Mil. Biiyore Ci?it London.
* Edro. Ward, Mil. Capital. Baron. Sccii. diet,
^ Dom. Regis, Henrico Hatsel, Milit. un Baron.
<" Sccii. dicti Domini Regis, Tlioma Stamp,
< Mil. Edro Clarke, Mil. Aldris diet. Ciirit. Lon-,
*'don. Salathiel. Lovell, Mil. serrien. diet Dom.
« Regis ad legem ac Reconlator. diet. Civit.
« London, et aliis sociis pnedict. de prisonar. in
* eadem existen. deliberand. assign. Ten. hie in
* Cor. Carolus Lee, Com. Mil. Samuel Buck,
* Will. Withers, Fran. Tysson, Ar. Justic. diet
* Dom. Rf^s per Literas patent, ipsius Dom.
* Regis eisdem Justic. proeiioininat. et aliis ac
* qnibuschnq; quatuor vel plur. eorum sub
< magno Si^illo diet. Dora. Ket;is Angl. con-
* feet ad inquircnd. per Sacrament, prober, et
* legal, bom. dc Com. Midd. nrffid. ac aliis Tiis
* modis et mcdiis quibus melius soWcrint aui
*'poterint tam intra libertat. quam extra, per
* qnos rei Veritas sciri poterit de quibuscunq;
* prodition. misprision, prodition. insurrection.
< rebellion, controfactur. tonsur. lotur. falsis fa*
* brication. et al. falsitat. monetce hujtis Re^i
^^■dict. Dom. Regis Angl. et al. R^nornm sive
^Doroin. quorumcunc}; ac de quibuscunq; mur-
* drift, felon, homicid. mterfeccon. burglar, rapt
* mulier. congregac. et con?enticu1. illicit ver-
* bornm prolation. coadnnac* misprision, con-
« ftderac. falsis alleganc. tranig. not. root re-
mhiWHrlh tif Jfti^tfJ ' IMA
tenUoD,. cscfl[)tis c!!Qoleuip* itfgltgtne* '4^^l
lumen, tuaimicnen. oppiiafisi<Mi. eambl|^B
deception, et aliis rnaklact eio^i^ir. qiltol-'
cnoq; iiec tion acceiisar, coriuid, inrm O^m^
pcicd, tain infra Lit>crtat, pnefltct. t^n^m titri^
p^ quciiicmifi', cl f^ualiieicuaqi Liabii. (yjTt |ier»
peiiiit. sive coniioiss. a€ de alas urtktil. cl cir*
cutn&taii. pi^inLs^a et eorom qutxililurt set
eorum aliquod velallqtitt qtialitercutiq'i ««•
cet-nen. pWoius verUat et ad BiMkin ffit^
tion. el al. pt'oemlisa JiuJietjd. di lemiintal
fitcuadtim lei^tm H coti^uetud, biAjiiiii ftqp^
diet Dofii. lie^is AngU as&i|;ii, et \wf mVftki
suiui propr. deliberaver. hie iu Cur. dit^ Pi^ 1
Regis qumtilarTi record. iucUctJiuncut. eanMl
eb €t aliis sociis suis tiUper pneantiEsa |inBiiati
et capt Tcreus Ed rum. Cam it VV'flrwk. it (
HoUand, Carol uin Ddmiaum Moliutii de <
Oakebampton in Com. Defoa. Ricum. Frrodk,
ItogeruuLi James et Geor^inn ItdckHr*,|x«
rnunlro cujosilam Itict. Coote, Ar. iitMa
juris tertniuaod. kc, (dsdem Hico. VfeaAf
fiu^ejno Jauit?s et Gecii*;:io Docliwra, priMlir*
iu (Jict* GauL diet, Dom. ll^U il« fH«iifitt<
cnusa in t^odcm liuliakiQieDt. ccftiient, advm
existen.) Record* enju* quiilem ipdi^nnti
paiet in quibusdam ^c-Ue^luU Uuic Attmx^
• MM, ss, JVleriiorautimu qiiotJ ml "
de Oyer et l'crrt4*>fT Domiiai Rcfm ieai. t#»
Com* MiddJe^x, apud llickn-llcdl m X
John-fclitiel, in Com, proctl* die I^li ■'
sepifmo die Decembrls, Anno Hc^^; , ^' -
nostri Guiielmi tertii, J>ei gFaiia. uam il^
Angliii-f «Scc. decimo, coram Cgtrold Lf«, WL
Katoiiii^lG Buck, Willtehno VVi there, Friodieo
Tysson, Armi^eris, et alii« sociu idii Sam.
diet. Dom. Kt^is per Liier^is I^l^m. ifsn
Doiit. Hegi^, eLsdem Juat^c. prieuomioai. ^
al. ac qiiibusctinqtje quatuor t'd plunba
eorum sub maguo Si^lfo diet. Domini Itegi
Anglic confect. ad iDquirtrod. per sacTunwi
jirooor. el legal! uui bom. Com. MMiMt.
prtx^iL ae alii^ riis mod. et med, quibus m^
scirerint out poteriut lain infra tibetn^t. qivta
extra p^r qnos rei Veritas melius sriri poifnt
de quibusi(.'Uuque (iruilitiDD. mbprtsititi. ^tv&*
lioti, jiisurrecUDti. rebellion, coutrtit^ictur. tao^
sur. lotur, liikit fabrication^ et uliis ftkitil
mo net. bujus Regni diet. Doin. ttegU Av^-
et al Rcpior. sive Domtnior, quoruioeon^ia
ac de quibuscunq; munlris, fclou*. b^Hit^ciil^ (^
4ertecLiou» l»iirgbr, rap|» mulier. ec^n^rn^
Cft cuuvcnlicuL iHicil, verborum iirdawtu
coadunat. misprifiiou. confederat, f^l^i ^^'
gan. tnuisgr, not. root. ret^utiori,«^^e^^iiibe«fr*
leut|>l. nei^ii^n. coucekmeu. manutecim. a^
i>ression. ca.uiblpareji&£ di.*c«pttua. ^ ahi» <Bi«
efaclis et ofien^is quibuscunq; nocuon ms0-
sar. eornndein inlra Com. pim'd, fam in^l
berlat quam extra, per qao»cunque et fv
tercunque liabit, lacL ))er{ielrat. sitecop^
ac de aliis articulis et circumslajitiii fW
et eor. quoillibet vel all qua qnaliien
conc^rntn. pleuius f eritat. tsi ad ea^d
dition. et al, prfetui^ss. audiend. el Iff
secutid. h^em et cona. Uiijtia Rip
Dom. Bcgjs AngL a^tsign. ^ MMj
945J
Jor the Murder of Richard Coote, esq.
A. D. 1G99.
[IMO
Nicolm
Gecrgfii
tichardi Reml, R*»<ierti Lee, J<>**i*|»hi
• hf Johnnnis 2^tiirmtttpJt»iiatl»nri MaU^
Baker, Roherti Tcague, Thomis
WiUielmi Brace, Tlimnfc WiUiams,
Bi*li«p» Thomaj Hmii;ffr?i, Jotmnnis
* LyiiiT, SnumeliJ) Lee, Riclmrdi Roijfcrs, Jo-
* fteiilu Ito^erSf Johannis Cheney, JohanYik
^ Fowier, et Robeili Nicholson » prolMir. ^t lp|«ra-
* liuni liomioum Coin, prteil. adtiinc et ihiiJem
* jurat* el onenit, ad inquirend. pro ilieto Dom.
* ileg« et corpore Com. prasd. prs&cntat. exi^tit.
' ^d. Billa Indtctament, huic Schedul. aaoex.
* tat rera.
• Midd. «. Jura tor. pro Donnino Rcg^c super
•Iwrruro, surnn prBe^frilant (\y\m\ KdwanJus
* Come<i Wftrwic. et Uolbud, nupor de paroch.
' H* Martini in Campia in Com. Middieser,
* Carotus Dominus MoHuiIt Baro Mohun de
* Oltehatiiptou, in Com. Devon, uuper de pa>
* racii. pm'd, ia Com. ^liddlesex. pned. Ri-
* e hard IIS French, nuper de paroch. prrcd. in
* (^m. MiddleaeJc. prsed« Gen. Roj^erus James,
* nuper de paroch. pned. in Com, Mtddletie:^.
* jirvd. Gen. et Georgius Dockwra, nufier de
cb. pned. la Com. Aliddles^x. prsd. Gen.
I prae ocults aiiia non hahenies, sed in -
lione diabohca moti et sediirti, iricesimo
ctohriSf Anno ffegni Unmini Gidielmi
til, I>ei gra. Aoijl, 8coc Fraoc* et Hibern.
jis, Fidci Defciis* iScc, decimo, vi et Liriiiifif
^ 6tti, apud paroch, pnetl, in Com. Middlesejc.
* ^nrd. in et super qiiendam fliciiaidum Coole^
* Ar. in pace Dei et dicti Domini Reg^is, nunc
* adtUQc et ibidem existeo. fetoiiice luluniarie
; lamlitiis suis prtecog-itat, insult, fecer. et
\ Edwarduii Come** Warwic. et Hol-
\ cum cmodm. gladio f Anijlice a sword) de
^et chalibe i^onfec*!. valor. quiuc|ue solidor,
ipse idem Edward us Com csi Warwic.
WwQ^^ in maou sua dexlra ad tunc et
exiraet, bubiiit el tenuity pnetai. Ri-
t Coole in et vuper siiiijitram part, pec-
-ipsiufl Hjcardi Coote prope On, C<d^ar
fliCe the Collar Bone), ips^ius Rtcardi
► ad tunc et ibidem felon ice ?oluotahe et
^ ex nmlitia §u« pra;co;^itat. ptjrcussit pupagtt
et inl'omvit (Aii^^lice did iilrike, stah, and
^ruiit in) dan!j eidem Rldiardo Coote, ad-
Ituiic et ihidem euin ^^ladio extract. pmetL in et
puper diet, sinislrnm partem pectoris ipsius
ci. Coote, pi-0|H! Ob Cwtlar (Aojjtice the
ollor bone) ip«iLm Ftici. Cooie unum vuliius
iioctal. (Antrlict' out moiial wound) bduid.
dinudii uniui^ pollici^ et |>ruluiid. quinq; poU
3 urn \ de quo qmdem vultit-re mortaL pned.
cui. Coole adiuQC et ihm. iu^lantcr ohiit.
^t qd. |inL>d, Caroltist Dmis. Mrdmu, Ricuit.
Fretich, Rojrrrus James et Georgius Dock-
adiufic et ilim. (Vlnnice voluniarie et ex
liia suia pnL'COjjfitat. t'uer. presen. auad*
■bellan. c^infortun. assii^ten. el mannie-
* aen. fineliit* ^dniin. Comil. \Var\rir. ei Hot-
* hmd^ ad pn^fat Ricum. Coote, ijiodo et forma
* prtrd. ftloniif voUmtarift et iX maiitin sua
iiiK-fticirnd. et niurdraniJ. Et sic
(imed. supiT «iacfm. suam in^d. die. qd.
, Cotnea Uar\?ici ct iiatlaTid, Car<jlu5
Di J, RojjferasJamea
ei « ^^ i , If. RiL-um. Coole,
mofto et Ifirma pritd^ lejonice %'oluntarie et ex
matifiis »Km pi-iccoLfitat, inted'ecer it mur-
dntver. contra |>acem del. Domiju Rey^ nune
i 'ofon. et Di^nitat. autts, Sec.
*■ Ricus. Ftench, 13 .Tanuur. 98. pon. sg CuI.
de Felon, et Huinicid. taut, ^jtm cid, de JVIur-
dro. c:italb nulla. Pet. Librum. J^t ut Cle»
ricu^. Cremaijo rrspecluuiur qnotiaq; (kc<
* Ro^fcrus James, i;l JauU3\r. 9B. Don secuf,
de Felon, et Hfimicid, t.int. Nou cul. de IVIur-
dro. catalla nulla. Fet. Librum. Lcg^it ut Cle-
ricua. Cremafio r(*spe€tufttnr quoin^f); he,
* Billa vera, Samuel CnvitUnriie de pa-
roch. Sti. Warlioj in Ciiinnis in Com. Midd.
Yoman.— Williis. Cripps ile paroch. pi*«ed, in
Com. prsfi. Yoman,^ — Henricus Fomfi'et de
f>aroch. pr«d- in Com. pnrd. \fiman, — Wit*
us. Sa!mon de parocli. prr^. in Com. pra-d.
Chirurg-ua.— RobliH. Applrgaie de paroch.
preed* in Com. pned. Yoroon, Jr/r. in Cur,
* Midd. ss. Mcmorand. qd, ad Deliltcmtton .
GaoltE Dni. Re^is de Newtfate tent, pro Com.
Miild. apud Justice If all m 1e f ltd Uuiley in
Nuhnrbiis Ctritat. tendon. dieMprcnrii scitt,
aeptimodie Scpterabris, Anno Regni l>ni. nri.
Gulielmt tertk Dei (frat, An^l. Hcf>\. Frnne,
et HiberniiE Reps, Fidf i Defmjs. &c. decimo,
coram Franco Child, Mil. Major© Ci?^U^l,
London. Georg^J 'Frcb^', Mil. Capital. Justic.
dd. Drii. Reg-is de Bunco, Littleton I*owifi,
Mil. uno Baron. 8ccii. diet. Dtii Re^is, TliO-
ma Stamp, MiL Edio. Clarke, Mil. Aldris,
diet. Cifilat, London. Sulnthiel. Lurell, Mil.
Serfien. dci. Dni. Re{jri« ad Lesrem ac Recor-
datore diet. Ciflttl. London, et aliis Hocirf
snis Justic. dci. Dnt. Rr^is ad Cjaolam Ip&mit
Doi. Regis de New^te praed. ilc prisonar. in
eadem existen, deUberand. assign, ten. Ro-
bertus While, gen. Corooalor dci. Dni. Re? is
infra Libertat. Decani et Capituli EcclFee.
CoHe^at. bti. Petri Wefstm. Civitat. Burgi et
\^ll» We5lm. in Com. Midd. prred. Etper
manus suas propria^ deliberarit hie in Cfur.
quandam inquititioii. de morte Rici. Coote,
Ar, coram eo nuper capt. in Cur. hie de Kc-
conlo in forma juris terminand. Quie quidem
Inquisitio huic Scbedu be annex, est,
pon. ce
' CiTitas, Burgus et Villa. W«^tm. in Co
Mtdd. Si, Inquisitio indentat. capt. pro Di
Eege apud paroch. >ih Martini in Cam pis inf
Libertat. Decani et Capitli. Ecclestoe Coll
giat, bti. Petri Westm. Ciutnt. Barjji et Vi
Westra. in Com, Midd. triet^simo die Octobrisp
Anno Re^ni Dni. mi. Guliphnileriii Dei era.
Angl. i^oc. Fr&ne. »t Hiberuix Regis, Fidei
Detensoritj, kc. decimo, coram Roherio \\ bjtc,
gen* Coroitatore dci. Dni. Rejjis Libertat.
prted. super vi!ium Corporis cojuidato Kici,
Coote, Ar. ibm. jacen. mort. per sacrm. Jobtl.
Harris, Peiri 8(d«jmon, Hici. Xcwgcnt, Will
Frver, Hamuelin Thomson, Jacobi Timber
Uck, sen. Jacobi Tiioberlick, jua. Rici. Jack-
son, Johis Fiucliy SSamueJif Powtil. Samuvlis
3P
ilS^H
947]
11 WILUAM IIL
Trkl qftht EarlqfWarmuik^
* Dimont, Robti. Gihrick, Joliis P^olin, Jo-
* sei»lii Vernou, Thorns Kiuithson, Aiidre«
* Rugert et David. Jones, proborum et lega*
* Hum liomiD. Libcrtat. pneil. jurat, et onerat.
* ad inquireiid. pro dto. Dno. Uege quaudo
* qualitei* et qiioiiiudo pnut'at. Ricuti. Coote ad
< morteui suain dcvcnii dicunt super sacrm.
' siiuni prnd. qd. Edrus Comes n arwic. et
* Holland, nuper de parocli. 8ti. Martini in
* Camfiis iiifVa Libertat. prsed. in Com. pned.
' Carolus Dniis. Mohun, nnuer de parocii,
' praed* infra Libertat. pned. m Com. praid.
* Ricus. French, niijicr de paroch. pned. infra
< liibertat. prted. in Com. prsed. gen. Rogerus
' James, nuper de puroch. precd. infra Libertat.
< pned. in Com. pned. gen. et Georgius Dock-
* ura, nuper dc paroch. pned. infra Litiertat.
* pr«d. in Com. pra'd. gen. Deum prte oculis
* suis non habentes, sed Instigatione diaboitca
* tnoti et sciluctt dco. tricesimo die Octobris
* Anmt decimo supradiclo, vi et arinis, &c.
* a pud p:»roch. pncit. infra Libertat. pred. iu
*■ Com. pncrl. in et super preefat. Ricum. Coote,
* in pace Dei et dci. Dui. Regis, nuno adtunc
* et ibin. cxisten. felonice voluntarie et ex ma-
* liciis suis precogit. insult, ^ecer. et qd. prad.
' Ricus. FrcDcli, cum qaodam Gladio (Aneiice
* a rapier) tie ferro et cbaiibe confect. ▼uoris
* <|uiuq; solid, quem ipse idem Ricus. French,
* iu mauu sua uextra adtunc et ibro. extract.
* buit. et tenuit prefat. Ricum Coote, in et
■ super tunistram partem pectoris ipsius Rici.
< Coote, prope Os Collar (Auglice the colh&r
« bone) ipsius Rici. Coote, adtunc et ibm. ielo-
* nice voluntarie ct ex malicia sua precoifitat.
* percussit et pupugit daus (.'idem Uico. Coote,
* adtunc ct ihm. cum gladio pripd. extract, in
* et super pra^d. siuistram partem pectoris i|>8ius
* Rici. Coote, prope diet. Os Collar ipsius Rici.
*• Coote, unum vulnus mortale longitudiuis di-
' raid, unius pollicis ct profnnditatisquinq; pol-
' licium, de quo quideui vulnerc mortali prccd.
'' Ricus. Coote, apuil paroch. pr«ed. infra Li-
* bcrtat. pned. in Com. prad. iH^ta^ter obiit.
* Et qd. predicti Kdnis. Coiuos Warvvic. et
*• Holiund, Carolus Uiius. Aloliun, liogirus
« James, ct (icorgius Dockwra, ailuiiic tl il»m.
* felonice voluntarie et ex malii.-iis suis [jra*- ;
* cor^fitat. fuer. pi-escntes auxiUaiitts abeUantos ,
* couforl-tuitrs assisteiites oi inaniitenentos pra*- i
* fat. Ricum. French, ad predictum Ricum. {
* CiMito, ill fonna pried, felonice \oluntarieetcx I
* mnliria sua praToj^^itat. interticicnd. «*t mur- !
" draiid. Et si<*. Jur. ;>i\i^d. dicunt su|)cr ^:ici-in.
* SUUU1 pra?d. quo<l pr»Ml. Edrus. Comos War- i
Miici ft Iloiljiid, <>aralu< Dnus. .Molnin, lii- I
* nis. Freii''u, Uoaerus James ft Georjjius '
■ DocUwra, prA-fat. Ilicuin. Cooto, modo et
* forma jira'di'-'f. f^'*>!;i»:e \ohinlaric et ex ma-
* liuiis ki.is pru'ciiviiat. inltrlWcr. et mur-
* di-a\i".*. cujilra pdieiu dci. Dm. Ko*»is nunc
' CiM'uii. ct l)iiri;:tat. swai^ '^c. \A ultcrius Jur.
* pra-il. <liu>:it iiiper s.icr»u. siuiiii privl. qd.
* SiiuiK'diolo M'i'.t IVtiitiiain ct Miinlriini pra:d.
' j^f ii*«i;«.s u. Olio ft forma [nu'd. f;ict. et per-
* PCiiPt. lipuil parocli. pru.'d. infra Lil>ertiit.
- n\"jit*\. iu Com. piTeil. fu^am fcccr. Clua*
et catalla terras tiye tenencnU piai.
« Ednia. Comes Warwict ct HoUand, Carolv
* Dnus ftlobun, Ricus French, Rogerm JaoM
'et Georgius Dockern, tempore PelooMe ct
* murdri praedict. per ipso* modoelloniiApni.
' ikci. et perpetrat. sive alii|U0 tempnre posIM
< usque diem Captionis hujns inqnisitioiui ba-
* buerunt Jur. prsd. peuitus ignofanL Ii
'oujus Rei Testimonium tarn prae&t. C«t>
' nator quam Jur. pmd. huie. loqiuiliou ■-
'ffilla sua alternalim apposuerunl die aawct
* Xuco, primo supra dcis.
* Ricus. French, 13 Jan. 98. pon. se coL ^
< felon, et. homicidio tant. Noncul. promanfn.
* Catal. nulla. Judicium super indictamentiUD.
* Rogerus James, 13 Jan. 98 pen. as eiL
* de felon, et homicid. tant. Noo. coL ■§
< murdro. Catalla nulla. Judiduin super Ii-
^ dictamcntum.
' Georgius Dockwra, IS Jan. 98. pon. le coL
< de felon, et homicid. taotnni. Non col. dco
< murdro. Catalla nulla. Judicam super Ib-
' dictaraentum.
< Midd. tf. Memorandnm qd. ad sessisBW
< de Oyer et Terminer Domioi Rem tent nt
( Com. Middlesez. apud Hieks-hafl in R. JoM-
< street in Com pned. die Mercorii sdlt it^
< timo die Decembris Anno Regni Dmhh
« nostri Golielmi Tertii Dei gratia nwie .
< Anglic, &c. decimo, coram Cando Lse,
«8amueleBuck,WiUielnio Withers, Frsn
< Tysson, Armigeris, et aliis Sociis sub Jmie.
< diet. Dom. Regis per Litcras PUent. ipn*
* Dov. Regis eisdem Justic. prcnominat. 4
* al. ac quibuscunque (|natuor vel piurilw
<eorum sub magno Higilto diet. Dni. Rfgii
< Angliee confect. ad inquirend. per tscrni.
< pnibor. et legalium horn, de Com. Middlesa
( prasd. ac aliis viis mod. et roed. quibus nw-
< lius sciverint aut poterint. tarn infra LibensM
< quam extra, \wr quos rei Veritas melius icin
< poterit, et inquiri de quibuscunque Prodicioo.
< Misprision, proilition. Insurrection. RebelliM.
< Controlactur. Tonsur. Lotur. et falais Faliri-
< ration, et aliis falsitat. Monet, hujus Regai
' diet. Dom. Regis Anglis et alionira Kc^-
* norum sive Dominior. quorumcumque ac ^
'■ quibuscunque Murdris Feloniis liomicidiii
* iuWrfection. Burglar. Rapt. Mulier. Cimgie*
* gat. el Convention I. illicit. Verbonim |m»li-
*■ tion. coadunat. Misprision. Confeilerat. fahit
*> Alleganc. Transgr. Uiot. Rout. ReteniioD.
* Escapiis Contempt. Negligen. Concelimea.
* iManuteneu. OjipressionibusCambiparciisUe-
* ception. et aliif> .Haletbctis et OU'eiMiis quibiv-
* cunque, necnon Accessur. coruudeni islia
'Com plied, tain infra Libertat. quam exirif
* per quoscur.que et qualitercunque habit, fad'
* perpetrat. sive com miss. Ac. de aliis Arties-'
* lis et circumsiantiis pneuiissa et eorum qse''
* libv.'t sen eorum aliquod vel aliqua quaiiM^-
* cuiique concf men. plenius veriiat. Bt ■'
* eaMlciii Prodiiioiips et ulia Framiwa sodiMi'
* et lurminar.d. sedm. Legem et Com. h^*
« Rcorni dci. Dni. Regis Anglis aisiga. f*'
fair ihe Mtarder qf Richard CooU^ esq.
A. D. ie!>9.
[850
Agidii lUddle, Rid. Read, Roberti
JoMhi PMbericli, Johb. Marriot,
A Tiall, Nicholai Barker, Ruberti
^, TtioroaB Brigg[9, Willi. Brace,
I WiUiams, Gconpi Bisbop, Thoinee
I, Job is. Lynn, Simuelis Lee, Rici.
, Johia. Cbeoey, Jobia. Fowler et Ro-
icbolaoQ, prolionim et legalium Ho-
Cum. iirad. ettuncet ibm. jurat, et
ad inquirend. pro dco. Duo. Res^e «t
Cora. pned. praesentat. exiatit qd.
Comea Warwici et Uailand, uufKsr
ich. S. Martini ih campis in Com.
/arolua Dnus. Mohun, Baro Mohiin de
DDpton, in Com. Devon, nuper rie Pa-
;>FKd. in Com. Midd. pned. Ricua.
, nuper de paroch. pned. in Com.
irad. gen. Rogerns Jamea, nnper de
preed. in Com. Midd. prsd. gen. et
18 Hockwra, nnper de parocb. prced.
. Midd. prsed. gen. Deum prro ociilis
a haleotea, aed inatigatione diabolica
aeduct. 90 die Octobria Anno Regni
II tertii Dei Gratia Angl. 8coc.
et Uiberain Regia Fidei dvien-
kc, decimo, vi et armis, &o. apud
prad. in Com. Midd. praid. in et au-
ndam Ricum. Coote. Ar. iu pace Dei
Dni. Regpa nunc adtunc eC ibidem
fdonice voluntarie et ex maliciia aula
itat. iniult. fecer. Et qd. pned. Cornea
VL eft Holland, cum quodam Gladio
e» a Sword) de ferro et Cbalibe con-
iloria quind; aolid. quern ipae idem
Comea Warwici et Holland, in
ua dextra adtuuc et ibd. extract, huit
t, prefat. Ricum. Coote, in et super
n partem iiectoria ipaina Rici. Coote,
>8 Collar (Anglicei the collar bone) ip-
ci. Coote, adtunc et ibm. felonice vo-
ct ex malicia aua pnecogitat. per-
jpugit et inloraTit (Aoglioe, did strike,
<d tiiroat in,) daoa eidem Rioo. Coote,
etibm.iuim gladio extract, pmd. in
r diet, siniatram partem pectoris ipsins
sole, prope Oa Collar (Anglice, the col-
e) ifwiua Rici Coote, unum Vulnus
([Anglice, oue mortal wound) latitudi-
iiidii pollicia et profunditatia quino;
m, de quo quidem Vidneri mortal i
Ucua. Coote, adtunc et ibm. instanter
'X qd. pr«d. Carolua Dnua. Mobun,
Freoch, Rogenia Jamea ft Georgius
ra, ad tunc et ibm. felonice fulunUric
taiiciiaauia pracogitat. fuer. prcscntes
itea abettantea cMmfbrtantea asaisteutea
nteuentea praBtat. Edrum. Com item
^ et Holland, ad prftt'at. Rienm.
BOdo et forma pned. felonice volunta-
t malicia auaiinBCogfitataintprticiend.
rand. Et aic Jur. pi-u!d. au|ier aacnn.
«d. dicuDt.qd. predict. Edrua. Comes
i et HoUaudy Carolua Dnus. Mohun,
PffOBcb, Rogerus Jamea, et Georgius
n, pniftt Ricum. Coote, modu et
nMl. Moniee ?oluntarie et ex maliciia
, et. miinirartriint
ttNitA paeemdd. Dni. Regis BUnc. Coron.
eft Digmtat auas, &c. Per qood Praeceplum
eat Tic. Midd. qd. non omitteret, &c. qiiin ca-
peret predictos Edrum. Comitem Warwici et
Holland, Carolum Dniim. Mobun, Ricum.
French, Rogerum James eft Georgium Dock-
wra, ad reapondend. Ace. Quod quidem 1n-
dictaaientum prefat. Justic. del Dni. Regis
(\^r dcas. Literaa )>aten. ipsius Dni. Regis
eisdem Justic. pnenominat. et aliis ac quibua-
oonq; qnatiior Tel pluribus eomm aub magno
Sigillo dci Domini Regis Anglica ut preiertur
confect.) poetea acilft. ad Deliberationetn
Gaols dci. Dni. Regis de Newgate tent, pro
Com. Midd. pned. apod Justice Hall in le
Old- Bailey in Suburbiis Civitat. Lond. dco.
die Mercurii scilt. aeptimo die ejumlem Men-
sis Deoembria Anno Regt;i dci. Dni. Rccfls
nunc decimo anpradicto coram Francisco
Child, Mil. Majore Civitat. London. Georgio
Treby, Mil. C|ipiul. Justic. dci. Dui. RegiK
de Banco, Littleton Powis, Mil. uno Baronuni
8oii. dci. Dni. Regis, Thomas Ntampe, Mil.
Edro. Clarke, Mil. Aldris. dcoe. Ciritat. Lon-
don. Salathiel Lovell, Mil. Hervien. dci. Dui.
Regia ad Legem et Recordatore dcee. Civi-
talis London, et aliis Sociis suis Justic. dci.
Dni. Regia ad Gaolam dci. Dni. :Regis de
Newgate, pr«d. de Prisoiiar. in eadem ex-
istcn. deliljerand. asai^i. per manna suaa pro-
prias dcliberaveront bic iu Cur. de Recordo in
forma juris, terminand. &c. Super quo pciatea
acilt. ad dcliberationem Gaobe dci. Dm. Re-
fia de Newgate prmd. die Veneris acilt. l;i die
an. Anno Regni dci Dni. Regis nunc decimo
snpradicto coram Franriaco Child, Mil. Ma-«
jore Civitot London. Edro. Ward. Mil. Ca-
Pflal. Baron. 8cii. dci. Dni. Regia Henrico
Hatsali, Mil. uno Baron. 8cii. dci. Dni. fte-
gisTboma Stamp. Mil. Edr. CUirke, Mil. Al-
dria. dvse. Civitat. London. Salatliiel I^vell,
Mil. Servien. dci. Dni. Regis ad Legem ac
Recordatore diet. Civitat. Loud, et aliis soctis
suis Justic. dci Dni. Regis ad Gaolam ipaioa
Dni Regis de Newgate predict, de Prisonar.
in eudem exiaten. dcliberand. assign, vener.
prsedict. Ricua. Frciicb, Rogenis James et
Georgius Dockwra, sub custud Willi. Guare,
Alilitiv, et Joseplii Smart, Militis, vie. Cum.
pned. (in custoil. cujus ex causa pned. in
Gaolam de Newgale piied. prasauteacommiaai
fuer.) Ad Barram hie duct, in propriis perso-
nis suis et statim de pmemissis in liidicta-
roeoto prsd. suiwrius spccificat. eis superiua
aeparatim imposit. separatim allocut. quoiiter
ae velint inde actjuietari iidem Ricus. French,
Rogenis James et Georgius Dorkwra, sepa-
ratim dicunt qd. i|Mi non sunt indu cuiiiabiles
nee aliquis eoruni est iude culpaliilis et inde
de bono et main separatim. pon. sc super
priam, &c. Jo. immediate ven. inde Jura,
coram pnrfat. Jusiic. dci. dni. Regis ult.
noiat. bic, &c. Et qui nee, &c. Ail recogn.
&c. Et Jur. Jui-e. ill. per pnelat. Vic. ad boo
iinpanellat. (scilt.) Chrua. Rednap, Thomaa
Moody, Thomas Dunck,SiiDO. Smitb, Jobei.
SmiUi, Michael Milce, TbomM Rowdl, Nft-
951]
11 WILLIAM IIL
* thaniel Lee, Joseph ns Devenisli, Henricui ;
* Bradbury, VYillus. Giles, et Johes. Burgoyne,
* exacti vener. qui ad veritat. de et super pne-
* missis pned. dioend. electi triati et hirati
* dicunt si: per sacrm. suum qd. pried. Kicus.
' French, IIo£feruK James et Gcorgius I>ock-
* \vrik, sunt rulpabllcs, et miilibeteorum est cul-
* pabilisde Homiciillo et Fflonica lotert'ectione
* prtelat. Hici. Coole, in Indirtamento pned.
' siificrins nominat. Etqd. iidcm Ricus. French,
* Rog^enis James et Georpns Dockwra, teni-
* pore Feloniee et Hoinicidii pned. |)er ipsos
* Uicum. French, Rot^^erum James et Georgi*
' um Duckwra, in forma prerd. commiss. seu
* imqnam postca non huer. nee aliquis eonini
' huir. nee hcnt. ncc aliquis eorum net. ahqua
' bona seu catalla t(?rrns sive teoemcntaad noti-
* ciam Jnr. pned. sed iidcm Jur- ullerius dicunt
* super sacrum, suum pnod. qd. proed. Ricus.
* French, Rog^crus James etGeurgmsDockwra,
* non sunt culpabiles nee eorum aliquis estcul-
* |>ahilis de Murdro praed. in Indiclamento
* prced. superius spcciiicat, eis siiperius separa-
* urn impoit, prout iidem Ricus. French, Ro-
' gerus James et Georglus i)ockwra,pro seiftsts
* superius plitando. allegaver. nee seipsos ea
* occone. unquam retraxer. nee eurum aliquis
' se ea occone. unquam retraxit. Super ^uo
* visiset per cur. hie intcUectis onmibus et sm-
* gulis prs missis Cons, est per cur. hie qd.
* pned. Ricus. French, Rogerus James et
' Georsins Dockwra, quoad Munlrum praed.
' in Indictamento praed. su|)eriu8 spec, eis su-
* perius separatim impoit. sint quiet. Et eant
* et quilibet eorum sit quiet, et eat inde sine die,
* &c. Et superiiide stotim separatim per cur.
* hie qufcsit. est de praefat. Rico. Frcncii, Ro-
* gero James et Geory;io Dockwra, si quid pro
' le habeaiit vel discere sciant, vel aliquis eorum
' aliquid pro se habeat rel discere sciat quarc
* cur. hie ad Judiciurn et Exocutionem de eis
* et corinn quolibet super Veredicto pitcd. quoad
* Hoiiiiridium et Felonicam Intcrreciionem
* protfat. Hiri. Coole, prorcderc non debet, qui
" separn!ii:i dicunt qd. ip*:i sunt Clerici v\ quili-
* bet covnm c*.t ('kriousrt scpnralini pctunt
* Uenclifinm Clerioale eis et qsilibrt eorum
* in hac parii* al!nc;:n v.i siujv.'v Ii'k* (iraililo
* eisdom IJico. FrrMcli, !xt*p;rrn James et Geor-
*l»io J)orl;wrri scpnrniir.i y.rv vr.r. Iiic l.ibro)
* iidem Ricus. I-'rcurh, K; :^':i!:«« James clCicor-
* ffius Dockwra, Fcparatiiii Icj^unt ut CM« rici
* vt qtiiliiut eorum Icqiil ut Clcricus ; sed qui
* cur. dci. Dili. \{i^g;[^ hie et pnrfat. Justic. dci.
* Dui. Reikis ult. noint. <le Judicio suo de et
* super rnrm'issis prtiMl. quod llomicidium
* pr;cd. €'t Fulunicaui Iistciicctionem pnctat.
* J(ici. C.'oote redilend. n(-iidui.i advisantur,
* Mco difr.7 inde dat. e>t pru'lht. Rico. Frencii,
* Romero James et Cieor^io Dockwra, in statu
* quo nunc. \c. usq; prox. Gnolrc deliberatio.
* nem dci. Dni. Regis de Newi;-ate, pned. pro
* Com. Midd. pra-:!. tenend. de Judicio suo de
* et super pv;T:missi.s illis aud. \'c. Eo. qd. pne-
*tat. Judic. dci. Dni. Kcgis ult. noiat.ct cur.
' hie iudsnondum, ^:c.'
Trial ofihe Earl of WaroHck^ [flSS
Z. H. 5. Is it your tordsbips plcasare tki
the Judges may be covered f-^Lordt. Ay, t}
[Then the Judges put on Iheur caps.]
CI. of the Cr, Serjeant at Armt, make pn
damation.
Serj. at Armt. O ye«, O yea, O vet ! cbii
governor of the Tower of LoodoD, oriDg fM
the body of Edward earl of Warwick and IM-
laud, yi»ur prisoner, forthwith, on pam aodfoi
will fall thereon.
[Then the earl of Warwick was brouirbt h
the bar by the deputy -governor of the Tow*
of London, having the ax carried belbre hm
by the gentleman gaoler, who stood with it a
the bar, on the right hand of tlie prisoner, ton-
ing the edge i'rom him ; the prisoner at Uii^
proach to the bar making three bows, ooeto
his grace the Lord. High Steward, the other d
the peers on each hand ; and his grace sod tin
peers returned the salute.]
Z. H. S. My lord of Warwk;k, yoar lordi^
is brought Mure this great judicature, is oi4#
to your trial, ^'ou stand indicted by the fpA
inquest for the coimty of Middlesex, as gnihy if
the nmrder of one of the king's subjccUj tt
whose blood justice requires a strict inqointiDl
should be made.
Your Ion kliip is called to anawer this da^
before the whole body of the bouse of pecifn-
sembled in parliament. It is a grett miAr-
tune to be accused of so heinous an oftsffi
and it is an addition to that misfortune, tok
brought to answer as a criminal before fodi id
assembly, in defence of your estate, your hfr.
and honour. But it ought to be a support a
your mind, sufficient to keep you from srakiig
under the weight of such an accusation, ika
you are to be tried l>efore so noble, disoeniii<«
and equal judges, that nothing but j^our sn
guilt can hurt vou. No evidence will be r^
ceived, but what is warranted by law ; nc
weight will belaid upon theeridenoe,butwhatii
afrroeablo to justice; no advantage willbetakn
ol yiiur lordship's little experience in proceed
ingsofthis nature; nor \>ill it turn toynii
prejudice, that you have not the assisUiiceff
counsel in your defence, as to tlie fact, (whid
cannot be allowed by law) and their lordship
have already assigned you counsel, if any Dtt
ters of law shouM arise.
Your lordship, throughout your whole trial
may assureilly promise yourself, to find ai
the candour and compassion which isounMilCB
with impartial justice ; beyond that nothing i
to he expected : their lordships can nerersofr
tiirget themselves, as to depart from wbili
right, and to draw the guilt of bkMMl spM
their own heads ; but if your lordship is isM
cent you are safe.
My lord, it will be retjuisite for yon to nt^
lect yourstdf upon this occasion, inthski
manner you can. You ought to hcv wiij
tenqier what the king's counsel have to ■}
without inter nipting them ; and lo bcsiM
carefully to the w itnesses produced afU9ity»
.that you mny to reftdy to cross -examine them
mlf you Und catise, antf to make your ob^erva-
rtioos upon ibe evidence when the proper lime
comes for your lordship to make your defence :
of which 1 wi)t Dot fail to give you notice ; and
ivbcii that lime doe® come, your lordship muv
be assured J yourself and your iTtUiesses will be
licftrd with great patience and atteulion ; and
wbeti my lortls have heard and considerefJ the
wbole matter, the judgment wtll uiiquestion-
dUy be according to the rules of justice, and
flticb as witl become the hoDOur vi* this high
cotirt,
[Bead the Indictment to ray Jord.]
B. of Warwick. My lord, I beg I may have
Ibe use of pen, ink, and paper.
L. H. S. Will your lordships please to allow
my lord Warwick, pen, ink, and paper ?
Lorth, Ay, ay.
^L, H. S, Can-y j>en, ink, ond paper to my
l0rd. (Which was done by ibc Clerk.)
L, M, S, My lorrl, your lordship wiitdo ^vell
to gire ai tent ion while the Indictment is read
to you. Read it to my lord in Enj^lish.
Ci> qf^tkeCr, * Your lordship slatidd indicted
by the name of Edward earl of Warwick and
Holland, late of the parish of St. Martin-in-
Itie- Fields in the county "f ftliddlesex ; for
that your lordship, together vfith Charles lord
BlohuUi baron Mohun of Onkehampton in Ibe
county of Devon, Inte of the parish alm^^id,
id the county of 111 id d I e?;ex aforesaid^ Uichanl
French, late of the parish aforesaid in the
county of Middlesex albresaid, gent, Roger
J«m€9, of the parish aforesaid in the county
of Middlesex aforesaid, pent, and George
Hockwra, late of the parish afort^said in tbe
county of ]Middle<;ex aforesaid, gent, not hav-
ing the fear of God before your eyes, but
being moved antl seduced by the instigation
of ihe devil, the 30th day of October, in the
tenth year of the reign of our sovereign iord
William tbe Third, by the grace of God king
of England, Scotland, France, and frelaud,
defender of the faith, ike. with force and
arms, bcc. at the parish aforesaid, in the
county of Middlesex aforesaid, in and upon
ooe Hichard Coote, esq. in the peace of
God, and of our said sovereign lord tlje
king, then and there bcin;]^, fVloniously, vo-
luntarily, and of vour m^ilice aforethought,
did make an assault ; ami that your lordship,
theaaid Edward carl of' Warwick and Lii»U
land, with a certain sword made of iron and
tieel of the ?alue of five shillinirs, which vou
tbe said Edward earl nf Warvtick and llol-
land, in your right hand then and there had
and held drawn, the aforesatil Richard Coote,
in and upon the left part of th(' breast of him
tbe said Richard Coote, near the collar bone
of him tbe saiil Richard Coote, then and
there felooiouiily, voluntarily, and of your
malice aforethought, did strike, ^tab,'anif
thrust iO| giving to the said Richard Coote,
then sod there with the sword drawn afbn^^
«ai(l| in and upon the letl part of the breast of
Mum the said Richard Conte, near the collar
* bone of him the said Richard Coote, one
* mortal wound of the breadth of half an inch,
' and of tlie depth of tive inches, of which aaid
* mortal wound the aforesaid Richard Coote
* then and there instantly died ; and that the
* aforesaid Charles lord Mohiin,Richar*l French,
* Roger James, and George Dockwra, then and
* there feloniously, voluntarily, and of their
' malice a tore thought, were present, aiding,
* abetting, comforting, assisting, and maintain*
* ing you the said Edwanl earl of Warwick and
* Holland, the said Richard Cooie, in manner
* and form aforesaid, feloniously, wilfully, and
* of your malice aforethought, to kill and mur«
* der ; and so you the said Edward earl of War-
* wick and Holland, and the said Charles lord
< I^rohun, Richard Freuch, Roger James ami
* George Dockwra, the aforesaid Richard
* Coc»te, in manner and form aforesaid, felo-
^ ntously, voluntarily, and of your malice afore-
* thought, did kiirand munitr, against the
* peace of our sovereign lord the king, that now
* is, his crown and dignity, Sec' How say you,
Edward earl of Warwick and Holland, are you
guilty (if this ftflony and murder whereof you
stand indicted, or not guilty f
E ♦ of Ha ru k k . N ot gui I ly ■
CI, of ihe Ct\ Culprit, How will your lord ^
ship be trieil ?
E. of Warwick, By God, and my peers.
LL of the Cr. God send your lordship t good
deliverance.
Then at the motion of some lords who sate
towards the upper end of the house, and by
reason of the distance could not distinctly hear
the Clerk, the Indictment was read ngaiu, the
Clerk standing near the upper end of the house.
CI. of the Cr, Serjeant at Arms, make an
O Yes,
Serj. at Arms. O Yes, O Yes, O Yes. If any
one will give evidence on behalf of our sove*,.
reign lord the king, agninst Edward earl of
Warwick and Holland, of the felony and mur-
der whereof he stands indicted, let them come
forth, and they shall he heakd ; for now he
stands at the bar upon his deliverance.
L, /f. .y. W ill your lordships gpve oie leave
to go down to the Wool pack, that I may hear
the better ? — Lords. Ay, ay.
Then his grace removed to the Woolpack,
and deU^ered the white staff to be held by the
gentleman usher of the black rod, who during
the whole trial always received and deliverer
hack the white staff upon his knees.
X. H. S. Mr. Attorney, are you ready to
proceed?
Att^ Gen, (Sir Tho. Trevor.) Ye*, my lord.
L. H, S. Then begin, Sir.
8erj. Wright. May it please your lordshrpf .
L. H. 5. Pray, Mr. Serjeant, mise your
voice as much as' possible you can, that my
lords towards the upper end of the House may
hear,
Serj. Wright. May it please your lordships,
this noble lord Edwanl earl of Warwick and
Holland, tbe prisoner at llie bar, stands in-
11 WILLI AAI III.
Ilbr ih« friomouK killiti)r and miw'd«r af
HieHrd Cdote, aiq. ; nud lite iiiiUctincnt
I tlie lOtb ^«Etr Qf bi« mjijfsr^^'s rei|p], at iim
arifih of 8t, Martin- In- ib€-FieliJ«, in tiic
o«nty of lVIijklle&e»i tbe (vnsoner at Ibc Smr,
bp etfl of Wiiruick, togfetber with Charts
Drd M<>Uun, bat^n of OakehaiufvUiji, tiicbini
preoob, Hxiger Jani«?«, an*l Gaorge Doc&wra,
■nt. fdooioufily, volunliiHly^ aiul of llieir ma-
rafaie-Umu^rbt^ did make au a^uult upoa
lie taid Richard Cocitc, in the indieimctit
e*l ; and the indicliueDt cbergetli, tUat ll»^
|0f Wan4rti:k| at Ibe i^anie litne and plact,
||t fiivoril febaioB^ty, lolDiitarJIy, and of
oialice otWtt-lbougbt^ di4 «viv«' unla the
I Eiehanl Ct>ot<;f in or upon the 1d\ part of
Bio br«a»t of iiim the sajU Hicbard Cooi^, near
hiscoiUr-Uone^one mortal wound of tliehrtiaclth
Tbalf an inch, and of the d4:pib of dre incbci^,
* which imi ivoutid the iaid Richard Coot*:
brn and ibcrr instantly died ; and the indict-
ac;it further ^liarg^^s, thut ihti asdt] Charl^ lord
lob nil, llidiarit French » Eof^er Jom^ and
orjfc Dockivta^ the ^arl of Warviick, to
"jeomniil tbt* fi^bny and murder aforesaid,
vrefe then and tljerc akhn^, assistiug^, com-
f^irting, and aht;Ui[»g j and so the Jurorg
^argif, that be iti^ said Edward €ar] of War-
wick ani] Holbiidf Charity lord l^Iohun, Hich-
«rtl Frfriieb, Uiig^er James, and Geijrge Ouak-
vra, th& said 1 tic hard Coote, It^Jonionsly, vo-
luntarily, and of their tnaJice atWe-tbougbt,
at the i^arisb aforeaaid, in ihe county aforesaid,
did kill and [OLird4.'r, a^aiusl tliij peace uf out
«over^LgT) lord ibe kiug, bi.s crown and digniiy.
To this iudictmeni tbis noble lord the |>rijooer
at the bar, Ed ^ard earl of VV'ar^vick and Hi>U
land, has jdeadf^d not guiJty, and for his tnal
haih put himself Ujion my nohU lunb bis peers
hvta pre»eut ; we ftball call our eridance, and
if we nro?ethti fnct for L he king, we do n&t
doubt nut your lordNbips. wjU gire such judg*
inent for the sume as shall be just.
An. Gen. May it pka^e your lordshipi, I
ftm of counsid in thii^ cause for the king afipjust
tbii^ noble lord Ediiard earl of Warwick and
Holland, tbe prisoner at tbo b&r^ who standi in-
dicted by the |^aud jury of Ibe couoiy of Mid-
dlesex, has been arraignrdg and h now lo be
tried before your lorfkbiji^ fur th« fekkoinus
kiJIing and murdering of Mr. Coote, in tbe in-
dictmeut named ; the erid^nce lo make good
tbis charge aguinst this noble lord, it cutnes to
my turn to open to your ioFd$hin««
*My lordii, tbe case, as to the tact, according
io my instructioBBf is this ^ Upon Saturday, tbe
Sdlh of Qcuib4?r last, at night, my lord ofWar-
.wick, my lord Mohim, Mr. French, Mr, Docb^
wra, ami Mr. C^te, the utifortunaie gentleman
who wa^ kilted, met to^clher at one Locket's
wbo kepi ibe Greyhound-tavern in tbe Strand^
and there tbey staid liit It was \*fry I ale | about
twelve of the el ook at nit^ht, or thiteaboiitSf a
nuMieiifer wa^ «entby tbecooi^MUf' to f«tcii
anoiher geutterniin, Mr. Jame^ ; and Mr* Jamcti
coming to tbeni, m whu 0g$#iQD y^M kird-
"I
Trial ^ihe Ead ^ Wi^rmick^
«iiipit wiU W tohl hy ibe w«ti»e&w« i _^
uftbiT dock inilte montbgt on Sunday, t||
^mh nt Oeiober, tli«y all i!a»ne difwn m^ of Hi
rimm wlwta \\\^y hud hc^m m bl*f» t<»ll»'^
of thit bouife, and there* m tJie wit
tell ynur lord^hipti, itworda m^itm dtawn^
cbatr* wort! calM fur, ««Ht iwo
wojiL^ ni^rcsi al luuid<mui«, and tw«iifi
patiy Hcsnt into tlifltw cliidiv ; «
aud wliat pnsit mI that timr, the
tell ^um lurdsiliip4 % ibofl^ Idat g4il
chairs cjin^c out agnin, and tnon* c
cal Jui( Ibr, But I mnst arqnaini your
that ni^ )unl Muhuu^ ^vh«u tbe tw0 £
that went into tli*^ oliAirs ordlered 11*0 d
lo lake tlwm «p, M\i\ cajry iktta airsT,
to th fill to stop and go no farther, Itir
ahould he no qaaneling that nighi, anil tli^ fer
would Kisnd for tljr guifds and *f c«re tbrd*
and afttr tbis they cani« out ot ibe ehatrv igtiAi
it will appear there wr^reiiiwQnls draifii iaom^
all o1^ thtsm, and s>om<* wuutidfi given: mm
Qhm% bluing called for, and bruugbt, ih» atUr
lord thai b here at tbe Isar^ my kml f^f W»
wick, my lord Mobun, and llie «ther IbtirfW
tiemefi, went all iuto the ehair^ ami nvtlfci
cliairmou dhfections whither ihcy libould dfrj
them, at ba«tf(is@ tbe foremuat had dii
given them, and ibe r«!al were to fultow %
it was a v^y dark oigbtf but al last they
dl ic» Ldcesiar'Souartt ; nod tbey wtn; i«ldff&
a litUe on this side the tmU of Uiv fi^uart^iiJ
when the chairmen had set them do^i "
went avi ay ; but imiuedu^teiy souae of I
beard my lord of Warwick calling fut
agaio, wbu came towards ibe raiK,
they tbimd twn of the gentlemen thai
cariieil in some of the other chaira^ '
Mr* C^iole between them, and woidd
Ibe chairmen carried bim away to a sui
hut they found be was d^ing* and so wouMo^i
meddk' viitb him; atWrwarda tny loiii of Wir«
wick and Mr. French were oarried hy two d
tbe chairs to Mr* Amy^s, tbe surgeon atlfai
Bagnio in L^ing-acre, wheraMr. Frandi hs^
vYovmded, was iaken cure of pairticuhirly k|tM
reeommefnlation of my lord of WarwKk^MJ
tilts oiaster of ibe houM was called up, it "
fery lale ; Mr. Coote's sword was bronchi li
thai place, hut by whom it wap brt>u^bt
cannot esUiCtly sa^i . W bile my lord of H
wick and captain French wer« there, and uf
lord of Warvkick bad given ordera for tbv di
ing of himself, and forbid the opeoing of
door; there came the tsiber two gentletneei
James arKi Mr. Dockwra^ aitd upon ilietr "
ing at the door tbey were let in hy my
order, idter be liad discovered wha tbry n
lookbg ibrough tbe wickt4. Mr. iauirt
his sword dm WD, bul it was brokea. My
of Warwick'^* hand was slightly WfumdMl,
his sword bloody up to the bill ia hcni Iw
in, as will be proved by tbe um^mtmy
serf aniji iu tbe House. Thrre wtf a di
betvreen my lord, Air. Jauiea aiwlll
about going into the couuti
fP«gti Ui« awords wef9_
utry f buft
I 4 ^»^
fat ike Murder qflUehard Coote, esq.
A. D. 1699.
D Umm, and upon eoqairy, there was
fbond opoD Mr. French'i sword, but a
•al npoa my lord ot' Warwick's, of
eat aoiioe was taken at that time. Mr.
ho was killed, bad reoeired ooe woaod
I side of his hreast, half an iaeh wide,
deep, near the eidlar bone ; he had
UMrther woond upon the hfft side of his
Hh which your lordships will bear, in
^ment of the sorgeon, were mortal
and the e? idenoe will dedare the na-
kIs, the efidenoe does chiefly c
spend on circwnstances, the nwt being
le night, and none but the parties oon-
ing present at it; we shall by tbeefi*
lore Yonr lordsblpa, as it is, for your
t, and call what witnesses we have on
the king, against this noble peer the
at the btf, and take up your lordships
iirther in opening ; and we shall begm
luel Cawtbome ; he is a drawer at ue
here those lords and gentlemen were
and be will give you an account of
they came there, how long they staid,
ippened in the house during their
fre, and what time tbey went away.
S. Give him his oath. (Which the
'en. My lords, I doubt the witness is
', thai it will be difficult for him to hear
lions that we are to ask him, unless
have him nearer to us.
S. Mr. Attorney, my lords seem to
non, that it will be more for your ad-
md theirs, that the witnesses stand at
we tbey do ; which will oblige you to
r voice so loud, that they may hear
ases and you too.
en. Is your name Samuel Cawtbonie ?
one. Yes, my lord.
en. Where do vou live ?
. With Mr. Locket at Cbariog-cross.
rem. Did you live with him at the
nd tavern in the Strand the latter end
er]ail?'^Cawth. Yes, I did.
em. Well, pray will vou acquaint my
I the time when my ford of Warwick,
Mohnn, and Mr. Coote were at that
m feng they stayed, what happened
By were there, and when they went
. It was Saturday nigbt, the S9th of
last
-en. Pray tell my lords the whole of
wieikre in the matter.
. There came my k>rd of Warwick,
Mohnn, captain Cfoote, capt. French,
ihi I>ockwra, the 99th of October last,
King, to my master's house at the
nd tavern in the Strand.
'tn. How long were tliey there, and
■of night came they in ?
, Abmit 8 o'clock at night, my lord
^ ny lord Mohuo, capt. French, and
'i«. What day do you say it was ?
Cemth. Saturday, the f9tb of October last
Ati, Gen. How Mug did they continue there f
Cawtlu It was between one and two the next
morning before they went away.
Alt, Gen, Was any body sent for to come
to them there P — Cawth, Yes, Mr. James.
Ait. Gen, What time was that ?
Cawtk, About twelve of the clock.
Att, Gen, Did he sUy with them till they
went away? — Cawth, Yes.
Att. Gen. What did you observe past in the
company while they were there P
Camtk. I did not observe any thing of quarrel,
not so much as an angry word anoongst them,
tUl they came down to the bar and were going
away ; when they came down to the bar tbey
orderf^ me to call them chairs, or coaches ;
and there were no ooaches to be had, and so 1
went for chairs, and two chairs came ; for the
porter that went to call the coaches was a great
while before be came back ; and, as 1 said, I
going for chairs, there came two; but that
th^ said was not enough ; so more chairs were
called for, and at length there were more chaire
gotten; in the first three chairs, my lord of
Warwick, my lord Mohun> and captain CooCe
went away in ; and my lord Warwick and my
lord Mohun bid the chairmen carry them hom^
Att, Gen, Were there then any other chain
atthedoorP
Cawth. There were two more chairs at the
door, and another was called for.
Att. Gen. Did you hear any directions gives
where tbey should carry them P
Cawth. My lord Warwick and my lord Mo-
hun bid them carry them home.
Att. Gen. Did you hear my lord Warwick
or my lord Mohun particularly, and which,
say whither they would be earned P
Camth. I did hear my lord Mohnn say, cap-
tain Coote should go and lie with him, or he
would go and lie with capt. Coote that night,
for then* should be no quarrelling.
Att. Gen. Did thev upon that go away?
Cawth. Mr. French and Mr. Coote were in
chairs before niy lord Mohun or my lord War-
wick, or any of the rest.
Att. Gen. What then happened upon their
going into the chairs P
Cawth. My lord Mohnn came out to them
and swore, there should be no quarrel that
night, hut he would send for the guards and
secure them.
Att, Gen. What happened thenP
Cawth. Upon that, both of them came out
of their chairs and came into the house, and
there they came to the bar, three of them in the
passage by the bar, and three of them behind
that imssaf^e.
Att, Gen. Pray, will you tell what did reall}'
pass throughout the whole transaction P What
was done after they came in again into the
houiie *
Cawth. AfitT that, 1 was bid to call for six
chairs, if 1 conld sret no coaches, and so i did ;
and when 1 had brought what chain 1 could
get, and returned to the bar, I heard tlieawords
I
9m} 11 WILLIAM m.
eJnftb ; wlien the i words were dm vrn I cannot
iiay, nor by whom, it might he by ftM the siv,
for aiiglit i ku&Wt bec«o»e I was 'in tbe strict
lo coll the chairst aiiti wiieu f came bnek to tht^
houfi?, I was in hopes all bail beeti c^uietecj, for
thdr BwoiMis were puttkif up: and when ibey
went ft way In tbe cbaifs, I did hope tbey W€nt
away rrimidry-
AtL Gen. Pray, how did tbey gt> awajp
nUa went tugetber ?
Cawth. My lord of Warwick, mj lord M*i-
buu, iirvti captain Coote %vent in the tifst three
cbnirif thent ibr^e log^tlieff and bid the diarr-
mmi go borne ; the i>ixth cbntr ik at not iben
Att^ Gen. Wbentbat chair came, pray wbat
dirc'Clioiii were (ji^eu to it ?
Ciiwih. I did not hear them g^ive the chair-
men any directions al alL
lit. (Jen. Do you know any thiiig more
thmt wm done ai\er this time ?
CotffA. No, ray lor*l> not after they weol
fcway J after I returiUMi with Iheebairsrit wan
in two minutes lime ili^t they weni away^
Ait. it en. My (ords, I suppose be kncuvs n&
Mkoreot the matter.
£. if. S, Will yon then ask him un mare
questions , Mr. Attorney ?
Ait, Gen, No, my lords, unless ibl^zioUb
lord aball ask him any questfon*:, upou which
ir# akall liave occasion to examine bim.
L. H. S, My brd, has your lordship any
ouef tions to ask thia vvlineis ? For oovv" b your
timen, the king^s cotinsi^t hiring done e^atnia-
ia^him*
E. of fFfir. 1 denire to ask him, wbetber 1
did not bid the chairmen |fo home ?
L. H.S- If your lords^liip please to propose
^our question to me^ I will require ^n an!tn'er
to it rit)m the witness, and it will be tlie belter
heard by my lordi.
£. of Witr^ My lord, I desire to know of
ibis man, ubether, when t went awjiy ifi the
chair from his maf^ler's ho use , I did not bid the
cbairmen ^ home?
L. if, S. Witness, you hear my brd*s ijues-
tlnu, what say you to it F
Cauik Yea; my lord of Warwick did bid
the chairmen go home^
£. of I tar. My Inrd ; t bare another quea*
tioii to ask bim, Whether he k no via of any
quarrel there was between mp and Mr. Coote
a I that time, or any other time ; because wo
both ti$ed to frequent thai house ?
Can:tk. No, my lords, 1 nerer beard any
aiigry words between my lord Warwick and
Mr. Coote in my lile.
[Then lb« bnli towards Ibe upper end of the
House complaining that they did not hear his
Grace, the Lord digh Steward tvas [ileased to
repeat the question thus: 3
L. H. S. When my lord of Wnrwick hid the
» chaimieu ^ Iniaie, or at any other time^ did
vou obverfe that there bad been any quarrel
Mtween bis lordship and Mr. Coote?
H. nf War, My lord, I desire he may be
^3
m
TrmI nfihc Enrl qf i^amdck,
a»ke*J, aioc&^e both o»cd lh*t brniv,
til sit ttigbt, when t went away, or
aJter, I had h^^y quarrel with ilr. C
L. B^ S* Tlie question 10 y lort
that are the witness, lo answer, uc,
you did bear any quarrelUocf dr anpy^
to patts between my lord W^amick and
Co<ite that »ig:ht before or aJler tbey
dowtt, nr when ibey went awa j^ of M airy Olte
time?
Camth. Ko, mj lord, I never beard lay
angry words pa^ between liiena UiMi, norei*
at any time l^bre iu all my Ufe^ bijl I ^w%p
looked upon ibem to be very good IHcfNk^
B. of War. 1 di^ire be may be atiked, Wb^
ther Mr- Coote did not come ro that hou^r is
my company, and whether be did not Irfqatallf
eome to that bouse?
Ctmtk, Yes ; ihey used to be there eivj
day almost, and they aiine that ni^'^bt lognlir
in eomnany.
li. of H'fitr. r desire he may be asked, wk'
Iher 1 bft?e not been frequently in his cowpifijF
there?
Cttn^h* Yes; 1 say lery fi^ocmily, wmf
day almost, aometim^ twice a-day.
L. H^ S. Would your lordship a«k liini asf
other question ?
E, of fiar. My lor#U 1 ile^re he msv W
asked tbis question, whether he ktiow« uimj
parti^^ular kindt^s belweea Atr* f^oots AoA
me?
L. H. S, Do you know of any ^rlieidv
kindne&« between my lord Warwic'k and Hi*
Coote, the g'entlemau that was killed ?
Cit^th. Yes, my lord, there was alwiji i
^at kindness brttveeti tliem, as I obsetredi
it e^er wai: so, and 1 nerer heard angry wah
pass between tlseni, but they wen* tery goad
friends constantly ; I vtaiteil upon them |^caf>
raJIy when ibey were at my raaster^s hooiCt
wiiich was cilery day almost,
E. of War, I desire to know of this wiia^
w lie ther be does not reoremher, or e^n nami,
some particular kindnesses tiiat passed betirett
Mr, Cooieaud tne?
L. If, S. Can 5^00 specify mw paiitwhr
instances of kindness that passed hetwees Pf
Inrd Warwick and 1^1 r. Coote ?
Caaih, Ves; my lord of Warwjdf aid
generally to pay the reckoning- for Mr. Cocrief
and be did m at this time.
E* of War. My lord, 1 desire be nrwv tm
asked, between whom be apprebexkded die
quarrel to beat this time?
X, H,S. You say, friend, there weiT&swadi
drawn, and a quarmlln^ at the bar ; CB&yoa
tell between whom the quarrel wssF
Cui^ih. My lord War nick » my Jord Mobaii
and capt. Coote^ were all on one sid«^, and Ibt
other three were on the other side*
E. of War. Wiio were the two per^ond thil
it was uppreh ended the quarrel was tietweca?
I desirt? be may be asked.
L. if* 5. Vou say, there were three on die
one side, and three on the other 1 pfay . bei^i e«a
whoia did yov appreUend the qiturrcl bo be f
9613
Jot the Murder tf,BiAwd Code^ esq.
A. D. 1699.
[im
Ctmih. I beliere tliequamiwu between
Mr. Cooteand Mr. Frencli.
B. of War. My lord, I desire to know of
Uiki witness, what wonis he heard Mr. Coote
fay aAer he and Mr. French returned into the
house and came opt of the chairs.
' L. if. S, What' do you say to the question
my k>rd prafioses?
Cawih. I heard Mr. Coote say, he would
langU when he pleased, and he would frown
vfaea he pleased, God damn him.
£. of War, My lord, I desire to know, who
he thinks those words were addressed to ?
L.H.S. To whom did Mr. Ciwte speak
Cmmlk. Whether he spoke tliem particularly
%m Mr. Freuch or to the other two gentlemen
who were on the other side of the bar, i cannot
directly tell.
£. of9r«r. I desire to know of him, whether
Mr. Coote was not one of the three that was on
the outside of the bar 1*
Caotk. Yes, my lord of Warwick, my lord
Mobun, and capt. Coote, were of the outside of
the bar.
£. of War. Was capt Coote with me in the
beginning of the night at that house P
Cawik. Yes, he came at the beginning of
the night with my loi-d of Warwick.
E. oi'Peierk My lords, I desire to ask this
witness one question.
JL U.S. I think it is proper, my lords, in
nomt •!' methoil, to let both sides have d(»ne
More any questions bo askeil by any of my
■oble hnds.
E. of Peterb. I did apprehend my lord of
Warwick bad done.
L, H. S, No, my lord, not as yet : pray my
lord Warwick, what other questions has your
hwdsfaip to ask of tliis witness ?
£. of War. My lord, I desire he may be
asked particularly this question, whether he
pefceived any quarrel particularly between me
«ihI oapt. Coote when we went out of the
haiwr
L. H. S. You hear the question, did you
fmnmte any quarrel between my lord AVarwick
and Mr. Coole before they went out of the
Cumtk. No, I did not ; nor ever saw any
i|WBrifl between them in my lile.
£• nf War. I desire to know who paid the
nahooing that night?
CowCA. The reckoning wss called for before
J came in to take it ; and though I think my
h>rd of Warwick paiil for Mr. Coote, yet I can-
not ao directly tell, because it was c<»llected
hefiire I oame mto the room to receive it.
L, H, S, My lord, have you any thing more
'tn aak tliis witness?
£. of War, No, my iord, at present, tliat I
tliink of.
L. H. S. My h)rd Peterborouq^h, youv lord •
ahip desired to ask a question, will yuu :.jcase
ta propoae it now ?
E. iiPtierb. My lord, this witness seems to
take nntke of two tides, who were on the one
VOL. Xlll.
side, and who were on the other, and that Mr. ,
Coote apd my lonl of Warwick were oo one '
side ; I desire to know one thiug of him, >i-hat
reason he had to apprehend that they two were
of a side ?
X. if. 6\ Friend, you hear that noble lord's
question ; you seem to say, tiierc were three
and three ol a side. What reason had ytm to
apprehend, that my lord Wamick and Mr.
Cuote were of one side !' You must a\ plain to
mv lords how you Come (o make that judgment^
what reasonyou had tu tiiink so?
Cavth. liiey three, my lord Mohun, my
lord Warwick, and F'Ir. Coote, were on the ono
side of the bar ; and CQpt. Jaiues, capt. French,
and capt. Dockwra, were on the other siile of
the bar.
L. 11, S. So you said before ; but the ques-
tion which my noble lord desires to be satisAed
in, is this, how you come to spcuk as if there
was a qusn-el between three antl three ? what
reason hod you to tliiuk, that three were oo one
side, and three on the other :'
Cawlk. Their swords were all drawn, and
they stood three on one side of the bar, and
three on the other.
£. of Rochester. My lonlii, I desire to ask
this witness one question ; I think he told your
lordshiiis at firbt, that Jie did not perceive any
angry words among them; afterwanls he
c«)mes to talk of swords drawn omonKstv them
all, three on the outside, and three on the inside
of the bar ; I desire to know what was the
occasion of those swords btiiig drawn on the
one side or the other ?
Cawih. Whatsoever quarrel there was, was
amongst themsi^ives above staii-s, and I know
no angry words that passed between them when
they camo down to tlie bar.
L. H, a. 8ecwiiat you say ; how consistent
one part of it is with another! You said at
iirst, you did not hear of any ai^^ry words that
passed between them, and yet you say, all their
swords were drawn, and three wei'e on thoone
side, and three oo the oilier: and when yoii
were examined upon the motion of that noble
lord, what you meant by three on the one side
and three on the other, you said, my lord
Mohun, my lonl Warwick, and Air. Coote,
were on tlie oue side ; Mr. James, Mr.* French,
and Mr. Dockwra, wereon the otlier side : liow
could there be two sides, unless thert* was :i
quarrel ?
Otuth. I said, 1 dkl not hear any angry
words pass between them before they came to
the bar, or while they were al>ovc stairH ; but
they were three on the one side of the bar, and
three on the other.
L, U, S. But you have not given a satis-
factory answer to that question which the noble
lord, my lonl Peterborough, asked you, What
reason you had to anpreheud thai the noble
' lord the prisoner at the bar, and capt. Coote
were of a side?
Cawtk. My lurd Mohun came to the chair -
side, whtti capt. Coote and capt. Frenoh were
got into the two fuvt chairs, and told copt.
3Q
9»i iiUBu^yii nL
CMH^HNlibm ilMMli kBmmtm
ajglrttf telibat thijllirai^vylwWwwfalE,
■CnvA Yii» ■!▼ Iifif I dM'MBMMHl It IS*
Ati. Om. IfmjmMB ktdi Wi iiM oMi
thiir yirtiMt I^Mmf Mfc tteiwiteeM^wi-
<iiy%tlMitliwii«WM'€fii>iTdtttht%wr<fth>
bStm^ Mitwtciitmmy jkai m Im ■■■•
lMiiM|tkrMwcMMtlie€MM(K •nioiM
Mtbt^llMri MifltahtldmiiiKI^DMi
■M.tkit-k« kM giffn yoor IstddUM a^
m^vof MMmoByWliil MMM htkidit
mfmmkimi Umm wwif tfarai tiki Huwb of m
i< <r> wJMh wfll be wy mlwhl inhfa
"* ftttttbeloMyiriirifB
-cfnUet
CmM. laowdMDMIillhMitliewofdttlMt
Mr. CooU said, That he vooM lauffh when he
pleased, and frownwhen he pleased.
Mt. Qen. Pray, my lord, I desire he may
be asksd, who those words were spoke to, aiid
who thev were applied to ?
Camti, They were spoke to Mr. James, Mr.
FfiBcfa, tnd Mr. DddcwrS, who were within
aUbefthabar.
Ati. G#a. Did he apply those words to all
those particalar penoos ?
. Cawtk. Yes, aa 1 thought, for they three
were within the bar ; my lord Warwick,«my
lord Mohqp, and Mr. Coote, were without the
bar.
Ati. Got* Pray, my lord, 1 desire he may
be aikeCjIiis question. Was that before the
iipiafds were drawn, or afterwards ?
Otmih. It was before.
Alt. Gen. Then I desire he may be asked,
whether the swords ware drawn upon those
words r
Ctwih. Noymvbrd; the time of drawing
the awords was when I went ont to call chairs
and coaches ; and I know not who drew the
aweids firsts or when they were drawn ; • but
istei I came bade I fottnd them ali drawn,
md I heard them clashing.
Ati. Gen. Upon the oath yon have taken,
was those words that vou speak of Mr. Coote's,
that lie would laugh when he pleaaed, and
frown when he pleased, before the swerda were
drawBt er atar the sworda were drawn ?
CsvM. Before tlMaweid8w«eidnwn; ftr^
I did not see ihe swords dfa:Wii till 1 «ane
back.
L. H. S^ Uom either iitk dcaim to luk ^i
wiloess any questiods ; if xm^ tbem you omj
with dr^ 1^1 and you may proct^d, Mr. AHWatf^
to examiDe suiue other witn^i.
Lord Wharitm^ Aly k)fd» there wm s ij^m^
tion asked at the bar ihout the hindrrinf d tlu«
nuarret, and my lord Mohan^s desire to ptn
tf lem , and make them fVieadf ; I desire ihe wA*
uesi^i Idoi-^ li« go«ij awfty» may be aidcfd whst
he kuows of that mMter.
L. H. S. It bofl been observed fay my bnl,
that yoa said, \rhen tbey came d^wti lo ik
bar, and Ibe quarrel liappeoeft, sotncboiljr
baf e prwveoted it } pray repeat llui
again, Did joii observe any of
wt^re dis^io^ed to lake up the quarrel, and oiiis
them JrieDdSf and wbo tbey wereF
CtittK BIy lord Mobuo and my lord Waiwiel
said they would send for a iile uf mtV¥|UflMrs;
and my brd Mohuo did all he enuJd tu fan
and pacify Ihefu liil Ibe quarrel was orer i wd
my loid M nil (in particularly had h» Agar
pncked wjib end^^ivonriug (o cross IbdrfwoSf
aod keeping UK^m rrom fighting ^ whkib ww
&U he giot by it.
L. H, S. Do yon know that of yoor 0*i
knowledge P
Cam. His band wa^ bloody, and he said Mil
the bar I bul I was just catninor in again wbet
I beard bim say Mt ; but I eannot sa.j tbii 1
saw him hurt, for 1 was without Uie niuiea
the time when that w^a done.
Lord Godofphirt. ^ly lords, f desire to iti
ihh witn^$s one question ^ 1 o^icerve be b>^ ^
tokd my lords, there was not an angry poN
passed helween them betore they came daw
to the bnr t I would fain ask him tbis quifiitioflt J
wbetirer be was in the room all the mm fiH ]
tbey dui cotue dowa to tiie bar ?
Caw. I reoeiTed the
tbey came down to the bar*
Lord Gadt^km. And 1 dariaaha Mf l»
aaked, How lonff he staki io tlie roam wtahl
xeoeifed the reckoniiig ?
Cam. ItwaaabouttwoartlwMi
I staid IB the room^aad aat lannr.
£. of Warwick. Mvkird, Aian
haa been ezaaained, toM ]f
came down to the bar tliM \
oaUed for ; and wbea tiiay
and the other geiitleiBaB» Mr.
into the chairs, and afocrwarda thej.caaa*^
again^ and Mr. Coote aaid aona wapia ; lift
sire the witneaa aaay he a^had afrii, wfciat
was Mr. Coote spoke tbeae wwriai
was before or aAer the time tint iMia
the chair ; for I take it fa be yngfM^ ^^
Caw. It was after Mr. Coote MM atf|ll|
dwir, for the chairmen heard ttewnii vf.
rerily brieve. • •*
Att. Gen. My k>rd, 1 dcaare ha tnjr baai
waa there any reply made te tlMViMd^
any of those persons he sajn ka ifipl
were on the other skle? • Al*
jCte. .No, not OK wwpd imlt
66]
Jlar the Murder of Richard Ccoie, esq.
A. D. 1699.
[966
B. of WarwUk, My loid, 1 must beg the fa-
>iir to hare tlie qontioD asked ag«in of him,
betbcr I did not al tkat time endeaTOur to pre-
BOt any quairdlinflr, aod did not say I would
lU for the guard if tbey did P
Caai^. Yes ; my lord of Warwick did say so,
sd io did my kKd Blohun, and so I think did
[r. James.
Li H. & How came yon not to say so when
ov w«ftt aaked timt question particularly be-
ne ? TImd you said my lord Mohun endea-
Durod to prevent the quarrelling, and make
lem friaoifc,
Qm. Yea, my lord Warwick did so, and so
ii Mr. Jaoca.
L,H,S» I cannot tell whether any body else
lakea to ask him any questions.
Ait. Gen. My lorcl, be speaks of what this
Nble ford, my knd of Warwick, said ; hoi be
Ises not tell you the particniar eipreasums, nor
lbs time when my k)rd said them.
JL. H. S, You say, my knrd, the prisoner at
lbs bar, endeavoured to pacify the quarrel be-
Ivsen them ; but you do not tell my lords who
the quariel was between ^ nor when the endea-
swr was made li^ my kird Warwk^ to pacify it.
Csw. My hmlof Warwick did say be would
kie the guards sent tor.
LH.S. What time was that, belbie or alter
■y laid Mohun sakl ao ?
Csw. Truly, my lord, I do not know but
teit wu at uie same time.
£. H. S. Was it when the swords were
4nn, or before?
Csw. They spoke it both before ami after the
masiswere drawn^ aa I remember; tar the
mudi ircn not drawn while 1 was in the
J till I came back,
L If. 8. Were the aworda drawn when my
M Warwick apoke nf sending for the ^ruards?
Csv. Surely, my lord, it was before the
iswds wore drawn, when I was sent lor the
<htta,
LILS, You said there was no angry words
•mroI between them ?
Csw. Not above stairs, my lord : but I ap-
1 when tliey came down to the bar,
I three on one aide, and three on the
Ait. Gen. Pny, my lord, let him be asked
Ifcfowtion, Was it aite tbey were three on
Ibtene side, and throe on the other, that my
hid Mohun and my lord Warwick spoke those
«Ndi?
Csw. 1 apprehend the words were spoke by
Mr. Caote, That he would laugh when he
i, and frown when he pleased, before the
} were drawn,
LH.S. But that whkh my lords desire to
hem Ur What the time was when my lord
Wirviek and uiy lord Mohun declared their
Mrs. to part tliem and make them friends;
HNbw before or after the swords drawn ?
Ccv. Belbra aotl after ; for I waa absent
«Wn the swords were drawn.
.Earl Biten.. He says, that after my lord
■ibaa and my lord Warwick threatened to
aend for the luusqueteers, they promised to be
quiet. I desbre to know who he means by
Xhey?
Caw, Mr. James called to me, and said, I
need not go and call for the cruarrls, for ths
ouarrel was over. There is one thinyr more
that I forgot, my lord : After my lord Moliuii
and my lord Warwick were gone away iu their
chairs, and Mr. Coate, 1 heard Mr. bockwra
say to aapt. James aud capt. French, they did
not care a farthing for them, they would fitjLt
them at any time.
L. H. S. Who were together then ?
Caw, Capt. James, Mr. French, and Mr.
Doekwra, after my lord Mohun and my lord
Warwick were gone with capt. Coote.
L. H. S. Then Mr. French was with them?
Mr. I>ockwra said so ? — Caw. Yes, my lord.
Lord Wharton. If I apprehend him aright,
as to what he says now, my lord of Warwick,
my lord Mohun, and capt Coote, were gone
away at tliat timew
Caw. Yes, they were gone away in the three
first chairs, which my lord RiDhun bid go
fjord Whapion. Who does he say spoke those
words?
X. H, S, Yon hear my noble lord'a qnesr
tion, who apdco those woHi? Repeat 'them
again.
Caw. When my lord Warwick, my ford
Mohun, and capt Cooto were gooo, 1 lieard
Mr. Doekwra say to Mr. French and Mr.
James, we doa*t care m farthing for them, we
will fight them at any time.
Att. Gen. 1 desire to know, wbetlier this
wimess testified any thing of thia matter when
he was examined before £e coroner ?
Ccia'. No ; I forgot those words when I waa
examined bd^bre the coroner.
Att. Gen. flow soon after your examina-
tkm did you recollect yourself as to what you
now speak f^Cav. The next dav afler.
Ait. Gen. I pray, my lords, that he may be
aaked, whether be did in general give the same
evidence before the coroner that be now does ?
Caw. Yes, as to all but only those words, of
Mr. Dockwra's declaring he did not care a far-
thing for them, they would fight them at any
time.
Att. Gen. Bfy lord, I beg he may be asked,
how long it was after the fact was done that he
was examined before the coroner ?
Caw. It waa the next day, in the afternoon.
Att. Gen. Then 1 have thia question further
to ask, if vour lordships please, was he at the
trial of Mr. Doekwra, Mr. James, and Mr.
French?— Caa?. Yes, I was.
Att. Gen. Did he then give any evidence
of those words of Mr. Dockwra*s, after when
my lord Warwick, my lord Mohun, and capt.
Coote were gone ?— C^v. No, I did not.
Att. Gen. My lord, 1 have one questwn to
ask him then more, how he came not to awear
this matter at that trial ?
Caw. It waa out of my mind at that time,
and I bad like to have forgot it now.
■Vi
967]
11 WILLIAM UL
Tntd efike JSWW of Warmidt
I
Alt, G^n. My lord, wc htt e itone witli thii
ivJtiMss : J« k your bHsfirpft' pl*a*ure tlmt we
go OD lo ciiU our oilwr h Lt[kciu>cs ?
Xorrf<. ilr^ Av.
Jff. 0irw\ I'hen oor «eil ivitnesw?*, fny
bnis^ will be Uia cHoirmfr^ thai carrittl my
lord Mnhtm, my lord of War\rtttk, an J c»[itaiii
CcH^te ! Wc whali iwj^m uitU Thomns 0rown«?
und Jnbii fiilibfiiv; one of them tiarrierl Mr.
Coute, ttii^atbct my \md di Warwick.
[^*A<jma# Browne was swoni,]
X. H* 3, WhitqiieslMmd& yuu smk Hii* tiit-
amt, Mr. Anara^y P
AHn Gcv THst he ^vmiltl tirqualitl your
lorctftliipft^ tvhrttier hfl curri^Hl Mr, llicl*a»xj
Cooti*, the pifraoti Ihat i%aii nlairi, ii|i<»ri the ^OtU
<ie aoih aflMelw^f^fiom ihe Qr^yhoimtl (ureru
ifi tli^ Htm^td, iiDd to i*hM [tla<s4? lie carrii^d
L B. S, Ym lump the (ni«stion; pray
«ficiik »o bud that mj lurds fiwy all lietr what
jmi my.
Broittt^ ^y Un4%t I ft n* liHw<*<«ti ihe houm
of nil c tinil IffoiTi the mtirninjf^ on Sisncliiy thi*
dDtli <if dGtAber imi, with niy fdlow attfl our
elinir, at tlic^ Duffler'n Head i;itf>ro at Ch&riti|f*
<!nMii, ftfkd I li^€ud ^i]r»« pe(»i¥ie &( Ijodeet'i^^ ^t
illli*€n?ylKiuiiii b th« 8(r&Bd^ raiting cnacli,
c&ftfhW in ihe slrffet^ n<>r ihut cmne tftihetii ;
%»li«n Ibey cotild not gef ^a(!hp», then they
csfttkd unt fi*r ehan:%; and we eoantig to the
door with our chair, there wttrv fb^w ortier
cbtirs therf , und six penile ra^n ttood lit lhf«
fassftge; am) i\mn tt ^ras ^id, there was nnl
chairs ennngh, and th^re waited on^ more,
and Ibey sti>od dif^cjours^irt^ ; and th« llr«t rrtau
€ntnv into w*y chahv who was capt. Co^sie ;
and my lord of Waru tek h^ got into another :
When the door of ih* ebahHastbui up, we
ttskt^d ii'hilher ^e i^boukl go; t»iit my Inrd
Bfobun came ajid bid ofien tho eh^tr nsfain ;
and ue dkl so, and Iir nHnrnetJ inio the hou^E",
and lh«»re was some diseotirse between Ihwfi
atandmg' at the bnr In the entry. Mr, Coote
cume out a^aln ^nd trume Inui my clmir, and
my lord Mohun and roy lord of Warwick went
into two others ; Mr. Conle bid nie carry him
into ) «eice«iter Bclds, and to make all tUe^bafPtf*
1 could 5 my lord of Warwick and my hird
Mohnn being- in the next rhalfs, asked hm^
Whither arc you a-j^iing, and railed ont twice,
and he said, l^o L«>ii'L'Sier fields ; i»roy do tiot,
aays my lord of Warwick, hnt come along
With us, aiHl let it nbne liH In-nmntjw ; hut he
W UK go tin j and as we were lurnia^ up fc«L
Martin's Lane, by the (Vt>it« Reyu tari?rii» my
lord Mohiin, and'nty lord Warwiek called out
'tis Us to stop, and Ibeir cbasr* cane up lo tht;
back door ot' the Cross Keys tavf en, atid ibei-e
u\\ tho three chairs were set nn a- breast in St.
Martin'!» l&n^ aod wbiTe ibey were talking to*
Ijetber, thefe came by three cbavrs of tt»€ otber
»ideof the way ; anff^ir. Cocile bid us take rip
and make all ibe haste we con Id b«fyre them
into Leicf9ter tleMs, §& lakinf vp I be cbafr
n|f«iD, Mr. Cante bid « nafca ii<rtt, Aai if »a
isoutii fo nil fksur, be vivsn*. 4aiMi liA^lt
mmM nm bi^ sward in #|»« «< «r l«iM^
Tbtn^ were two chaJra ite^mfm wm^mni »f M
.Mubimi and my turd Warwick Iblkfwad la (••
cbajnt after nie ; artd when we eaa^e la ibt
i^finHE-r i*f Loic^ea1«r M^^ at Grven laraai tadb
all the ibrt*!.' cbnira nerc set down a^bniMl
ag^ain, and Mr. Cotite put bia band tn bi« ^ackii,
and took out half a {fttifiMi la fiay, »ad aaid H
Iiim] no rilret ; aikI my lanl of W'oywiek
to my lorrt Mabun, wfott lo«le oitt thtm
liiig'<« oMt oiUiw nfH*ket^ who Kaid, th^n mMM
my lord Warwiek, raft. Ciwut!, and bliiwi^;
and tUieii tbey wcr« tpme onl, t leak li'y fcai
and iHy pip. anil ilEid tm pipe, at^ laol tk
lanlhorn and lifftiteil il« ana by ibai %imm I |al
lighted lay !>^pe, I luir^rd a calbiig mit, Ckiir,
cba4ri a^^ifi, iaw«fik th* npfH;r t^wJ «l ibt
anuanji ; m J look my chair* and tli«>f« wu m#
of the chaiiii that wasi net ^^.taet andiawv
eame up to the tiptx r en%\ of i}it? IMJa, and ik^
called to un to hnng lire nbait% Ofvr the fiJk^
we told ihrai «i^e did not keow baw la daHi^
1^ wi' ftboidd not b« i^e w gri I
«ga*n ; at laul we did ^ met Uia
lUiidt up ainaa la tlie place where we
nofsi% Itir w« could ^^ce n'dbi&if, it being'
dark nig^bl^ atkd when we cante up
thi-m, by our Unthom tfiisra' were tw* g^iffi^
iD^ii ho(dii»^ \xf Afr.> t'«M>te under ibrie um^
and crjiag out, My d«ar Coaie^ M j di«
Oantef ^ '- ^
Ati. Gm. Pray, who were those two p^
tlemen ?' -
Bt^nt* I did oat know ihetn, one wat il
refl eloaibi, and the r4ber had ;>tild laec, iii
they woo hi hare hnd me bare taken Mr. Owft
into my rhnir; but seeLni^ him bloody, aad Ml
able to help himself 1 ^aid i would not ppdl
itiy chair, and so ivouhl not tneddte with hiia;
but Ibey Baid tkj^ would initke tn^ a«y ittfii-
rBctioD for my chair, 3n<l de^^treit me ri» laife
him in \ bnt he ^&vg himself a »|M-tikf from
I hem, and we found be sum too heavy h^ ai ii
Ui\ aver the rails, and all ne conid «1o cmild n<rt
make him Mt in t be ebnir, but the chair v»tt
broken with cndeaToaring' lo plaoe hini tben^j
and tboy saiiL it i«e woidd carry him to aail^
g^n^n, they woidd ^\t lis 10t>A «ei?ufiiy
we findlni^ it impos»il»le, the waioh was
for, but n«boiJy woidd cofne aear^ ibe Ibey said
it WHS Aut of their wnrd, and f.o tboy would asi
coniff atiigb toe; iind J ^taid abnut half att ba«r
with my chftjr hn»kf'n, aed atterwaiils 1 uas
laid bohl upon, both I and my partner, and we
were ke(it tilt next ni^bt eleren ii-eK»ck ; aatf
that is all the trnti^fucuon that 1 bare bad f«r
my ehak ajid erery Ibitig.
AU.Qen- Pray, my lonl, I de&h^ be may
rectdlfct himi:clf; tur we do apprehend It ii
eery material, who ii fva^ that desired lo take
Mr^ C-onte into the chair ?
Rr€iA7tf. I cannot tell wtio they were, it was
so ^€'ty iMrk I coidd only see their eloatb*.
Att\ Gen, Did you ace the earl of Warwick
Ji» the Murder ^Richard Coote^ esq*
A. D* 16S9.
[970
Brovni. No, 8ir, he wa» not there ; one of
tbetAt 1 ^1^ yo^ ^^ officers do^tti^ on, red
Eocd wilfi liiue, ant) ihe otber had ^old lace ou ;
lllQfe wa» iiobo4iy there lb%t hM biiu up but
lli«m two.
M. i}f Norm. He ««yi be saw two pei-aons
M|»hitng- up Mr, Cootc ; il would be very well
^bliavt! thai mjiiter rery well seClIed» who those
^wo peisous vrere ; 1 ciesire to kuow how be is
sure my lord of Warwiak was doI one uf ibeiii
wo?
I Mroxne. I know my lord of Warwick »ery*
^1, Hiid I am sure he was neither of the ttvo,
li. <if Lctds. I uould know wbat li|^ht lie
* ill discern it so \«eU by, that lie can be »ure
r hard of' Warwick was not tttere ; tor heiaysi
I very dnrk ui^lili and v«*t be desoribei
ticutur |;>ersoos that beltf j^Ir. Coote up,
vne. Yes, my lord, I am sure luy lord
fick was none of Ibem.
td*. How conid you dislingniab in
jfbt, tbe colour?; of iieople's cloal!>i ?
I U lib the caudle tbat 1 had tigbted
< He could not kuow any of the
he held a lanthoro to their
i, wr knew them ?ery well bcfiire.
", S. My lord Warwick^ will your lord-
I this witness any questions ?
* War. My lord, I desire he may he
(^Whether 1 did not hid bim stnp at St,
y«*ldue end, and do all tbat I could to
Mr« Cootc from ^oing any further, but
ihoineP
The earl of Warwick, and my
ohun, as they turned up tbe laue, asked
Liier he was jjoing ? And wheu
it) ter^ftelds, they desired bim to
uiie \n\ To-morrow ; and iny lord Mohun
should go borne with hiin ; but tbe
Ind us g'o uUt and said he woubl not go to
"!» I*t>^» ^^ ^bat ibey would make an end
h<i{ infykt <; still tbey cailed to him agaio,
< us jqpeaK a word with you ;
I •!» ! IS rame to the back-door of tbe
-key« tavern, there ibey stood all of a
it^ and they both of tbe m spoke to bim,
hI Moot) a pretty while there, and in the
peou lime three cbairs passed hy ou the other
'dt $ he commanded us to take up, and carry
I away to Lejcesttn- fields immediately, and
ke the other chairs, or be would run one
I into tt>e body,
L, IL S. Would your lordship ask him any
! que«ttons?
B. of War, No, my lord.
Ati, Gen* My lord, [ observe, be says they
* isned sonif i»iue together while tbey
tipped ill s 's-Jane; I desire that be
Day he ask< itier he can tell what tbat
l^ourse was P
hnmme. I could not well bear, they whig*
pcred together, but I could hear my lord Mo-
Iian, and my lord of Warwick, de»i«? ciipl.
Coote to go uotne, atid let the business aloue
liil another tune.
Alt. Qtn* 1 dtviMf he may ejtplaiti lutnself^
wbat tbat business was tbat ibey would bare
put 00 till to morrow.
Br»wne. I know not what it was ; I beard
of no angtsr betwixt them, tttit t)key were as
good fricodSi ibr any ' <^ rrow to the con*
trary, as tfer tbey Itftr life&, ur at
efcr I see any men.
L. Jeffcrys. He says there w«re two we
into chiurs at tbe iliKir of tbe bousf , and tfler«]
wards went out a^^oin, and w etit iuio ibe bou
aud there %v&!» discourse at tbe bar ol tbe bou
I would desire to kuow what that was?
Btottitc. I did not bear tlie discourse th
wasi in tbe hottfe, 1 was at tbe door oft
bouse.
Ali* Gen. thir next witness is Willi]
Cripijes. [Who was sworn.]
L. H. $. Wbat do you ask tfais man, 1
Attorney ?
Att. Gen, Pinay^ will you give my
bene an account who you carried to LttUicatpwJ
fields tbe 29tb or 30th of October, and wk
happened in your knowledge at that tiute f
Crippei. Captain Coote was tbe first miA
tbat went iuto tlie chair w ben we came to tlie
Oreviionud tavern ; afterwards he came oui^
ag^in, and when we took htm up tht aecon
time, be was the first man that set out ; aud 1
bid us carry him to Letoesler-fields ; and wheu
we came lo the comer of St. Maritn's-Iane, wa
turned up tbat way ; and my lord<>f Warwick,
and my lord Mohuii, calknl to iis, being ift
chairs behind, to know whither we were goin^^
and de$«ired to speak with capiaiu Coote i and
he said be was goitig lo Leicester-tieMs; ant
when they asked, wbat to do P He slid, la
end the business ; tbey deslre^l bim to put it off
llll to-morrow ; anil while tbey uere discours-
ing about it in HU Martm's-hue, there passed
by other three chairs, which, when captain
Coote saw, he bid us take up aud overtake
Ibem, and go faster, or he would run one of ua
into the bod)' : so we weut on, aud at the Jow«r
end of Leicester- fields we set bim down ; and
the other two gentlemen » my lord IVarwicft
and aiy lord Mobuu, were there set down, and
went lovingly together^ for any thing that I
^w , up the pavement of the square, towards
tbe upper end ^ and in a little time we heard a
noise uf calling for chairs towards tbe uoper
end, and when we came there with the cnair»
we were bid to b(l over the chair within the
rails ; and when we said it wa» haitl to be donf,
thev tnistsled upon it, and we did come in ;
and when uc came there we saw two gentle-
men holding up captain Coote, aud would huve
had us taken bim into the chair ; w^ »aw ittere
was a great deal nf blood, but I never beard
bow it oime, and they would have had ns car-
ried him to a French surgeon *», and proffered
any money.
Att. Gen. My lord, 1 desire to know, who
they were that derived him to be carried to the
surgeon ?
JL U, S, Yoa hear tbe question, what say
you?
Crimes. IcaaiiotleU,aijlard$ one of them
4
971] 11 WILLIAM IIL
had something of lace upon him, hut it was so
dark that 1 coo Id hardly see my hand, and
therefore I cannot tell who they were ; and
when there was an objection made, that the
chain would be spoiled, they said, we need not
qnestion our chair, they would give as 100/.
seeanty to answer any damages, if we would
bat carry him ; so we endeavoured to put him
into the chair, but could not; and sox^e called
eot to the watch, to have liaid some help ; but
they said it w&4 none of their ward, and so they
would not come to us ; so the gentlpmen went
away, and we left them, and went and called a
surffeon, who, when he came, said, he was a
dead man, and we were secured till the next
day.
Att. Gen, Pray, my lord, I desire he may
be asked. Were tkere not other chairs in that
plsce at thai time ?
Grippes. There was one in the Field besides,
and no more that I could see ; tliey all went
away but us two.
Ati. Gen, What distance of lime was there
befewaen their setting down in Leicester- fields,
and their calling the chairs again?
Crippet, Not a quarter of an hour.
Jitt, Gtn. What became of the three chairs
that pMsed by you in St Martin's-lane ?
Crmet. Tney got before us ; but what be-
came or them afterwards 1 cannot tell.
Att, Gen, Did they come from the same
placci the tavern in the Strand that you were
atf
Crippet, Yes, 1 believe they did, my lord ;
for capt. Coote bid us follow them, and thrcat-
«ned us if we did not make greater haste.
Att, Gen, Do you know my lord of War-
wick?
Grippes, Yes, he had whitish cloaths on ;
and none but he had such clothes on as those
were.
L. H. S, Will your lordship ask this witness
any questions?
E. of Waripick, My lord, I desire he may
be asked, Whether 1 did not bid him stop ? and,
whether 1 did not say, thoy should not go tu
quarrel that night ?
Grippes, Yes ; both he and my',lord Moiiun
would not ha\e had captain Coote gone any
where, but home to his lo<lgings.
Att. Gen. My lord, 1 desii-e to know of him,
directly and downright, Whether my lord of
Warwick was nut olic of them that held him
when he was within the rails in the fiehls ?
Grippes, No, be was not ; he was neither
of them ; fur the one of them was too hig for
him, and the other was too little for my lord
Mohiin
Att. Gen. Now we call the chairman that
carried the earl oi' >Vurwick into I^iccster-
fields, James Crattle. (He was sworn.)
Att. Gtn. Will ^ou tell my lords wltut yon
know of any poison that }0U carried the 29ih
or 30th of October list, tVom the Greyhound
tavern in the feitrand, and who it was, and whi-
tlier you carried him ?
Cratlie, I was going along Charing- cross,
Trial fffiht Earl of Warmck^
[97f
between one and two in tlie moroiiifpy the SOth
of October last, and 1 heard a chair called far
at Locket's at the l>og tavern ; and thither I
and my partner went, and we took up thef»>
tieman, and carried him to Leicester-fieys.
Att, Gen. Who was that sentleman?
Grattle. It was my lord of Warwick.
Att. Gen, What time of night do yon My
it was?
Grattle, It was about one or two io tk
morning.
Att, Gen, What day of the week was it?
Grattle. It was Saturday night and Seadif
morning.
Att. Gen, Whither did you carry himf
Grattle, Into Oreen-street» towaidb^theltiv
end of Leicester-square.
Att, Gen. What chairt were Ibm w»
there?
Grattle, There wa» one that oflMi Ol*
was in, and another that my lord aUbm Hi
in, and we went away all together.
Ait, Gen. Were there no other chaiitf
Grattle, I did not know who went ia lb
other chairs, but there were three other cUn
that passed by us at St. Hartin'a-laae, aad w
followed after them to Leicester- fidds.
Att. Gen, Pray what became of ywiAff
you had set down your fare ?
Grattle. Weweredischayj^edandpaUilbi
otiier three went up towards my lent of lid-
cester's ; but we were coning away, and iaa
Uttle time we heard the noise of callug chain!
chairs! again, and there were two OMirstf
come up, Thomas Browne's and our*s; bt
lord of Warwick called our chair, and we Imb
him into it, and he bitl us carry him to the
Bagnio in Long-acre; and when we am
there we kuockol at the door, and his kui
was bloody, and he asked us if wehadasj
handkerchief to bind up his hand.
Att, Gen. Was there any other chairs atthe
door of the Bagnio, at the same time when yoi
came there ?
Crattle, Yes, there was anotlier chair tbm
at the door at the same time, and we set dovi
both together.
Att. Gen. Pray whence came that chair?
Grattit. Inde^, I do not know.
Att, Gen, Who were the chairmen tliat car-
ried that chair ?
Crattle. Indeed, my lord Mohunandnr
lord Warwick were the only persons that 1
knew of all the company.
Att, Gen, Whatsortof gentleman was ibt
other, that went out of the other chair into tlie
house.
Crattle. lie was a pretty tall man ; whci
he was in we went away ; I only can say, 1
saw my lord of Warwick go into the liouae.
Att, Gen. Did >ou take any notice of sif
sword that my lord of Warwick had inh^
hand at that time ?
Grattle. No; I cannot say I did take say
notice of any sword, only that there was •
handkerchief desired.
Att. Gen. Pray, did you hear no omm 4.
for tfie Murder ofRkhard Coote^ esq.
Al in the fidd, til] yan beard chairs called for
VrmttU, No; I camiot say 1 beard any
mv^ iti itie field.
Ate. Oen, Did you apprf-hend there v^s any
^KrattU. No, t kneMr nolhtng' at all of it ;
^m upon the calling' of chairs again^ aod my
tenl Warwick coining along, we look him in,
mm! lie bid lis ^ to the Bagnio, and tliithf r wa
Iff. Gtn, My lord, we have done with this
H, S. My lord Warwick, will you ask
^witness uny questions ?
] of Warukk. No, my lord.
tit. Gen, Then^ my lord, our next iritness
ohn Gib^n ^ be was anotber of those chair-
I that earned my krd of Warwick to the
tiio alien* ards* Pray, will you give ray
b an account what you know ; who you
^' 1 the 39th and OOtli of October last, and
ryon carried them ? (Who was sworo.)
. My lord, 1 was at Charing-CroflS
_ _ partner the 39tb of October last, at
, and about one or two o'clock in the nioro-
ilig chairs were called for tw the Grey-hotrnd-
lin the Strand ; and when we came there,
1 of Warwick, my lord Mohnn, and Mr.
! got into the tliree first chairs, and i?e got
rlord Warwick into our oliair, and when we
him there, we were bid to go to^vards
r- fields, as I apprehended, for tbither
prs that went first wass to go ; atid in-
' lord Mohun and my lord Warwick did
op at the end of St /Martin 's^lane, and
Mr. Coote whither he was goin^f ? and
ad| he waa going lo make an end of the
and they said it should not be to-
but presently after three other chairs
Dg along, and passing before us^ the chair
t captain Coote was in was bid lo go on, and
i ordered to foBour, which was done ac*
cordingly ; just at the turning of Green-stn^'t
we set down our three chairs ; and, I think, just
about the turning of Green -street end we staid
there came another chair again; and ne
I the other chair, upaa my lord Warwick's
; into us, went away from thence, and
him to the Hagnio in Long Acre.
iti, Gen^ You talk of another chair ; pray,
^efaair was that r '
itfttm. There was another chair that was
t tbere juit before us ; but indeed I do not
whose it was, nor indeed can I say who
vas that was in it ; but this 1 am sure, we
went to tiie same place ; and ewe met and lit
jaitattbe same time ; and my lord of Warwick
adteil for a handkerchief to bind up his hand,
%bicli was bloody ; which was given him.
Ait, Gen. Did von not know who was in
Ibeotbtrr chair at that time ?
Cihiofi, No, indeed, 1 did not know, 1 will
oamae you.
Att, Gen. Pray did yoii not know whei-e
that otbtr chair took the other geollenian up ?
Gibton, X0| iudeedi sir, I did not.
A. D, 1699. [ST^?
Pray» what time of the trigbc .
Alt, Gen,
was it ?
Gihton* It wna between m^ and two in the
morning, J^
Jtt. Gen, You talk of ws Tiaud being hurt,
and that he called for a handkerchief: Did yoii
see his hand bleed ; and pray, in what nature^
was Ills wound ?
Giiiwn, My lord« all I can say is, there wa&
blood, and he wanted a handkerchief, and had
one, for he said hm hand was hurt; but in
truth 1 did not take any notice what that hurt
was, I did not see it; if my partner took notice
of it, so; but else 1 can say nothing to it ; but
the haiulkerchief was afterwards asked agaio^
and could not be had.
L, JL S. Would my lord of Warwick asic
this witness any questions ?
Earl ef XVarn^idi, No, my lord.
Alt. Gen. Then, my lord, our next witnesses
are Robert Applcgate and Peter Catro, who will
give your lordship an account who they carried
at thTs time.
L, H. S, Whom do you call first T
Ait, Gen. liobert Applegate. (Who was
swomj
£. H. S. What (juestions do you ask bim,
Mr, Attorney P
Alt, G €11, I desire that he would acquaint ,
your lordship, what he knows of what paased
at the Grey hound- tavern in the Strand ^ tbftJ
<29th of October bst, wliom he carried, and
whither he carried them ?
Ap^icgaU, My lord, about one or two in the
morningt a Hunday, the %9\h or 30th of Octo-
ber last, 1 was going home with my partner
and my chair, and 1 heard iheui calling at tha ,
GrtfyhoHndta¥emin the 8trand, Mr. Locket^s,
for coaches and chairs ; there was no coach to
be bad that could be heard of; btit coming up- \
to the door, they said they wanted six chairs |
and when we were there at the door, there eame .
eut first ray lord Warwick^ capt Coote, and ray
lord Mohun ; capt. Cootegot into the tii-st chair, ,
and what directions he gave them I caimot tell ;
my lord of Warwick got into the next ; and int(» ^
ours, which was the third, my lord Mohuji
came in, and bid us take him up and carry bim
towards Westminster, and he ordere*! us to fol-
low tbe choirs before : just as they turned at
St, Martin's -lane, my lord Mohun called out ^
and desired to stop, and at the Cross Keys j
tavern back-door all the three chairs came up
tt^eiher ; and then my lord of Warwick ana
capt. Coote and my lord Mohun talked toge-
tlier ; nnd f could hear my lord Mobun and]
my lord of Warwick desire'capt, Coote to de- ^
fer it, and put it by till another day ; what it
was, indeed 1 connoi tell : but while they were ^
talking' there, three chairs more came up on. J
the other side of the way ; and capt> Coote i
would needs go forward, and my lord Mohun ^
and my lord of Warwick went with him ; and i
so they were all set down at the lower end of J
i^icester-fkelds, at Green-sti'eet end. BHt 1
truth I did not see wliere the other three «;liain
set down those thrv carried.
975]
11 WILLIAM IIL
Trial nfthe Earl of Wartokk^
[976
Att, Gen, What Uien happened afterwardd,
can yoa tell ?
Apptegate. I cannot tell whether I had
lightiMi my pi|fe, or jiiKt ii^litiui^ it, when I
beard chairs called a^ain ; upon wWwh wo riio
up with our chair towania the upp.T r»d ot'tlie
fielda, and there I did si^' oiy lord oi Warwick
within the rails, who bid us out over our chair
into the fielila ; but we told him, if we did, we
could not ^t it over aifain ; and so we went
with our chttir tci the corner of the fields ; and
when we caiue there, there came out captain
French, who bid us open our chair, and let him
in, for he diil believe he was a dead man ; and
upon tliat we did take him in, and he bid us carry
him with all the speed we could to the Baifniu
in Loiigf-Acre, and my lord of Warwick got
into^another chair behind ; so we went to Ijong-
Acre ; and when we came to the door of the
Baffnio, and captain Fi-ench came out of tlie
ohair, be was so weak that he fell down
upon hia knees ; and when he came out, I
asked who should pay me, and desired to be
discharged ; and the earl of Warwick said,
Damn ye, call for your money to-morrow ; so
they botli went in at the Uagnio door tos^cther.
Ait. Gen, Pray, who oilled for the cliair
first, captain French, or my lord of Warwick,
m the fields?
Applegale. I cannot tell ; but when I bronjf»'ht
up my coair, I first saw my lord of Warwick,
and he would have had melifled the cliair over
the rails, and I told him we could not ^*t it
over aj^ain, and so went up to the upper end of
the fields.
Alt. Ocn. If'vou first spoke with inv lanl of
Wanvick, why did you imt carry my lord v\
Warwick i'
AjipUufitc. Indocd I c:iiiii(»t Ji-ll ; lust I sup-
pose it was because he did not ruiiti' hO soon
out of tlie Held;) as captain rrciich. or did im:
eoino till' same way.
Alt. (Jen. I*ray, iU* yoii reineuibrr any tbiiit,'
thui happent'ljubt at their caiTyini>;capt.FrrMcli
away ;'
Ajiplc^atf. Before ho went iriUi the chair, lie
stopped, and woiihl have pulled oll'his iMoutlis,
but we would not let hiiu.
All. Urn. Did yo;i see any swonl capt.
French had i*
Applt'gate. I did see no sword that 1 cai» say
directly was a sword ; hut capt. Fieneli h.i'd
somethin<>; in his hand, but nhat it was 1 can-
not ttll.
At I. Cffn. What was il that he said to you.
when he tirst uent into the chair ?
AppUar.tc. He d»»sired to be carried to the
Ha<rnio : tor lie said he b<.'lieved he was a dead
man.
Att. Gfn. Fray frieinl, recollect yourself, if
you hoard hitu suy any thin;; at all when he
first went into the chair at the (rreyhoumi
tavern i'
Appltnutc. \ did not hear him mention aiiv
thim; at all.
Att. Ge/i. Pray what did you hear my lord
•»t' Waiwick wvut thattimeV
AppUgate, Truly, I cannot lay I beard hia
mention any thing at all neither ; but I did
hear niy lord Molmn sav, when be could aot
prevail, in St. Martin's- lane, with caplaia
Coote to go home, that if they did go he would
i^o and see it.
Att, Gin. if they did go ; ' who did he neu
by they ?
Appiegate. My lord Warwick and captiii
Coote that were in the other chairs ; there vn
nobody else to speak to.
Att. Gen. Was there any talk of fighting or
quarrclhng P
Applegale. No, indeed, I do not koowof aoy
difference there was between tiiew.
X. H. S. My lord Warwick, viili your kwrf-
ship ask this witness any questions ?
Earl of Waraick. Mv lord, I desire be on;
be asked, Whether I did not eudeaveor to p«
off the going into lieicester-fielda, and to hue
all things k*t alone till to-morrow.
Appiegate. My lord, I cannot say any thi^
of that ; but I md hear my lord Mohm h|
heartily of captain Coote to go home, 9ai U
the businesa alone till another time ; and iaM
1 thiuk, I never heard a man h^ more k»
tily for an alma at a door, than he dkl, that Ik^
might not go into the ftelds then ; but I eif-
not Sky that I heard any thing that my loAld
Warwick said about it.
L. H. S. Will your lordship ask him Hf
otiier qtipstions?
I'larl of JVanvivk. Xo, my lord.
L. U. S, Did my lor«l of V^'arwick cxproi
any inclination to 1^0 on '.'
Ajtplt'.atc. liKleed I know noi any th'.'ij:«»
way or other.
L.Jilfrei/>. I\ly lord^', if I am not iiii-s-akfi;
he did say, that he did not see any thinj: ol' lu-
cliiwUion in my lord of W arwirk to «;o on : l-at
1 desire, if \our lordhliip.i |dens4>. that he mav
he a>ked this question, Whether he did s«
any thin;r in my Iwd of \\ arwick that shcwiil
any ineiinalion to the etmtiary ?
Appii'fsatc. All that 1 can" say is, 1 bfiH
my lord 3Iohun say. Fray let's* jjo home 3b»!
lie all toj;r^.tlM.T. antj let us putofi* this bu»inr\«
to another time : hut indeed I do not reineuiMn
that ni\ lord of W ,11 w ick .saul one wunl i-t
j^oiiiijf any wn\ backward or forward.
Alt. Gen. Pray, who did my lord ^IoLp:.
^peak these wordb to ?
Ajple^nfc. >ly bird Mohun spoke 10 ni\
lonl of V\ (*rwick and captain Cooie, both.
/.. U.S. 3Jr. Atlornty, who is your litv
nuness ?
A tt. G en . Peter Catro. [ \V ho w as sworn ;
/.. 7/. .V. What do you ask him. Sir?
An. GiiK lie was tiie other chair-man tliaf
c.irricd my lonl Mohun ; Prayv will you girc
my lords an account what you know paMCii r>t
theiiinc ulirnyou carried 'my lord Mobuu 15
LeicesiiT-lioids?
Cuir?. 1 and my fellow carried my lui'i
i^Iohuii froni the Greyhound-tarc'ru in ibr
Strand, till we came to 'the turnin;^ up of St.
Maitin's-Iane, where my lord Mohun di«it>i
fTT]
Jar the Murder ofRiehard Cooie, esq.
A. D. 1699.
[97S
thmt our three chiira might stop, and that they
miffht go down to Westminster, and that my
lora Warwick and rapt. Coote would go thither,
and be would wait upon them to their lodging ;
apt. Coote made answer again something, but
what I cannot tell, and his chair went en ; and
my lord Mohun did say, if they went forward,
he would ibilow them, and see what would
come of it.
Ati.'Gtn. What did you see happen while
yoa were in St. Martin*s-lane ?
Cairo. There were other three chairs that
went bv while we stood at the Cross- Keys
teTcm-door, and captain Coote's chair going
lisrward, we followed and went to the end of
lieicester- fields, at Green-street end ; and there
all three went out of their chairs and walked
op the paved stones of the square ; my lord of
Warwick asked my lord Mohun if he nad any
sEWer, and three shillings were given for the
three chairs, and they went from us, and bid
«■ go about oar business ; and in a little while
aHer we heard a noise from the upper end of
the fields, calling chairs, again.
Att, Gen, Did you observe any thing of
qparrel or difference between them, or any
mshiDg of swords?
* Cairo. Indeed I heard nothing of any quar-
rel^ for we were at the lower end of the square,
St Green -street end ; and when we heard them
call for chairs again, we went up towards the
npper end of the fields ; and When, we came
there, we beard one bid us bring up the chair
«ver the rails.
Mi'. Gfn. Who was that P
'^Gstro. Indeed, my lord, I cannot tell, for I
waa behind the chair, and could not see who it
was ; but we saying that we could not get it
4fiTer ■gain if we did, we went up to the upper
end of the fields, and there was capt. French,
I tbink it was, for I did not perfectly see him,
being at the hind- part of tlie chair ; and we
went on to the bagnio in Long- Acre ; and I did
nee my lord Warwick come out of his chair
■t the bagnb door, for there they were set
Att. Gen, Yon say yon saw my lord of
Warwick at the bagnio dour ; did you see any
aword las my lord of Warwick had, or capt.
French?
Cairo. No, 1 did not see any sword at all of
cither of them.
Att. Gen. What do you know of capt.
French his declaring he was wounded ?
Cairo. I think it was either when he went
into the chair, or in Newport-street end, he
called out to have the chair opened ; for, says
he, I think 1 am a dead man, and would hare
pnlled off his cloaths ; and when we were at
the bagnio door, we tarried a pretty while till
tbey. got them up to let them m ; and asking
if we should wait, my lord of Warwick bid us
CNNoe to that house to-mnrmw morning lor oiir
money ; and they went in together into the
house, but I never heard any one word oi'
quarrel or dissatiidaction passed between them.
Ati. Gem. Th» witness speaks to the same
VOL. XIII.
purpose as the other did ; and I think we need
not trouble your lordship any further as to that.
I. H, S. Would my lord of Warwick ask
him any questions ?
Earl of Warwick. No, my lord.
Att, Gen. Then our next witness is one
John Palmer. (Who was sworn.)
Att, Gen. Pray, will you give my lords an
account, who it was you did carry in your chair
the 29th or 30tli of October last, and whiihir
you carried him ?
Palmer. About one o^clock in the morning,
the 30tb of October, we were called to the
Greyhound Tavern in the Strand, to Mr.
Locaet's, and there we took up a gentleman,
one captain French.
Ait. Gen. Whither did you carry him ?
Palmer. He bid us go to Tieicostcr- fields.
Att. Gen. What did he particularly say to
you ?
Palmer, There were three other chairs thit
were just gone before from the same door, and
he bid us get before all those chairs ; and just as
we come to St. Martin's- lane end, we saw there
were three other chairs set down before us over
against the Cross Keys tavern back tliior.
Att. Gen. Well, what did you do then ?
Palmer. So we went before, according as we
were bid, unto Leicester- fields, and at the
upper end of the ficMs, by 1 Leicester-house, we
opened the door, and captain French came out,
and he gave us a shilling, and we went away
about our business.
Att. Gen. Were there any more chairs there
that went with you ?
Palmer. There were two more chairs that
set down two other gentlemen by Leicester-
house, and we came away when we were paid ;
that is all I know.
Att. Gen. Did you see any other chairs he-
sides your three wnen you came down a<j^uin,
or any other gentlemen ?
Palmer. We did see some gentlemen walk-
ing up about the middle of the square when we
came down, but we made what has'ic we could
away home, it being late on Sunday morning.
Att. Gen. Did you observe any fighting
when you were in the field ?
Palmer. I did not hear or discern any fight-
ing while I was there.
Att. Gen. Did you hearof any quarrel, or
any thing between any of them, and whom,
before P
Palmer. No, I did not know of any quarrel,
or hear of any thing at all, I do assure you.
Alt. Gen. All that he says then, my lord,
is, That he carried capt. French to the upper
end of Leicester- fields, and there he Icfl hmi.
L. H. S. Would my lord Warwick ask this
witness any questions Y
E. of War, I desire he may be asked, whe-
ther he knows who were in the chairs that
were in St. Martin's- lane, when they passed
byi*
You hear the question, What say
L. H. S.
ou to it ?
Palmer.
3R
There were three chairs, but who
11
in.
een ^ou ttU f
ApphguU^ I caiiiiot letl whether f liiid
lighted n\y pqi^^ or juf^t li^liiin^ itj when I
beinJ chairs c^kd fl^flSln ; upon ivhtcb ^¥f riin
up with our elixir tovranU the tipfKJ- c^ttd 4kf' the
JfielcNi aiMl Iherii 1 ditl si*r my brd ui VVarvvkk
.within the rails^ whd bid us put ovf^ out- chair
lAto tHr Ht'hte ; but we laid hitQ, if we did, we
iMtulfi not ^rt it over a^^ain ; aad 911 «¥€ went
With OMr ^.'hijir U* ihc roriur of tl(e fields; arvd
BMM.Ml-«i#taia
dwr.MtWhim
im4kmkmMm% and
rittMttM dMUmiM iB,«lld ht lU OUirry
withallthtMaedwe «MlNI*t»tli# BHrnia
MiMfHimb ywf jgy^-lw*- rf Wwirfcfc; g^t
■■t; and wiiMPHnRie tn tfie^t>Qrr of the
Bagnio, and captain Fi^ncb came t>ut of the
I c^niri he «ra« m w«wk Ihst be fdE dtimi
ai|ioa his Icnees ; &iid wben he cflme out, I
Ajik(^ who should jmy rae, iintt deftin^d lo lie
discharged ; and Ibe ^mx\ of W^arwick siid^
Da«iA ye, <?aU fiir^o^ur inmtf^r lo- morrow ; s*j
' l\i^y both went in at the Bat^nio door tDj^eibcr
Mt^ Gen. Pray, who called f*>F ^\& cliair
fif^t, captain French, or my lord of Warwick,
lnttieliddsP
Apptiigate. 1 eannot tell j but when I hrn^i^ht
11(1 my chaiTi I tirst saw ray lord of Warwick,
^ntJikl'Outd ha ¥0 had me lifted ihe chair orer
HiMll^jftnd I told hirQ we cuuiii nui get it
•vcr Miir, ukA w wwUvp to tb« vppcr end of
^11. Gm. If yoa lint iptlfie with my kird of
¥thtrwkk, whj £d jnmi not eury my lord of
W«rwiekf
ApplegMie, In^ietilcauooiUllli; hvi I uaji-
poie It WM bgcavie he dIM not come so soon
o«t«f IheiMdi M captain Fraiob, or M Dot
cone the tame way.
Att.Qen, Pimy, <U yoorremenber any thttiif
Chat happened juft at their cartyiagrcapclPVencb
away? ^
ApplegaU. Before he went into the chair, he
■lopped,, and wouU hate pulled off hiadoaths,
hut we woold not let him.
Au. Gen. Did you aee any sword eapt.
Freneh had t
Afphgaip. I dkiaee no sword that I can sav
direetly was a sword ; but eapt French bail
aomothing ia his hanc^ hut what it waa 1 can-
not tell
Att.Oen, What was it that he
w4Mi he first went into the diair ^
to yon,
Afplegate. He dsaired to be earned to tbe
Bagnfo;
for he said he believed he was a deed
Att. 6m. Pray ftiend, reeolleet yoursrif, if
jtoa heard him say wr Mng at all when be
Irat went bto the cudr at the Orsyheoisd
tavemf
Appitg€t€. I did Dol hear him VMBtioD rdv
tUafatall.
• M. Gen. Ptay wImI dM twllMMrwIord
of Warwkk my M ^ —^ "^
Ceato»>fatnwii, tlisf if tCyaj^f
^o iUitJ see it.
by theyf , ^i* - ^-^, k-t
AppUgate. My Ifpfd W»rwT<!k mi
Coiite that were m the other ehainf t
tiobody rtsf to ^neak to.
Ait. Gen. Was iliere any talk of4|
quarrelling ?
Applegait, No» mdeed, I do uol kip
difference tb^re was l»etwf«n tbcnt.
L. H 6. My hird Wurwuk, will yi
sbif» a«k lb is wilnesis any qu««tii)i
Earl of U^amick, M\ iord, li
be aiJ^od, Whether 1 did not ^mk
ofi die goittf into Leicester^ Helda, aod
ail Ihmgt let atoae uJl tO'nii>rrow.
Appkga4e. My Iord» I caonut «t»v at
of that ; but I did heor my loni M^b
heailily of captain Coote to go honai%
tlie business ^boe till another time ; aiM
I think, I nerer heand a nian htg mor
tily for an alms M a door, tbafi bc^ did, ||
mifrht not ^0 into the SmH* tben -, lui
not say thot I htr&rd any thing- that m]
Warwick said about it. * .
X. H.S. Will your lordly p a^i
other f|tiMtioo«? T
Karl ijf Warm*(Je* NO| my lonU
L. M.S. Did my brd of Warwkit
auy Inelinatioa to go ou ?
JppiegaU. liidL'cdIkQawnet'aaytii
way or other.
t.Jrffreyi. Hy lords, if I wmw^m
be did aay, lliftt be did not see aoy tkriif
cU nation in my lord of Warwick lo gi» i
I desire f if ^our lordehips |>l«ase^ ibal
be rutked tliis question, WbeUier be
any tldo^ in my t«rd ol' Warwiek tiat
any i neh n ati 00 to the «n trary f
Appiegatf. All that 1 earn viy ii, .J
n^y lord Afolmti tav, Rtay Id^ go ha
Ito aH togi^her, »nd Irt ue pot off lUal
to ajiother time ; balimk^d I da net ra
that my lord of Warwick s^id one 1
going any way backward or forward.
Ati. Gem, Pray, who did my lord
gpeok these words to ?
AppUeate. My lord Maiiaii ipoha
lord of Warwick a&d captaia Gooia, bi
L, H. B. Mr. Attorney, who is ym
witness f r .
il/i.G^. Peter Cairo* [Wbawwi
L, H. S. What do ymi ask bhOpfiM
Ati. Geft, He vr*\^ \he oihi^r cinip4
carried my brd Mohiio ; Proyn-wMdl
my lortJs an accouat w lit jiiu Jb^im
the time whets you catrM iOf§m
Leioester^fialdif ■ /^^
Culri}. I atkd my feUmrir
Molmu fron^ the Qreyhoimd
Straiidt tiU we csma to the-^
Maftm's*kiie, wbeven^ Is
]
Jar the Murder of Richard Coote, esq.
A. D. 1699.
[97S
onr three chairs might stop, and that they
fat go down to Westminster, and that my
Warwick and rapt.Coote would go thither,
he would wait upon them to their lodging ;
L Coote made answer again something, but
It I cannot tell, and his chair went on ; and
lord Mohun did say, if they went forward,
would ibllow them, and see what would
letfiL
itt. Gen. ^Vhat did you see happen while
1 were in St. Martin's- lane ?
latro. There were other three chairs that
It bv while we stood at the Cross- Keys
en-door, and captain Coote's chair going
rard, we followed and went to the end of
eester-fields, at Green-street end ; and there
thr«e went out of their chairs and walked
the paved stones of the square ; my lord of
irwick asked my lord Mohun if he had any
er, and three shillings were given for tlie
ee chairs, and they went from us, and bid
go about our business ; and in a little while
er we heard a noise from the upper end of
! fields, calling chairs, again.
itL Gen. Did you observe any thing of
irrd or difference between them, or any
dung of swords?
']dtro. Indeed I heard nothing of any quar-
, for we were at the lower end of the square,
Sreen- street end ; and when we heard them
I far chairs again, we went up towards the
per end of the fields ; and when, we came
ft, we heard one bid us bring up the chair
ir Uie rails.
4it. Gen. Who was that P
^iro. Indeed, my lord, I cannot tell, for I
I behind the chair, and could not see who it
I ; but we saying that we could not get it
V again if we did, we went np to thp upper
I of the fields, and there was capt. French,
Mc it was, for I did not perfectly see him,
■g at the hind-[>art of tlie chair ; and we
N 00 to the bagnio in Long- Acre ; and I did
! ray lord Warwick come out of his chair
tebignrodoor, for there they were set
vn.
itt. Gen. You say yon saw my lord of
irwiek at the bagnio door ; did you see any
Nd las my lord of Warwick had, or capt.
racfa?
'ktro. No, I did not see any sword at all of
bcrofthem.
itt. Gen. What do you know of capt.
mck his declaring he was wounded ?
CWtro. I think it was either when he went
» the chair, or in New port- street end, he
kd out to have the chair opeiieil ; for, says
I I think I am a dead man, and would have
kd off his doalhs *, and when we were at
I kigmo door, we tarried a pretty while till
y got them up to let them in ; and askintf
nesboald wait, my lord of Warwick bid us
W to that house to- morrow mornins^ ibr ofir
Hy ; and they went in together into tlie
■•i but I never heard any une word of
ffral or disniisfaction passed bctw<>cti them.
lit. Gem. This witness speaks to the same
VOL. XIIl.
purpose as the other did ; and I think we need
not trouble your lordship an v further as to that.
L. H. S. Would my lord of Warwick ask
him any questions ?
Earl of Waruick. No, my lord.
Att, Gen. Then our next witness is one
John I'ahner. (Who was sworn.)
Att. Gen. Pray, will you give my lords an
account, who it wa.*; you did carry in your chair
the 29th or 30th of October last, and whither
you carried him ?
Palmer. About one o^clock in the morning,
the 30tb of October, we were called to the
Greyhound Tavern in the Strand, to Mr.
LocKet's, and there we took up a gentleman,
one captain French.
Att. Gen. Whither did you carry him ?
Palmer. He bid us go to lieJcostcr- fields.
Att. Gen. What did he particularly say to
you ?
Palmer. There were three other chairs thit
were just gone before from the same door, and
he bid us get before all those chairs ; and just as
we come to St. Martin's- lane end, wc saw there
were three other chairs set down before us over
against the Cross Keys tavern back diior.
^Att. Gen. Well, what did you do then ?
Palmer. So we went before, according as we
were bid, unto Leicestor-tiehls, and at the
upper end of the ficMs, hy licicoster-house, wc
opened the door, and captain French came out,
and he gave us a shilling, and we went away
about our business.
Att, Gen. Were there any more chairs there
that went with you ?
Palmer. There were two more chairs that
set down two other gentlemen by Leicester-
house, and we came away when we were paid ;
that is all I know.
Att. Gen. Did you see any other chairs f)C-
sides your three wlien you came down ajj^ain,
or any other tfentlcmen ?
Palmer. We did sec some gentlemen walk-
ing up about the middle of the square when we
came down, but we made what hnsie wc could
away home, it being late on Sunday morning.
Alt. Gen. Did yon observe any fighting
when you were in the field ?
Palmer. I did nut hear or disceni any fight-
ing while I was there.
Att. Gen. Did you hear of any quarrel, or
any thing between any of thcin, and whom,
beibre ?
Palmer. No, I did not know of any quarrel,
or hear of any thing at all, I do assure you.
Att. Gen. All that he says then, iny l<»rd,
is, That he carried capt. French to the upper
end of Leicester- fields, and there he WW hjni.
L. H. S. Would my lord War>* ick ask this
witness any questions Y
E. of ]Var. I desire he may be a!>ked, whe-
ther he knows who were in the chairs that
were in St. Martin*s-lane, ^^hen they passed
by?
L. II. S. You hear the question, What say
ou to it ?
Pahner. There were l!»re€ chairs^ hut w\.\^
3R
r
n WILLIAM ILL
they weicihat trere in ihena I caoiiot tell di
recily i but as tht y said^ Hfheo ihey set tbeen
iJowTJ nt Leke^l^r-fitlilt, ihey were my lord
Warwick^ my Uvd >Iobuii, Jind Mr, Cool^.
An. Gfn* Who wftn ii thti said «> ?
p0/mer. ^me oHh^ oiler cbairinen wUeii I
caftit^ l)y.
I, ^. S. Mr. Atioracy, who b your ncit
Jr^ ^fn. We ihnlt caII »ext the cUniriiic?!!
thfti cnnird Mr. Dockwni and Mr Jani^ :
Cttll Juckum the t^^rmiti. 0^^^^° was sworn.)
/ili. Gat. Thi» man t-arried capt, James :
Pray iic«j«avtjt my lotd*^ wbo yori did take up
atl £rt>ckelV iu tbe Srmnd oi\ tbt £9tU cm< 30ib
of October kiat, and wJiUberyou carried him P
Jackt&nA curried capt. Jamaatmrn hock^Vs
in the BCr&Eid inlo T^ie«^or- fields.
Ait. Gm, Uqw mmy cbain vrere you Ib&t
went ?
JueJum, There vr^re two mope that wcfil
irben I i^ctit j there were n% m ail that took
vj^ ^tfxitleyim tben% and we were the last but
oj*e.
Alt. Gen. Can you iell who were in tlie
Other thre« iir^t chiitf$ ?
Jackiffn, I dn ijot know who were in Ihc
other chairt) but t lieard my ton\ illobun at the
tlonr (vf the houie ilei^if^, thai the bustnees^
tuiirht be deferred till to morrow morning i
thefts w^re mx i^nilemeti al the door, bat truly
who tb^v all wtre I r^aunottelL
Aii^ Gtn, Who did my lord Mobun i^peak
Jackmn. Indeed I do not know who he spote
it to.
AH. Gen* Wh^t aoiwer was made to my
lord Mohun ?
Jacksim* Truly, there was no answer that
I heard, but w€ all went an ay aooD after that,
and we were bid to go to Leicester- tie^^ to fol-
low the other chairs ; aud wheo we came to
the other end of Leicest«?r- fields^, we set down
captain James by the Standard tavern, and he
^ve iLi a ahitlbi^T and bid ua ifo our ways ;
vo we weui our way, and I iicard notliing at-
terwards, but came away down tjie fields, and
there were three chairs that atood al I ho bottom
of the fields ; aud we aaked them, what iliey
■tayeil tli^t^ for P And they said, to fill a ^tipe
9t tobacco; A Oil presently after, we heard call
chairs again ; but it was IfUe, and it was Sunday
morning, and my partner said let us s^o away
home ; and we dia so, we went directly home.
Att. Gen, Did you carry nobody back ?
Jackson, No, we carried nobody back.
' Att. Gen, My lord, wc hare done with this
witness ; our next witness is one Richard Ed-
wards, and he was one of the chairmen that
carried 31 r. Dockwi*a. (He was sworn.)
_Att. Gen, Pray will you acquaint my lords,
Whether you carried any body from Locket*s
the 29th of October, and who it was, and whi-
ther you carried him ?
. Edwards. I do not kuow who I carried, but
they were calling coaches at the Greyhound
c^rerii ia the S(ra&d| aud no ooachM coimn^>
Triid qfthc Eod of H^arwmk^
IKO
thoy called for chaim, mad m our ejnitiw
brought u{».
An. Gen. When you cmta^ Uitrr, mh^M
you a«« there f
Edu^ards, Indeed 1 did pM knowmylwirf
War wick » nor my lord Mobttn, laar mf d
AtLGm. Well, what dciyoti kmm} \M
my lonU wh»l hajjpeued.
^Bdu^Arck. When we were thet«, lh«r» ««»
two iato two chairs ; mmd nj lord Mobm ai^
or another cr«iitl«n»iii, 1 Oiiui*! liQ ii1litfc,lte
th<> chn irs mhotild not fpo Qwmjr, th«t tlic]r «nU
kill any iit;iu that should go away ; aod ikt^
wt^iH out of the ch&ii^, »tid weut jjito m
house anatn.
Att* Gen, And wbvkt happ«ii«d allef 1%
went into th« hong« again ?
Edi^ard^* After tliey went out of the dm
into the bouse ag-ain, aa I waAlcdd, my lend if
Warwick, my lord MobnUf ai^l Mr, Carti,
wtjjt into tiiree chairs, and wvnt away itm
the door ; and then^ ivere three cltasri «f m
that wi'ut last.
Att, Gen, Whither did you go with jmr
chair f
Edxarttt. We went to the Biandaid tai«n
at tlie end of Leieesler^fidds, and wb«si w%
came to the iaT«m door, we aakisd htm if «•
slioutd knock at the door ; he said no ; ^la
fare ua a ahilling, and bid us go about im
huainfsif and *o we did, tor we wcel ilif?er awtf
to Charing -CroiB*
Ait, Gen, Pny can you tell wbo were m
the other chairs?
Edmards, Truly I cannot tell any man tbit
was in our three chains, for I was the bin^^
chair man^ and did n^t know any of them,
Ati, Gen, My lord, I desine ti> know wM
he means by hind-chairmati ^
Edwardt, My lord, oiirs was the Easl«iv
that went to Leicester-fields^ and I was bdbad
the chajr^ and nerer could see any of tbcflii Jt
being so very dark after they took the ttoi^
till we came to Charing 'Cross, al St. ^laniaV
lane; and then I could not see who llie par»
titular persona were tliat were iti the chair?;
nor indeed t whoae the chairs were that camri
them.
Ait^Gen, What hour was it T
Edwurds, U was rery late, between mt aarf
two in the morning ; ii was past oiie before ve.
were called out.
Att, Gen, You say yon went to the of^
end of Leicester- fields with two other cbaifs;
pray did you see any other chairs afterwaitk,
an<f where?
Edwards, We ^w three chairs al the kmtr
end of the square, as we cance down by Grcea-
8treet end, and we asked theui, what (hay
stayed there for ; and they said, to light a pipe
of tobacco.
Att. Gen. Pray, who had been carried ■
those chairs, can yoo tell ?
K<iwardi, 1 did not see then set down ssy
body, aud i cannot tell who they carried; vi
' RmofithatweoMiiii,I4Mlnili»
as tiBr the psrsofi (
S81]
^ the Murder ^Richard Coote, e$q.
A.D. 1699k
[JW
much «• see him to know bim, nor know who
he was ; bat we went away as soon as erer we
were paid.
Att, Gtn, 1 have one question more to ask
you ; you sky, that my lord of Warwick at
the ta?ern door bid you stay, and that none
should go away, and swore he would run any
man through that should go away ?
Edwards, ft was my Ion] Mohun ; and then
two that had gone into the chairs, went into the
house a{::ain.
Att, Gen. Did not you say that there was
some talk of going to Westminster ?
Edwards, My lord Mohun did talk of going
to Westminster, when they went into the chairs
the second time ; and I think I beanl Mr.
Coote say, he would make an eud of it then,
And he would kill any man that would not go
lorwards to Leicester -Oelds.
X. H. S. My lord Warwick, will you ask
this witness any more questions ?
Earl of Warwick, No, my lord.
L. H. & Mr. Attorney, ha?e you any more
«?idence to call?
Ati, Gen, My lord, the next piece of evi-
dence that we should apply ousel ves to, will be
to what hapnened at the dagnio in Louff-acre,
aftrrmy lord Warwick and capt. French came
there: and the witness that we shall call is
PkNufret, and he is a servant at the Bagnio in
Long-acre, and he will acquaint your kirdships
wIm^ name thither the 30th of October last, and
what happened there.
X. H. S. What is his name?
Att. Gen, Henry Pomfret.
X. H, S. Is he sworn ?
Att, Gen. Ym, my k>rd.
L. H. 8. What is it that yon examine hhn
about P What queations do you ask him, Mr.
Attorney?
Att, Gen, Who came to his master's hoii|M,
and at what time they came ?
Famfret, My lord, on Sunday the 30th of
October last, between two and three in the
noming, there came to my master's door the
corl of Warwick, and knocked at the door,
and there was capt. French with him ; and
.vhen thev were let in, mv lord of Warwick
UAd me that capt. French was wounded, and
ho himself hod a woniid, and he desired that
ny master might be called up for to dress the
wounds; especially, because capt. French
was very much wounded ; which accordingly
was dme in about a quarter of an hour aner
they were brought in.
Ait. Gen, Uid he desire to be concealed
when ho was come in ?
. L. H. S. Of whom do yon spoak, Mr.
Attmiey?
Att. Gen, My lord of Warwick.
Fomfret. He. did desire, that if any body
•iked ibr him, it should be said he was not
tkeia.
Att. Oen. Pray in what condition did my
lord of Warwick seem to be in at that time ?
Fomfret. Ho seamed to be very much con-
fal Ifait time, and bis fight hand, in
which he had his sword, and which was drawn,
was very much bloody.
Att, Uen, Was thesword bloody tbat he had
in his hand ?
Pomfret, The blade was bloody ; but whe-
ther it was all over bloody, I cannot tell ; there
was besides some blood upon the shell ; it was
very near all over bloody, as 1 remember.
Att, Gen, Pray, friend, consider what you
swore at the Coroner's Inquest about the blood
upon the sword.
Pontfret. Indeed 1 cannot say it was
bk>ody all alonff the blade ; bnt there was
blood upon the shell, and there was blood upon
the inside ; it was so, to the best of my re-
membrance.
Att, Gen, Whatcondition Was Mr. French^
sword in?
Pomfret, He had a drawn sword in his hand,
but I did not perceiro it had any blood upon if:
it was a large blade.
Att, Gen, How do you know what sort of
sword Mr. French's was, and in what conditioa
it was?
Pomfret. He desired me to take notice of
it next mominjg, and I did so ; and there was
no blood upon it.
Att. Gen, How came yon to be desired to
take notice of what passed there about thie
owords?
Pofrfrtt, My k>rd, there wis three of them
the next day, and one, it was said, was Mr.
Coote's, and another of them was my lord of
Warwick's, whksh I do believe was bloody from
the point upwards, very near ; but I cannot
directly say but that was afVerwards.
Att, Gen. Who brought in that sword that
you «ay vras Mr. Coote's ?
Pemfret, To the best of my remembrance,
capt. Dockwra brought it in ; it was almost
half an hour after my lord Warwick and capt.
French came into the house, when' they came
thither.
Att, Gen, They, who do you mean?
Pomfret, Captain James and he.
Att, Gen, Were they let in presently?
Pomfret, No, My lord of Warwick had de-
sired that they might be private there; but
when they knocked at the door, nty lord of
Warwick desired to know who they were; and
when it was understood tbat they were Mr.
James and Mr. Dockwra, they were let in by
my lord's order.
Att, Gen. Pray, which of all the four
broc^t in any sworti in a scabbard ?
Pomfret, It was captau Dockwra.
Att, Gen. Pray, did they appear to be all-of
a party ?
Pomfret, They were glad to see one another ;
and they Ulked a pretty while together ; bat
indeed I cannot say I heard what tliey talked.
Att. Gen, Pray, do you ^member my lord
of Warwick's sword, and what there was
upon it?
Pomfret, It was a steel sword, water-ffiit,
and as near as 1 can remember, there was blood
upon it for the most part from the ^a^ ^^vkA^.
11 WILLIAM HL
TrM (ifiht Earl of Wat&m^^
J/L Ctn. And wtiat did appe*r upon Mr,
Ffeflth** PI word ?
PtmJraL 1'ber« wa* wal*r aad dirtj but there
WiSQO bJrvod al nU,
An.Gm. Hot* biig did tii(*y staj' I here T
PmnfHi* Thry all etm I inywl itMiai half *ii
Imwr J 'and then nent a ways "ll ^"t Mi"- French,
who 9iaid ihcre.
Ait* Gen, VVhiil thi'ti k'cain*' orihc oihers?
J'crm/rrr. Wr. Jauie*, IVlf. TV^kwra, aiul my
lord ol^ VVani ick wrrti awn v ; aud iriy lord of
Watwick di*sh'cd parlicubrry, that w<i wwM
all t^kc care a!" 31r. iVenth, fdr Ue wai hiit
pjirlicijiftr *Hend ■ end Mr, Krc-ndi contiuuetl
there titl Sunday aboiil one of the dock.
Ati. Cm. was ibere any discourse ml that
tim^ abfiut Mr, C&v%e ?
I*0mfret^ Not that 1 heard of, one word,
^;i. Om« Was tb^re aay noti<^ tAkea of
Any <|u arret ttiiit liappeaed Leiween any body^
l^miifrcL N0| indeed, 1 did not bear them tike
iiolio'. of any oimrrel at all bclwe«fi any l>o4y.
An, Gen. Voa BBj Mr. Frpnch, when he
cnnie into yoor bouse, was wounded, and there
ws.^ c&re niLTticularly taken uf bim because be
wan wounded,
PomfrtL Yea ; my lord of Warwick desired
to lake care of him,
Alt. Otn. Then pray^ was there no diBCOune
how he came to be wounded f
Pmfni, Indeed I do not know how he
came to he wounded ; nor did 1 bear uoe word
of dlseoarse about it ; indeed 1 cannot say any
thing who woundctl him.
Aft. (Icfk. Fray will you recoUecl yourself,
and X^W ray Jord;^ wb^t sort of handle had my
lord <*f Warwick^R sword wheu yon saw it,
Fmfrti. It had a Btcd banilfe.
AiL Gen. Tray, cau you tell whether the
ibell waft o|ken or close ?
P^fnfr€i. I cannot tdl justly [ I siw it, and
that wn^ all*
Att. Gen, If 1 apprehend youj you lay my
lord had a wound in his hmid.
Fnmfrct^ Yia, my lord, be had io»
Ail. Gen. Pray, in what band tvas it that
he U'^s wotinded P
Pomfrti, To tbo best of my rememhrancei
it UAS in his right bond,
Ati, Gen, I'niy, did there appear much
blood there?
PttrnfieL Yes, my lord, indrprl there did,
■ HcrJ. llVf^^f, Yon talk of IVIr, James and
Mr. Dock wra^s a words ; pr»y in what condi-
tion were they ?
Pwfijrei, Mr. I>oekwra's sword was by his
side, and not drawn.
8eij. Wright. ^Vhat did you obserre of cap-
tain Jamtfii'ii award ?
Fmiifret. His sword was naked, and he had
lost bis scabbard ; hut how that came I cannot
lell ; and there was dirt on one side of tlie
liword ; and he said be had left hla scabbard
behind bim.
Ait. Gefi. Was there any blood upon bia
iword f
Pon^'iTft* No, there wms do lil^od tbat 1 41
see utMMi It,
Ah. Gin, Pray did yoti see any UMdnjna
BIr« E>ockwra'» nword f
Pomfrei. ^io, indeed, f did not wtm Mr.
Doekwra*! sif ord, tt was io the aiabbard bj lat
aide.
B. of Lfi£d§, My lonki there has bee^wtiei
here taken of seFeral swords tliat this wilMB
iaw ; ani} be takea so far EiAlice of my htid
Warwiak'>i sword, thai he leljs yuu w bit Ml
of hilt it had, and bow it was hiooiiy fr«aii <
point to the hilt ; I desire lie woukf ^m fit
oJl ae<k>tint of ihe le^ngth and brcaiilh «f iht
other mt'u'h swor*U, Mr. French » Mr Jvm^
and Air. Dnckwra's.
X. H. S, You said jufit oo*r» that yon tsek
notice of my lord of Warwick^a aword, ttuutt
was bloody from the point to the hikf vitt
«onof«word was it?
Pomfrei, It was a pretty bmail xwoid.
L. Hi>. Did you lake notice of f!>e «lkr
«wordS|What breadth or lenigih tbey wvrtiti?
Pafnjfft. No, my lord, I did not,
AtL Gen. WhUh was ihut sword that wm
difiy* hM you aay ?
Pofttfrtt. That was captaiu Frmch**.
Att* Gtn, tVaa that a broad aw ord or not?
Pomjrtl. N0| it waa not*
Att. Gin. Pray, was it oret- BiigfhtdraiS
momiflft that you itaw the sword»f
Fontjret, It was in the [DorDii||f ihMtlhM
a^eloell.
Ait. Gen. What time did my tont of War*
wick, and Mr. James, and Mr. Dockwrt p
away ?
Pamfrtt. My lord of ^'arwick and tber
were gone aevijral hours before Mr. Frendi;
and to the best of my remeoahrancr. Ml
James broke his sword upon the floor a^ bt
came in,
Att. Gen, Pray^ what swords were then
10 alJ that you saw there?
Pom fret. There was capl, French's, cait
Jameses, my lord of Warwick^a, and one M$*
CooleV, as Mr. French said wb^ it wv
brought in,
L. H. S. Have yon done witii this witna^
Mr. Attorney ?
Ait, Gen. Ycf, my lord, we have.
X. H, S. My brtf Warwick* will yon aik
him any quoitiona f
E. of Warwick. No, my lord.
X. H.S, Then» Mr. Attorney^ call your sest
witness.
Ait. Gen. Our next witness is Tfaocitf
GondaU, wbo h a sertaot at the Ba|nuo ^
Lon|^ Acre, as well as this man that was lut
(He was sworn.)
L, Jf , S. What questions do ywi ask hiBt
Mr. Attorney P
Att, G€n, My lord, I de«re be ivonM m-
qtiaint your lordsblps, what time it was mf
lord of Warwick and capt. French came to fm
m aster ^s bouse i'
Goodali, It was between one and tfv^o'dodt
in the mornings.
«6]
Jw ike Murder of Richard Ceoie, esq.
A. D. Ii699«
[986
.Ati, Gem. My lord, I desire he would ac-
ooaint your lordships what he saw and knows,
tkat pawed at that time ?
Goodall. All that I can say Lb, that I did see
my lord of Warwick's sword hloody , and it was
Mked in his hand, and I did see a wound on
his hand: indeed I did not see him when he
firat came iu, for he had been there a pretty
while before I saw him.
Att. Gen, Pray, in what condition was my
hird when you saw him ?
Goodall. He had his sword in one hand, and
il was bloody at the blade and at the hilt ; but
whdher it was bloody all over, indeed I did
■•t take notice of it, and so cannot givfi an ac-
count.
Att. Gen. Pray, what sort of sword was it ?
. . Goodall. Indeed I cannot give an account
what sort of sword it was, but it was either
steel or silier gilt, as I remember ; but I did
take notice that there was blood upon the hilt,
that is, upon the shell.
Alt, Gen. Was it an open shell, or a close
one?
Goodall. I think it was a close one. -
Att. Gen. Pray, did my lord of Warwick
giYe any order to be denied in the house, or for
any concealment there ?
'Goodall. Indeed I did not hear of any orders
given for ooncisaling of any body there ; but
my krd walked up and down very much con-
emed.
Att. Gen. Did not BIr. French come in with
Urn?
Goodall. I do bdiere he might: but I can-
nsl tay I saw him when he came in.
Att. Gen. Can you tell when Mr. James and
Mir. Dockwra came in ? How long was that
after my lord of Warwick was there, and Mr.
Jicnehr
GoodalL To the best of my remembrance
sod knowled^, it was half an hour afler my
lord of Warwick and Mr. French came, that
Mr. James and Mr. Dockwracame : I am snre
it was so belore I saw them in the house ; hut
indeed I cannot say directly when they came
in, or when they went out.
Att. Gen. Pray, which hand of my lord of
Warwick was it that was hurt, the right or
the left?
Goodall. Indeed, I cannot positively say ;
but 1 think it was the right hand.
Att. Gen, You talk of my lord of Warwick's
swonl; did you take any notice of Mr.
Prench's sword ?
Goodall. No, indeed ; I was busy about the
sffairs of the house ; I did see my lonl of-War-
wick's sword, but that was by chance, and it
was bloody at the hilt, and upon the blade ;
hut whether it were all over bloody, indeed I
cannot tell.
Att. Gen. 1 desire to ask him. Whether he
can tell who brought in Mr. Coote's sword
Ihitber? — Goodall. Indeed I cannot
L. fl. S. Mr. Attorney -General, have you
any more questions to ask him ?
Att» Gem. N0| my lord, not 1.
L. H. S. My lord of Warwick, will you asia
him any questons ?
£. ot Warwick. No, my lord.
L. H. S. Mr. Attorney, who is your next
witness.'
Att. Gen. My lord, our next witness is Mrs.
A. Goodall, this man's wife. [Who was sworn.]
L. H. S. What questions do you ask this
gentlewoman ?
Att. Gen. I desire that she would acquaint
your k)rdshi|^, whether she was at the Bagnio
in Long-acre when my lord of Warwick and
capt. French came in P
A. Goodall. 1 was there when my lord of
Warwick came in.
Att. Gen. Was capt. French with him P
A. Goodall. Yes, captain French was with
him.
Att. Gem About what o'clock was it that
they came there ?
X. GtHjdall. It was about two o'clock, as
near as I can remember.
Att. Gen. In what condition were they
when they came in, pray ?
A. Goodall. Mr. French was very much
wounded.
Att. Gen. Pray, how was my lord of War-
wick?
A. Goodall. My lord had his sword in his
hand, and it was very bloody, both at the kih,
and upon the blade.
Att. Gen. Did you observe any wound that
my lord had ?
A. Goodall. I think, to the best of my re-
membrance, my lord had his hand wrapped
lip in a handkerchief, which was bloody ^but
I was busy up and down in the house, and I
cannot so well tell what hand it was ; I was
indeed up and down there while they were
there.
Att. Gen. Do you know of any orders that
were given by my lord of Warwick to be con-
cealed while he was there ?
A. Goodall, He did desire the door might
not be opened to any body that asked for bim,
and that it might not be said that he was there ;
and when the other two gentlemen came to the
door, he went to the door himself, and when he
saw who they were, he ordered them to be let
in.
Ait. Gen. What was the occasion of his
going to the door himself?
A. Goodall. There was a knocking at the
door, and he had a mind to know who it was ;
and when it did appear it was Mr. James and
Mr. Dockwra, he himself ordered them to be
let in.
Att. Gen. How came the door to be open ts
tlieni ?
A. Goodall. Indeed I think he opened it
himself.
Att. Gen. How long was that aAer be and
cajit. French came in ?
A. Goodall. It was about half an hour.
Att. Gen. When they 6rst came in, what
postura were they in ? 'Had they any sworda
m their hands?
Wf}r
llVmMAMUL
TiM^a^Xmi^WmU^
m
JuemdaU. liidMlpQdlM^iyDeiiottoe,
rlMrtbor tlitj bad aar firwii in thiirlMiHli,
lor vhlit tbarhad wtai tiicy oubm In.
jMuOtfi.. Wha jMonnn if tbeA
SMff. JDkKifcwin, want niray witlaa n Ktde
iib lia4 n J lord «f WnrwM ordwid pnrti.
cnlar cum 16 be taken of Mr. Ewoh, aa liia
Akndi^trf Iw vaa pot to M afttt Ilia wmi
,PM 4nMd ; bat I caanfl toll wiMt d
«gMi| bwuD0'4lf Buirlard Wanrkic,iBid
nfc after*
iBidlbe
Mt.Gm* Itbiakjoawwaaemw^tikaimy
lord of Warwiok waa woonM aa tba '
wbiehfanttdwaail?
A.^hQdM. I cannot poeiinrebaqr,
itwaatharMtortbel^.
X. A&r will yon »iio dmaf Am Ung'a
oonnaaiiaik thia witoeaa any lartiwr fncatianiP
da*. Qm^-lHOf my ]ord» wn ahai aMK berno
I.
laHmy
B. of H^rvM. No, my lord.
Ait. 0<n. Tben oar
Amy* ivlto li a aniweon, nnd Svoa at tba Bama
intaaf-acre; ai^he will gire yoar lordepip
avtooomt wbnt naaeed witnin bia loBowladga
at Uiis time witbin bis boiue, and wbo eaaee
tbiibertreaaded,andwlMlMHicntor oarawaa
oi4md to be taken of MrTFkeneb, and by
(Mr. Amy was awom.)
Ait Om. I desire you wiD givean
to my lords wbat happened at your bouse early
in the moniiDg, the SOth of October last ?
Amy. The SOth of October last, about two of
the dock, 1 was knocked op out of m3r bed to
attend two geDtlemen, my lord Warwick and
captain French, wbo came then into my house.
AU, Gen, In what condition were they ?
Amy. Tbej were both wounded ; Mr. French
▼ery much, and my lord of Warwick in his
band.
Mi. Gen. Did you see any swords?
Amy. Yes; tbev bad both swords in their
hands, and my lord of Warwick's sword was
very bloody.
Ait. Gen. Well, Sir, when they came into
your house, what directions was given by my
loid Warwick?
Amy. tie gave directions, if any body should
aafc for him, they should say be was not there.
Alt. Gen, Did any body come and ask for
bimr
Amy. While we were taking care of Mr.
Frencn, and dressing bis wound, there were
some persons came and knocked at the door,
and my lord of Warwick did order, that nobody
should be- let in ; but he liimself went to the
door, and when he found that it was Mr. Dock-
wra and Mr. James, my knrd Warwick ordered
that they should be let m.
Att. Gen. Pray tall my lords what followed
af^tbat?
Aa^. After we haddremed Mr. Frtnoh— —
AU. Gen. By tbo -way, was than any par*
Mr.nnnehf ^ ..
Amy* « 08| my lon wsatoiok'
taltaM «f hito aa M^frnt-*--
Mr. ffrndi^ «ra«ndr«rltai „
Amy* I dKMsd anr bad Wi
Ait.Gm. Phw, W
ofWarvkk'awmindr
iiauf. liwi
Oil
m
UiA»
i. Gan. Fmjf hmr Imig dU «iy Mqr
theref * r ■
yisr Mr. Dookwin and Mh
in, and my knd'absttd.waa
a^jad n lillle while, and tiiey tbna'vm
.6m. What was
omyr
^. My loi« of Warwiak dcairad to
mataaralafaBofMr.FkoMh; andlhef
Mow let na go away s and tiwy want amK i
; .dM.Gm:FkaytwkBttuiiadUtfieyi^ii
yonr bouse f
Aaw. Whan tbay wort nwny.llWk it toi
loot talf an hoorafter they M coma ift
Ait.G€m. DidTantakaMliBnof aaamd
;,Mr.
iSTMlb
bat my kMfd of WarwiekVir
Jaiy. No,Mtf
Ati. Gen. Didyaaan
ibim. Aftarwavda in tba
called for blaawQid, and I
AtL Oan. Vmy, m wbat
sword? WaaitbkMdyr i
Amy. It was without blood, only aHttladilj.
Att. Gen. Pray, did you obserre tbstlli^
talked of any qv^rrel that had been bstasn
capt French and my kard, when they osiaeiif
Amy. No.
Att. Gen. Did you ask them any qaertimi
about it, the one or the other of them r
Amy. No, 1 did not.
Att. Gen. Did you bear them aay, bowAif
came by their wounds?— ilnry. No, I did ait
AU. Gen. Did you hear them talk ef ay
body beiitf killed, particularly Mr. Coota?
Amy. f did not know of any body bdif
killed till next day.
Att. Gen. Did you take any notice of JsMOi^
and Dockwra's swords ?
Amy. Truly, 1 took no notice of any sworil
but my lord Warwick's, while my hud Wsi»
wick was there in the house ; but the lOt
momiag Mr. French gare me bia sword, mi
there was another sword there, whieb Ma
French told me was capt. Coote'a sword.
Att. Gen. When was that ? How loaffdltf
my lord of Warwick, and Jamea, and Dtai^
wra. were gone away ?
ilsiy. It was some hours after.
Att, Gen. When did you bear of Mr.
being killed?
. Amy. About, nine o'clock next
heard of Mr. Coolers being killed.
Alt. Gen. Whom did you hear it fiuta'
Amy. From Pomfret, my aerranL
All. Gen. Did yon beat ^ *'
forihe Murder of Richard Code^ esq.
A. p. 1699.
t990
lord of Warwick, capt French, Mr.
1 Mr. Dodcwnt about it?
To^ I did not
n. Did ihey not talk how those
ime th^ had ; nor did not yon ask
them?.
0, I did ask no question of either of
d in half an hour after they came in,
r Warwick and the other two gentle-
away.
ni. When they left French there,
v were left about him ?
>nly to take care of him, my lord of
ieaired that.
». What reason did my lord giro for
heard nothing of reason, only that
I particular friend.
sn. Did you hear them talk any
Lther they would go, when they went
did hear some talk about going into
y.
n. Do you know whither they went,
' ivent away, from your house ?
(o, indeed I did not.
n. My lord, we have done with him.
. My lord Warwick, will your lord-
W\n witness any questions ?
Tir. I desire to have bim ariced, whe-
; not wounded in the hand.
lis hand was very bloody, the hand-
bat was about U was wet with th«
^ar. I desire to ask him, when it was
.V capt. French's sword ?
i was not before the morning ; it was
o'clock, as I remember.
orm. Before this witness goes away,
e may be asked One question, wlie-
3 tell the size of Mr. French's sword?
1. Here is a noble lord that desires to
you can tell about capt. French's
at sort of sword it was ?
Is to the blade, it was a middle-sized
orm. Was it a broad blade or no ?
[o, my lord, it was not a broad blade.
. Mr. Attorney, who is your next
!». Capt Loftus Duckinfieid. (Who
»•)
m. This gentleman will acquaint
ships what discourse past between
Uemen the next day ; pray. Sir, ac-
f lords what you' heard about Mr.
atli. and when and where.
yuch, £arly in the morning I was
I accident.
\n. By whom ?
huk. One of the company, I cannot
I think tliey were all together liicn,
r Warwick, capt. James, capt. Dork-
Mhody else.
m. What was their discourse?
yuek. s They said, they believed cap-
An, Qon. Did th^ tell you by whom ?
Capt Dvcib. By Mr. French, every body did
say he was his adrenary •
AH, Gen. What account waa given of the
action ?
Capt Duck, They said it was done in the
dark, and capt. French waa his adversary.
Alt, Oen. Was there any notice taken of
any duel ?
Capt. Duck, Yes, there was, between those
two, and the otb^ persons on both sides ; and
it waa said my lord of Warwick was friend to
Mr. Coote, and my lord Mohun.
Att. Gen, Who were on the other side ?
Capt. DtLck. Mr. Dockwra and Mr. James.
Att. Gen. Was thereany discourse, who ac-
tually ibmrfat?
Capt Duck. It was said, that capt French
fought with capt. Coote, as they beueved, and
Mr. James with my lord of Warwick.
Att, Gen, Did you see my lord of Warwick's
sword ?
Capt. Duck. Seme time of the day I dkl ;
but 1 cannot tell whether it was in the moniing,
or no.
Att. Gen^ In what conditiott was it? Was it
bloody or not ?
Capt Duck. It wasa steel sword.
Att. Gen. How long did thev stay with youf
Capt Duck, About half an iiour.
Att. Gen. Did they come publicly ?
Capt Duck. We went away in a haokoej
Att. Gen. Pktiy, what discourse was thert
about consulting to go into the country to-
gether?
Cant Dtic^ That might be discoursed, but
by whom 1 cannot tell.
Att. Gen, Did my lord of Warwick talk of
going into the country ?
Capt. Duck. Whether the company talked
of it, or my lord of Warwidk in particular, and
the rest assented to it, I cannot -well tall.
Att, Gen. Whither did they go?
Capt. Dutk, I oannot directly tell.
Att. Gen, What time of the day was it P
Capt. Duck, It was about six of the clock.
Att. Gen, Cannot you tell whither t)My
went ?
Capt. Duck. Ca[>t. James and capt Dock-
wra went to the 8bip and Castle in ComhiK
about five o'clock or six, as near as 1 can re^
member.
Alt. Gen, Can you fell what time my lord
of Warwick went away ?
Ca{;t Duck. No, 1 cannot tell what time he
went away, not directly.
' Att, Gen, Can you tell of any agreement
amongst them, whither they were* to go?
Capt. Duck. No, I cannot
Alt, Gen. What discourse or concern did
you ol)6erve past between them, oonccraing
capt. I'oote?
Capt. Duck. My lonl of Warwick shewed .
a great deal of concern for his friend Mr. Coote.
Att, Gen.. Had you any notieeof Mr. Coote's
death amongst you ?
991] 11 WILLIAM IIL
Capt. Duck, We had notice before we went
away ; but I cannot tell whether it was before
my lord of Warwick was gone.
Alt. Gen. Was it at^r tlie discourse of going
into the country, or before ?
Capt. Duck. Indeed, I cannot directly say
when it was.
An. Gen. Pray, what reason was there for
their goiogf into the country before he was
dead?
Capt Duck. They believed he was dead.
Att. Gen. Cannot you tell the reason why
they would go into the country ?
Capt. Duck. No, indeed, I cannot tell the
reason.
Att. Gen. Did y on obsenre my lord of War-
wick's sword ? Was there any blood upon it ?
Capt. Duck. I cannot say his sword was
Uoody at the point ; the whole blade and shell
was bloody, to the best of my remembrance.
Att. Gen. What sort of a sword was it?
Capt. Duck. It was a pretty broad blade, a
liollow blade, and a hollow open shell.
Att. Gen. Was there any discourse concern-
ing capt. French ?
Capt. Duck. Yes, they thought he was very
ill wounded.
Att. Gen. Was there any, and what dis-
conrse, who should give my lord of Warwick
bis wound ?
Capt. Duck. It was said, they believed capt.
James gave my lord his wound.
Att. Gen. Fray, was there any blood upon
Mr. James's sword, or was he wounded ?
Capt. Duck. I saw no wound upon capt.
James, that I know of.
L. H. S. Do you believe that my lord War-
wick's sword was bloodied with the hurt of his
own hand, or any oUierwise ?
Capt. Duck. I cannot tell ; it was a cut
shell, and the outside bloody as well as the in.
L. H. S. My lord Warwick, will your lord-
shij) ask this witness any questions?
i. oi' War. No, my lord.
L. H. S. 3Ir. Attorney, if you have any
other witness, pray rail them.
Another Witness was pro<liiced, that be-
longed to the Ship and Castle in Cornhill.
Att. Gen. This man will give you an ac-
count what passed at his house at tlint time,
and between whom; pray, uiil you tell my
lurds u ho \ias at your house the 30th of Octo-
ber last, and what [wst there then ?
Witness. My lord of Warwick, capt. James,
and capt. Dockwra ; and when my lord of
Warwick came in, 1 thought my lord was in a
very givat concern, and called for pen, ink,
and p:iper, and I feared there was some quurrel
in hand ; but they said no, the qiuirrel was
over, aiul sa\ s my lord of Warwick, 1 a:n ufruid
poor Coote as killed.
Att. Gen. Did you observe any desire to be
private?
Witness. No, indeed, I cannot tell that.
Att. Gen. How long did they <)uutinue
Hierc?
Trial of the Eart of Wartjoick^
\m
Witneu. About six a-clock my lord of Wv-
wick, and cant James, and capt Uockvn,
and capt. Duclcinfield went away.
Att. Gen. Can yon tell who west with my
loid Warwick?
Witneu. No, indeed, I cannot tdl who went
with my lord Warwick ; there came in a gm-
tleman in bUck, whom 1 knew to be my loid
of Warwick's steward, and be came and spoke
some words to my lord of Warwick, about a
quarter of an hour after they came in, andtbct
they went away, for after that I did not bar
any fiirther dicsoourse.
Att. Gen. What became of the rest of tki
company ?
Witneu. They went away ; I «lo not koov
what became ofthem, nor wbither they west;
some ofthem went in and out of one room iaii
another several times, two or three tiroes, and
came out agmn.
Att, Gen. My lord, we have done with tlsi
witness.
X. H. S. My lord Warwick, will yoa Mk
him any questions ? — &. of War. No, my kfi
X. It. S. Mr. Attorney, who is your tual
witness ?
Att. Gen. Mr. Salmon, the snroeoo, who
by the coroner's order searched the wounL
(>Vho was sworn.)
Att. Gen. Pray, Sir, was you ordered hj
the coroner to view the body of Mr. Coole?
&i^. Yes, I was onlered by the coroMr to
inspect the body of capt. Coote, and to give ibo
jury an account of the nature of the woaads.
Att. Gen. Pray, upon the view of the body,
what wounds had he ?
Suim. There was two wounds ; one on the
breast near the collar bone, running downiiinii
very deep.
Att. Gen. Pray, what part of the b.-raslirji
it, and how deep u'as it ?
Saim. It was on the left part ofthebrca«t
near the collar bone, and it penetrated four «r
five inches.
Att. Otn. Can you tjness at what sort ot
sword it was that made the wound?
Salm. No, indeed, Sir, 1 cannot.
Ait. Ocn. Was it a broad swoni, oralill^
sword ?
!Sulm. The orifice was ahont the Itnsfth ol
halt'an inch, and alM)ul the depth n\' {)\c iofhw-
Att. Ocn. Was that nia«lo with a brtwd
sw'oid, or with a narrow sword ?
Sfifm. indeed, 1 cannot tell.
Att. Gen. You say he hail another wound;
w licrc was that ?
Sftlm. That was on his left side loo, mx
unto ihe short rih-j, und r the l.i-i nli; \\\»^
was about the l.iii;^lh ot" an inch, an«l «!* tht
depth of six inches, aiid il run llnoii;;h tlodil'
phra<;niu.
I Att. (hn. Dill yoM lake or.c of these woiin^
; or both of thcui to bt; mortal ?
SultTi. 1 did IomI; u;)on eithrr of thcmtobi
mortal, and to !»«.* the occ;!^-'.on uf his death.
Att. (itn. (.';in you tell, whelhcr they wc*
both made with one and ihc saiucs^ronl?
B
093]
far the Murder of Richard Caote^ esq.
i^ Salm* Indeed I cannot tell that, wliether
Khejf were made wiiK une stvord, or two.
» At(* Ceti. Cannot ymi tell liow thej ap-
peared to be P I 8U|»p{>M; yi>u prulM^d tliein.
Stilm, Yes, I probed them both ; one wai
^uite through tite diti|>hragnia.
Att, Gen, What time wm ilthnt y&u viewed
tlK! body by the order of ihe coroner S*
Saim, I saw tlie body at seven a-clock on
jBoDday uight.
Att, Gen. If ray lord of Warwick desire to
msk him any questions, he may«
E, of War. My lord, L desire 1o ask brni,
^lietber any of the wonnds were large enough
to be n^ade by a sword run up to the hi It ?
StiiitL, No, luy lord, sure they were not.
E. of War\ My lord» 1 desire to know of
♦lim, whether both these wounds were given
^bciore or behind ?
^K Salm, I can only tell you the length and
^^epth hy follonin;^ of the prolie ; the one was
downwards, and the other npworda.
Att. Gen* Do yoti suppose both tliose wounds
were given when the person was standing,
backward or forward*
Saltn, h is impossible lo tell bow Ibey were
^veu, because of the variety of the |i«sture« oi^
ihe boily in the divers cajjacitiea thereby of re-
eeiif^ing the wonnds*
Att. Gen. Pray, can you tell whether ihey
were g^rven by one and the same sword, or nof
. Saim. Indeeil I cannot leth
Att. Gen, Do you know any thing to the
^ntnry T
Saim, 1 cannot liy any thing for it or
igftinat it.
^^ E» of Kif^giton. My lorfls, this witne«a, if I
^hfprebend liiin right, says, the wound on bis
^Biiie watt a laig^c wound.
^K Satm. Ye^y n very large %vound, of the length
^^f about three quarters of an inch at the orifire^
and five or six inches deep.
E. of Kingsfmi, 1 desire he may tell witelher
that wound could be given by any other than a
^road sword ?
Sa hi . i can n nt tell t tt at .
£. of Rochesitr. Indeed, my Iordd\ I would
Ka? e him asked this question ag^ain ; I know
p, not whether he can answer it or no ; but I
^^aii&fit but think it is proper to have some ac-
^BcMiut of litis mntter. In all enquiries before
^^■^ttirooer, there is a Judgment to be ntade of
^^^B^iure of the wi»und, in order to furuj the
^JPnRincnts, and that tlie jury amy kuo^v with
^^phat sort of weapon it was made ; and it is his
^^rofession as a surg'oon to know such matters.
L. U, 5. Mr. fcilmon, yo« hear what is re*
<|ulrc!d of you by my noble lords, and Ihe ob-
scfvation which is made. You are the surgeon
•rut for by the coroner on purpose to inspect this
bcidy ; and when you did so, it was incumbent
li|HNi \ou to conudi-'r and give inforroatiun, as
well with what sort of instrument the wound
was given, a."! the length and depth of tire
bWoiiuu, that th^ \x\r\ mtghl consider upon all
Wfche circumstances of the occsiion, and manner
"Vf the party's death : and toy lords would
VOL. Xfll,
know, whether by the oniices of the wounds,
when you insptn^ied them, yon can muke a
judgment, if they were made by atveral
swords, or the same swoni ?
Saim, I cuonot say that 1 saw any difference
between theoriBces, as to the nature of the tu-
slrumcnt they were given with, nor wliether
they were made by one anil the saine suord or
no ; only the one orifice was bigger than tha
other ; that of the side was bigger than that at
the collar-bone.
L. H, S. Then so far we have light (if I ap-
prehend you rightly), the orifice of tire upper
wound was not near so wide ap; that of the
lower ; but it seems to lie much, in or»eof your
profession,, not to be able to judge whether the
woundis were given with the same sort of sword
when there was such a dltierence in theoriljces.
Salm* That below was a deeper wound ;
and there was a considerable difierence between
the larn^enessof one and the other.
hovS Audlet/, My lords, I desire he may tell
5 our lordships bow far backviard the wound in
the side lay.
Salm, It was directly on the left side, imme-
iliately under the two last ribs, aud past througli
the dtaphragma.
M, 0f Narnmnh^, Pray, my lords, let him
point with his finger whereabouls it was.
-£* H. S. My lords would have you shew
them with your finger^ whereabouts it was*
(Which he did.)
E. of Warw, It li a very material qnestloa
for me, that he should answer, whether he di<i
believe that one and the same sword might not
give l#olh wotinds,
Satm, 1 cannot say any thing of it one way
or other ; but one wound went much further
than the other, because it was in u fleshy part ;
and in such a case, the further the swurdgoes
in, it makes the wound larger.
Att. Gctt. Then our next witness is Stephen
Turuer, who was Mr. Coote's man ; and be
XV ill give you an account what sword bis roas-
ter had, and where he found it.
[He was sworn, a sword was shewn him.]
Turner. This was my master's sword, Mr,
Coiite^B ; and 1 never saw it atWr he went out
in the morning, till I saw it in the hands of the
constable, and afterwards tretbre the coroner.
Alt. Gen. What time did you hear of your
masier^s death ?
Turner , It was al>out nine a- clock next
morning that I heard he was dead.
Att. Gen. Where was your master's body ?
Turfier. It was in St. Martin's- lane.
Earl of Tankerviik. I w on Id desire he might
be asked, whether bis master used his left hand
or his right ?
Turner. I do believe he was a right-handed
man. I did never see him fence. It was on
tlie Sunday morning that I went to the Round'
house, where 1 found my master dead.
£. of Worn, I desire he may be asked, whe-
ther he has not observed a particular kiudntaMt^
and friendship betwe^ his isiijtf r aud me f
3S
im\
IIAVILLIAM III.
THal ofAe Earl of mtnekH,
P»
'Turnrr. Yrs,mylonl; I have Kevcral timn
waitcfl upon my niasttr, ulieii my lord aad be
ivufi^ ta;;c!llicr, ami tliey «vens always very ci?il
and kind one to ahutliiT ; and J never heard
•nff uoni of'any unkindni'sabctwien tlicm.
Kt of Warw. Wlicilier li« kuuws oi* any
quarrtl that was between ux ?
THintr. No, I never did.)
iSi. (»f Wnrw. Whether he did not use to lie
at my lod|;i»{rn sometimes i
L. U. S. You heiir my lord** question :
what say ymi i Did your master use to lie at
my lord ut^ \VurwickVloi1{|;ini;8 at any time !f
Turner. Yea ; very olUu.
Alt, Gen, Pray call Pomfret again, oud let
4iJin see the swerd.
[Then he came in, and two swords were
•liewn him.]
Att. Gen, I desire he may acquaint your
lordships u hat he knows of those two swords.
PomJ'reL These two swords were brouirht
in by some of the com|>any that came to hiy
toaster'^ house ; and when they were shewn to
cantain Trench in the niorniujr he owned this
to lie bb, and the other to be Mr. Cootc's ; and
lie desired that notice ini^ht be taken, that his
■word was dirty but not bloody ; and Uiere
Vas some blood upon the other.
. Atl. Gen. Who brought in Mr. Coote's
tword ?
* P(lf/l/rf^ Indeed I cannot tell.
Ati, Gen. Tfien our last uiere of evidence,
iny lord, will be thut ot Mr. White the
coroner. ( W ho was sworn . )
L. 11. S, W hat do you ask him, Mr.
Atiorncy ?
Atl. Uai. From whom Lad he tht'se swords 1^
[The swords w ire shewn him.]
White. ]\loy it jileasc your '^jiace, tliese
sworils were tleliier*-*! lo me by the constable.
Alt. ( I A. y[\ Innis, 1 dtfsire he may be
asKct!. W \\K'\\\< r, u|uin his vi'jw olthe body, he
hiokeil iijon ilic woiiniis; ami, whflhor he did
anpii ht'iiil liny >\iTi. ♦>iv(a by one and the
b;;u»c sworil,
\Vh.i\\ y\\\y It |Kr.':<i» your p-»ee, wlirn 1
had >uorn n»> nv.jr: ••:, I ^.*if ll-r ili«' surijcon
lliiit w;.s htri- b^|i;:\, .."il - :; ,» iii!:, ni.ier to
prnlw ih.-^ uonnns. tli;.l tin- i-iry ml^li! I:mow
the nature of tiiein. in ov.I.m r> the drawi-t-j iiii
the inquisition ; ;!iid I «ii.i ♦'\i.rt>5'«!y a^k hiiii,
V hclliei' li'j louml an\ s:iirii di^tiniiion In fv.eon
thtrs, Inat iliev w»re ^\\(\\ by t-ne r.rii •:;L■
sn•ll>■ >; ( .^.|>i!!, til" iJ.iS !«.!.! vf:^^-i:.i : i.^* s?."j!,
:!s he "iixs i.;i\v, iJ:.'.! he loi Id nm i.!', v.iic-
l!;vi' ii.i UiiiiiuiN ^^i■re l'iuii i.v t.\«. ...mt.N, • r
li\ e'..e ; liut he «!i.l ;..',iitni .id ihoit? wis :>.
j.i.-;:l il;tiueiieo Ia ;'.. een ll.v'ui, ai! 1 «•' fl:«! i :
\ \\ 'j,.uy'\"\\[\ i!i. 4'iiL^e eia \. ou:m1 il"t> dose
ii;» \^!ji .1 liu \\\\\ In I , li! : on- ol' tl.-- "v^ounds
L. H. S, My lord of Warwidi, wiU jm lak
this witness any questious I'
£. of War, No, my lord.
X« H. S. Make proclamation for rilence.
C7. of the Cr. Serjsant ftfromn, uake pro-
clamation.
Serf, at Armt. O yes, O yes, O tcs! His
grace, my loni htjirh btewanfof En^nd, doil
strictly ciiarg^e and comiuund all maoMr «f
persons here present to keep silcace^ apoe pan
of imprisonment.
L. 11. S, My Ion] of Warwick, the kiiifl
counsel have made an end of gi«iitfr evidence
for the king ; now is the prosier time lor joo
to enter upon your defence.
E: of War, May it please your grue, and
yon my noble lords, my peers,
J stand here before your iordshipf, auiprf
of tlie kiunkr of Mr. Coote, of frhich I an*
innocent, that I came and voluntarily surrn-
dered mysdf so soon as I heard yonr hmUipl
mii^ht be at leisure to try me ; and had aooMt
done it, but that tlie king was not then b(R»
nor your lordships sittiD|p, and bad no niarf*
mider{|fu a long confinement ; and ne* I
think I mi^it well submit it to your kirdshipft*
judgment, even on the evidence tkat bai m*
oAmil against nM, whether there bath ben
an^ things proved of malice prepense, sr b^
beiRS^ any actor therein, so as to adjadfBBC
g;ui(ty. And 1 think I may wKh huaible ■*•
mission to your krdships say, that my inao-
cenoe appearcftli even from several of tbe wii^
nesses who have been examined a^inil rsfl
which I will not trouble your lordi»bi{)fl to k-
peut, but submit to your memory and ohiena-
tion .
But, my lords, the safety of my life iot$
not .so much ciuir^Tii me m this cise, :s ib<
vindiciilion of my lK»nour and niiutatirni trw*
the liilse rftleetions to which the proseciiiw h>
endcavuureii to cxposo nse ; and 1 shrill theif-
lore beg^ your lord«liip5' patience to giie afiii
and full account of this matter : in which thf
duty I oive to your ionlships, and to justice is
general, and the right 1 owe lo my own catitf
ill particular, do so oblige me, that I w til not is
ilie least prcvaricitc, neither will I conceal or
d »ny any thiii^- tha: is trne.
My Ion Is. 1 must con tlss f was thrrcwhcs
lliis ai:fi>rli.iia:c Dcei-iint liappri:-.), which
mu^t !»♦? a u'r^it ni;s(orfv.i:o in r.iiy case, but
was ir.-ro so to me in il;:«, l'ecnt:s» Mr. Coote
e..is n»\ jiaiilt?al»i;- {', i\:\ ; •n-l 1 i.:d nil 1 cmM
:o liinl.-r it. a*, y. :]r lor J-.iji;'a may observe by
:.K' 'vl.il.: j'.r.ir.i^'i' "-s.
ii
l!tl K
t::e o.i in-
to
ti.t I «n; ^i 1.-. ii i.:(.n.iMMUce, it v\as .Jinosi bl->
i.:,. i ; ■ :.. •
-I*\. Citii. Wc' ha-.rdo;ic \s\i\\ our r\iilencc,
Bill. I i^c li».a;- ^^\ydi mv icrd of Waiwiik .nv*
uj i:. . .
.1 t!-i; S-\;.
::.l 1. :.:-;
Hv t .It L-jck^t ^. V
uscil o:iLn i-) ;:: :^: : '
veral ot" ju iir.-l "m/
UP.e'.i^i'fTo.is . .1 1
ue;v\.-> ;.. ..'^ :
M^-c*! ;<• !■.■ V..; I *. .
haj»p?ne i so:.«i* r.-
Mr. r.i.tit.) Mr. i':
for the iick'.'HiiiUj
;!..
•*.i v.licn mv kxri
f^il: r geiitfcnes,
e <:r.:it» onmpUj
; M'l in :,ori*f» tjv.e aftcTH^
1 \\\ -?, V-. ( noteraisi
. <..,,. V.;-..* I:c and wt
■A :■:' v"»^-l i.- :-.>»ur, M»t
! '"?!■ r: ii'ii ;l;i*n ihew
er -.vx ♦ \iM'?*loni fifSB
■ ';. wi.tiihfei'pon ttiw
:.ui a bE!;:gi»aiJ, welefl
•«&7]
fir the Murder of Richard CtSoitf esq.
A. D. TG99,
tOSB
Uie apper room, and I proposed to send three
lM)ttles of wine to my own lodgin^;^, and to carry
him tbitlier to prevent the ouarrel. But while
tlie company stopped to call for a glass of ale
•t the bar belovr, Mr. Coote (whose unfortunate
humour was sometimes to he quarrelsome) did
cigiin provoke Mr. French to such degree, that
ibey Ihere drew their swords ; but we then pre^
vented them of doing any mischief: then Mr.
Coote still insistiag to quarrel further with Mr.
.French, my lord Mobun and I pronosed to
send for the guards to prevent them : out they
h^ got chairs to go towards Leioester-lields ;
and my lord Mohun and I, a^ friends to Mr.
Coote, and intending to prevent any hurt to
him, dtil follow him m two other chairs ; and
as he was going up St. Martin's- lane, stopped
him, and 1 extremely there pressed him to re-
turn and be friends with Mr. French, or at least
^fer it, for that tlie night was very dark and wet;
.«ul while we were so persuading of him, Mr.
French in one chair, and Mr. James and Mr.
Dockwra in two other chairs past by us, (which
we guessed to be them) on which Mr. Coote
ina&his chairmen tuke him up ogain, and be-
cause the chairmen would not follow Mr.
French faster, threatened to prick him behind ;
^uhI when we were gone to Green -street, and
^t out of ouv f-haii-v, Mr. Coote oflered half a
l^inea to be changed to pay tor all our three
chairs, but tliey nut having change, he desired
lenl MohuD to pay the tliroc shillings, which
he did. And in a few minutes ai>cr, Mr. Cnote
and Mr. French engaged ia the Hclds, whitiier
1 went for the assistance and in defence of Mr.
Cooto; and received a icry ill wound in my
riffbt hand ; and there this fatal accident belel
Ilr. Coote from Mr. French, whom Mr. Coote
Jbfd jdangerously wounded, and J must account
it a great unhappinessto us all who were there:
hut so hr was 1 from encouraging of it, that I
ivill prove to your lordships tiiat 1 did my ut-
IDoat endeavours to prevent it ; so far from any
dengu upon him, that 1 exposed my own lite
fo pave hif ; so lar from prepense malice, that
I will, by many witnesses of good quality ai(il
credit, prove to your lordships a constant, good
«nd uninterrupted friendship, from the tirst of
our acquaintance to the time of. his dt>ath ;
wbich will appear by many instances uf my
frequent company and correspondence with
him; oAeo lending him money, and paying his
leokooings ; and abput two months bdbre his
ilepitl^ lent him an hundred guineas towards
ln^'ms him an ensign's place in the guards,
end often, and even two nights before this, he
iodffed with me, aud that very nighl I paid his
Reckoning. And when I have proved these
.thioip^ aud answered what has been said about
jtl^eevonl, aud what other objections tliey have
made, I doubt nor but that a shall be acquitted
•to the entira satisfaction of your lordsliips, and
M the world that hear it.
Beforo I go u|ion my evidence, I will erave
leaf e further to observe to your lordships, that
Ht the Old Bailey, when I was absent, Mr.
Ffudii J«fae8»«^Deckwrey bftwe bejen nil
#ied on the same indictment now before your
lordships ; and it was then opened and attempt-
ed, OS now it is, to prove it upon me ahio ; and
by most of them the same witnesses who have
now appeared ; and tlicy were thereupon con*
vjcted only of manslaughter, which could not
have been, if J had Men guilty of uiurdeiu
And OR tluit trial it plainly appeared that Blr.
French was the person with wjiom he quai>>
relied, and who luHed him. And now.l will
call my witnesses.
' X. H. S, Will your lordship please to go on
to call your witnesses, for the proof of what yo«
have said ; that is the method, and then you
are to uiake such observations as you please.
£. of War. My first witness is cant. Keet^
ing, who was with me at Locket's, but went
away before capt. Coote or any of them came i
aud he will tell you I was witu him a while.
[^ThcR captain Keeting stood up.]
X. H. <S. Capt. Keeting, yon are not upoe
your oath, because the law will not allow it
In cases of this nature the witoesses for the
prisoner are not to be upon oath ; but you are
to consider that you speak in God's presence,
who does require the truth shoulfl be testiiied
in all causes liefore courts of judicature ; and
their lordships do expect, that in what evidenoe
you give here, yon should sjieak with the same
i-egard to truth as if you were upon oath ; yon
hear to what it is my lonl of Warwick desirei
to have you cxaniiiu><I, what say you to it? . .
('apt. Kei'titig. Aly lord, 1 will tell vour lonN
ship all the matter Tkuow of it. I met with
my lord of Warwick that eveninnp at Tom's
Coffee- house, and we continued there tili
about eight at night ; I went away to see for a
gentleman that owe«l me money, and after-
wards I went to Locket's ; end while I was
ihere, the drawer came up and told me, my
lord of Warwick desired to speak with me ;
and when he came up. into tlie room, he said
he was to meet w itii my lord Mohun there,
and capt. Coote, - a\id he asked me if I
knew where cajit. French and capt. James
were; . I told him 1 diped with capt. Coote at
Sliuttieworth's ; and.ia a while after, capt.
Ctiotc came in, and about an hour and an hal^^
1 think, I continued there, and capt. French
came in ; capt. J3ockwra und we drank togb-
ilier fur an hour and- an halfyaniUhey admh^
about ten o'clock, that my lord Muliun was not
come ; and I payed my reckoning, not being
very well, and avuy I went home ; Mr. Jamee
came in just beforo 1 went away ; but there wee
no quarrelling, nor any thing like it before I
went away. ' «
E. of War. My lord, I desire he may be
Bskeil, Whether we did not usually meet there
as friends, especially capt Coote and I ? '
Capt. KeeiiHg. Captain C^oote and my lord
of Warwick used to be almost every day tof
get her at that place.
E. of War. Pray, did he ever know or oIh
serve any dillereuce or quarrel between caplb
Coote and »)€•' . .;.^
i
999] 11 ^VILLIAM III.
Cftpt. Kteting. No, my lonl, I mtct mw
any iliit>z but Ihe ijreatfst frientUhip between
my lonl of AVar«icli ant! captain tViuie that
could be; I iva.sui(h ihcru, aiid saw I hem to-
^gatlier almoit tFtiy day.
X. H, 5, HaTcyou any Ihing further to ex*
«inine ihis uilncss to ?
E. of War, No, my lord, I have no otht r
qu«9tion to ask him*
X. Jl* S» Who m yoor next witness, my
lonl?
K. of War, My lord, 1 suppose f shall not
need to trouble you to exmrmne the chairmen
ortr again ; your lordships have heard wbnt
they can say : 1 desire colooel Stauhopc may
be eiLtle<l«
[Who it seems stood by the Cliair of State,
atid it %Mis some ivhile before he could get
round to couie to the place where the witnesses
were to Uaad.]
L, H. S. While this witness gets round, if
your lordship hos a uy other %niae(»s residy to
ctAud up, pr^y let hiui be calleiL
E, of if iir. To pTOf e the kiudoess between
csptp Coote and uie^ I det^ire coL Blisset may
be called. [Who stood up.]
L. H. S, What is it your Jordship ahks this
witness, or calH liiui !o'?
E« of War, To testify what he knows of
any kimloess or uiikiiidne^s between ca^tt.
Cuote uod rae ; whether lie hus not been otien
in our comjiony T
X. //, S* I lave yoti been often in company
with my lord olVVarviick and cspt. Coot« ?
Col. BtUtct, Yes, my lord, J was very \fcH
acquairjted with both af them for a twelve-
month past bt- fore this accident, and I have
<»Ueu k-en in their com(»aoy, aod nlMays oh-
servcf) that there was a great deal uf friendship
and k in dne«is between them.
£ «f War. My lord, 1 desire he may tell
any particular iDslatice that he knows or can
remember.
CoL lUiiitt. I remember when capt. Coote
had his commission in the regiment of guards,
he wa» complaining of the »trei^lMne!»s of bis
I circumstances j be was to pay for his commis-
sion 400 guineas, and said lit hail hut 300 ibr
to pay for it j and my lord uf Warwick did
tht-u stiy to him, do not tioublc yourself about
tb;itf or let not that disturb you, lor 1 will lake
fare you shall have 100 gmiieas, and be said
be would give onler to his stewartl lo pay him
^0 much ; and [ was told afterwards that he
did so,
£, of War. I desire he may telU if he knows
of any other particular instauces of my friend-
ihip to Mr, Coote ?
Ooh Blaaft, Once when he was arrested
by bis tuylor for 19^ my lord lent him five
guineas, and used very trequently to pay bis
reckoning for htm.
E, of War. I desire hem*y tell, if he knows
any thing else ; am) ' i ' he has nut lain at
my hfd^ugs, arid 1^ but some s ma 11
time before this accniviu a»]}^icn«d»
Trial of the Earl of Wartnck,
Col, B/ttief . About tm days Ufam ihifl
happy accident hap(Hi V ? :•% at my kt
Warwick's hHl^iospi, ^< i racusill
found en ptXoote B-dreto.^ui^ liit««M:lf ;
ed hiui how that came to ptm, and ibe^ lol
they had been up late tog^her,«nd that "
sent home for his man tn dreas him*elf tii
ii]H>n which L did ohfser^e that they bad
rambling tocfciher over uighc ; *td
a very great famiUarity between
E. of War, Did you ohmn
between us P
Coh Blisiet, No, nooe at all ; I
of any quarrel between roy lord of
and cant, t' ^ V t I iAme
particular k i i ween them ;
deal of friejK^uij- k ivnow my Icwt! -
shewed to him, in i^mying of i
him, and lending biro monev »'
E. of l^^^r. My lord, 1
asked, whetlier he does ma .
Coote was straitened ibr money I
Col. BImet. I did hear capt. CVwir'
that he hiid not received v.< '
tather for 13 months, and hi
with him, and would nn
l>ecause he would lun
entail, and settle two or iijh e
upuu a tvhore he had.
Ait. O eii , I'ro _v , Si r, will y on
yourself, aud though you are
oath, answer the tjni*.Mn(iv ir
obliged to speak the ti
sworn, whenever you < .
mouy iu a court ot judirnture ; |iri|
my noble lords here, wiu'iher ym
hear my lord Warwick coifiplaOi
Coote ? '
CoK Bliuet, No, I never did tic«rl
plain of him,
Alt. Gen, Did you never hear lUe
of nny quarrel between them ?
Col. BlUsrt, No, indeed, I did nei
any quarrel tietweeu them,
Att. Gen, Did }0U never hear of
kindness at all f
Co). BiiMsti. No, indeed, my (nrd,
never so much as beard of ibe'liiiM
whatsoever.
X. H S. Well then, my UmK ^ho
call next?
E.of irar. Noweol : v \
I desire ho may be a^l
whether he itoes ttot ku^
(•hip ihut wafi liotMeeii r
wbiit miitances he can 4. ^
i. //. S. You are V' tv
you are not upon your ^ 1 !
court, and under no Its
tity the truth, and not I
hear what rny noble Im
CoL Stanhvpe. My I
lord of Warwick ami •
twelvemonth, and 1 diil
thcr uc obserf cU any puriKuidr
1001^ ^ iXe Murder tfHiehard Code, esq. A. P. 1099.
[lOQf
tween capl Coote and me, much about the
time of tfaU business ?
Col. Stanhope. About eigfat or ten days be-
fore this unhappy accident, I went to wait upon
my l«rd of Warwick twice at his kMlgings :
Oncel fMind capt. Coote there, one of them
was in bed, and the other was dressing of him-
self; Ithoueht they were very gooA friends
that were so familiar, and I had ^;ood reason to
think so, because of that familianty : Both the
times that I was there, when I found them to*
Mtber, was within eight days before the aod-
dsnt happened.
£. of War. The next witness I shall call will
hs Mr. Disuey.
Aii. Gen. But before colonel Stanhope goes,
I desire to ssk him this question, whether he
ilid oerer hear or know of any unktudness be-
tween my lord of Warwick and capt. Coote ?
Col. Stanhnpe. No, indeed I did not; I al*
WSTS thought tliem to be very good friends.
Xr. H. S. Will your lordship go on to your
ACKt witness ?
£. of War. Yes, my lord, there he is, Mr.
Disney; 1 desire be may be asked what he
knows of any expressions of kindness and
friendship between me and capt. Coote.
Mr. Disney. About the time that capt. Coote
was to have his commission in the guards, my
lord of Warwick received a letter from him,
nrhcrein he desired him to lend him the 100
goioeas, according to his offer, for he had but
^00 by him ; and he said his father was unkind
to him, and he could have no money from
him, and he wouM be honest to him, and pay
H again as soon as lie could ; my lord sent for
his -steward, and onlered him to provide 100
guineas for capt. Coote while I was there; aud
sU the times that ever 1 saw them together,
which was very frequently, there was the
Ipreatest kindness between tbem that could be ;
and several times I have seen my lord of War-
wick pay capt. Coote's reckobiog for him, and
lent him money when he wanted money.
Att. Gen. 1 desire to ask yon. Sir, this ques-
tion, thougli you are not upon oath, yet you
are obliged to speak the truth in a court of jus-
tice as much as if you were upou oath : did
you not know or hear any thing of a misunder-
standing or quarrel about the time that this bu-
siness happened f
Mr. Duney, No, indeed : I was with tbem
toffether but the dayliefore, and frequently, and
J heard notliing of any unkindness between
them in my life, nor never knevr of any quarrel
between tliem, or any reason for it.
X. H. S. My lord, who is it yon call next ?
£. of War. Colonel Whiteman. (Who stood
Ibr?
£. of War. It is to the same effect, to ac-
S taint your lordships with what he knows of
e conversation between captain Coote and
. S. What do you call this gentleman
Col. Whiteman. My lord, I know my lord of
Warwick and capt. Coote were constant com •
panions together ; they dined together almost
every day for halfa year's time almost; and
as to this time, when this business had happen-
ed, I went to my lord of Warwick, beiaff sent
for by him, and found him at a private lodging,
where he expressed a ^reat deal of concern for
the death of iiis dear fnend Mr. Coote ; and h«
shewed me the wound he had received in his
hand, and he desired he might be private, and
he tokl me he believed people would make
worse of it than it was, because be did not ap-
pear; but he did but intend to keep himself
out of the way till he could be tried ; and I
took what care I could to get him a convenience
to go to France.
Att. Gen. Pray, what reason did he give for
his going away ?
Col. Whiteman. The king being at that time
out of England, and so the parliament not sit-
ting, he said he dkl not love con6nement, and
had rather be in France till the parliament
should meet, and he might have a fair triaf,
which he thought he should best have in this
House.
Att. Gen. But nray. Sir, consider, you are
bound to tell trutfi, and the whole truth, in
such a case as this : are you sure there was no
unkindness or quarrel l»etwern my lord War-
wick and capt. Coote about this time ?
Col. Whiteman. No ; I never knew of any
quarrel or unkindness between them in all my
life.
X. H. S. My lord, have you any more wit*
nesses?
Earl of War. I have a great many witnesses
more to the same puriiose, but I tfiink I need
not trouble your lordship with them ; only I
would call a person thut has been mentioned,
that is my steward.
L. H. S. What is his name ?
Earl of War. Edmund Hayinund. (Who
stood up.)
L. H. S. What questions do you ask him ?
Earl of War. I desire he may tell what be
knows of any friendship between capt. Coote
and me, and what particular instances he can
give of it.
Roffmund. My lord, 1 know that my lord
sent fur me, aud said capt, Cooie had occasimi
for 100 guineas to pay for a comiui&sioii in the
guards, which he had not money to make up ;
aud 1 know that they were constant compa-
nions every day, did eat together, and oOcn did
lie together, and I did provide the 100 guineas
for him ; and I always did ohservif that there
was a very great friendship between them.
Earl of War. My lortl, the next witness I
shall call will be Mr. French, who, 1 hope,
having been tried, and had his clergy allowed .
him, will be a good witness ; I should be sorry
to inteqiose any thing that- would be a hin-
drance to your lordships' giving judgment in
this case presently ; he is able to give your
lordships an account of the whole matter ; and
though 1 hope 1 have no nerd ofcalliiigiitm as
a witness, yet I humbly olTcr it to }our lord-
ships.
#00dJ
UWILLJAaM iil
Trial oftke Earl (^Wartmch
[Km
L. K. 5. What say tlie counsel on the olker
aide?
Earl of War, My lord, I (io not insist upon
«t ; I think I have. no need ef it.
X. if. <S*. Your lordship uiust judge for
joiurself, liow tar it is for your advantaga Ui
^ire tliat this matter sIhmiIJ be debated.
Earl of War. 1 do not desire to taVe up your
^onlships' time, thoug^b I am very wdl ad-
vised, that he is a good Mritness in law.
Earl of .R(N;il. I apprehended it the duty of
^e king^s counsel to make oiyectio.! against
«uy witness that should be produced by the
jpriaoner ; I am loih to give your lordships any
unnecessary trouble, yet I own, that I am noc
fiatisHed that a witness should be offered and
rejected., though the olijectiou be not made and
iu:gued, by my lord the prisoner at the bar : if
a witness be offered, and they think they have
an objection against him, if they do insist upoft
it, it will occasion a debate, jiud then we must
adjourn into the House of Lords.
X. i/. iS. Jt is not insisted upon by my loni,
as 1 apprehend. My lord of Warwick, have '
you any other witness you would have calkd ?
Earl of War, I desire to ask BIrs. Amy a
question or two. (Then she stood up.)
X. if. iS. What does your lordship ask her?
Earl of War, What she remembers passed
at her house alK)ot my sword, or any thing.
. Mrs. Amy. My lord, when I crane into the
room where my lord of Warwick and capt.
J'rench were, in our house, I siootl by capt.
French while his wounds was dressing, and I
saw my lord ol' VVarwicU's suord, and lookrd
'jpon ir, and iho i.dt and all the shell was i'nil
ot'ldoud, and it ran down tu the botlun) ul* llie
Mvord blade.
Kill ot' If '<.;•. I drsiio slift may br asked,
iiou- soon thai was after my romins^ in ?
-•Jrs. Amy.
my I"rd <*an;e m.
Earl of \Vm\ I desire, she may sj)cak uliat
sort of sw.'jjd it was at the hilt, whether it were
open or cle.sc ?
Mrs. Ar^\i, Indeed, I cannot sny ; hut the
hill was fuil of blood, the slicll of it, and it ran
ilowii to the bottom otilic liiiide.
I.. II, S. H.1%: M«ur lii;dslii;> done
cf)ually guilty with, them who wen an tb
other side, especially, I engaffiog jMrtaculiilj
with another of llm tlirec, that were of tW
other side : that question I desire my couanl
may argue, wlieUiqr I be equally guilty with
tliein that were on the otiier ade, and wli%
notwithstanding death happened in tbeoMi,
yet were found guilty onlj ot maoala^gbtcr? ■
L. Codolphin, My lords, it has been notd
by my noble lord at the bar, that bis couud
should be heard about Mr. French's being mlr
ness, whether he should be a witness or bo; 1
think it would be much for tlie clearing of tk|
fact one-way or other, if the rvidenoe of tte
witness could be heard ; but whether he op
be heard, or not, according to law, is a qotttiii
that must be debated aiuongst your lordships
after your lordships have heard the eouuiri m
both sides, and perhaps the opinion of Ifef
judges upon their arguments ; aqd thercfinc 1
think we must adjourn, to couskler whdbf
this matter shall lie argned or no.
L. H. S. What say you to this matter, 11^
Attorney ?
Ait. Oen, My lords, I should agree with dp
motion that is made, if there were any tUif
insisted upon by the prisoner ai the bar, tbH
would bear a questkm or argument ; birt M
lord of Warwick himscli' has waved iheoi^
jection, and so I -think there is no need itr uf
arpfument on our side.
L. Godoljihin, 1 would agree with thent-
tion that was matlc fur adjourning, inonkrlf
thl»atc; but I desire to be thus uuderitood,/
he thinks it for hi> advantage, that this uiuuii
hhonld be heard for him, which he kuoubUsil,
wlu titer it be or be npl ; then I do snp|Hi>e
yonr lm'dslii|)s will adjourn, ti» consider oi itii
\onr oun house amun<;*st >oU] selves^ ii will
into th(
I not be proper to enter into the debate here, oor
Ir. was a quarter olau hour after there neither, till you know w hat ohjectiuD tlie
counsel for the kini>- make a;>ainst this muo'i
heini;- an e\idenee'; and theretbre Mt? uDulil
Know, it is hi to be known, uhethrr lu^' lurd'B
v.aving', or not iusislii^^ upon this num's l»U-
mony, be {'ire auil AoJuiUary, and absiduie; tf
vWieiber it be onl^ in rcnpr-ut to the truiibttf it
may |)nl. the hou ie to for the debate.
/,. 11. S. My lord Warwick, bAiwe cf ml
Karl 01* M'urwii k. My Um\, I will oidy take j noble lords observe you iia\e desired Mr. ViiHtu
should be exaniinid, and that your counscinuj
be heard to thai point, wheilicr he be bv law •
witness, or not? Several of my lords fliink it
reasonable, counsel should be heard, vlu'lhcf
iic be a witness or not; or at lea.»t, tiuttJAt
<)uesiion slioidd be coni^idered amongst tlua^
selves, it" insisted upon; thercfoie ytur lord-
ship is to declare, whether you do insist upM
I it, or desire lo wave it.
none?, that tlie three ji^entb men that were on
ihc other side weie tried ai the Old l^aik y, ai;d '.
foiMul •;nilty only ot'mansbnuhler ; but now 1 '
hei'.i^ on bi"* side, and not h.ivin'^ any uKiiicc
to him, b'ji aiv\iiys a ^T'eiit deal ot' fiieni!:Jiip,
I submit it to 3 our lordsbip*;, whctbi-r 1 can be 1
thouj^'lil any v.»vys GTuilty ot bis deatli ; audi j
hnmt'Iy lie;;( } our lordsbips will hear my coun-
sel, ii' \ c u uKske any doubt of that,
L. ft. S. What *is it your lordship would Earl of War. I wholly sulmiit myself M
haveroni.^el bejid to? your lordships; but as I am adriseil by*F
Eurl (if II . /\/tc7:. To this case, my lord, \ counsel, I hope he is a good witnesaj, anill^
Whether ll:» ; .■• biinjj six pei*sons, three of a . a'uc my couni>el may he heard to that poiaL ■ .
hide, one is killed, and I brin^' cnL;:ai;ed oi» the j Jtt. Gen. My lords, 'u\ truth 1 ackuuwjtdp^
hi:le of bim ibul was killed, tbc tfbree on the I according to the method of law, the objceM^
other si«!e wave been tried for tbc dealli <»f that . ou;>ht to come of our siile ; for I tbink »efc»*«
man ; wht.ii.LT J, ^rho was of his side, he | very good rcu^u to oppose that gCMtlc1i#
^j
»3
J^T the Sturdcf of Richard Cootey f.^-^.-
a: D. 1C99.
i_100G
i«f a wilnpsii in litis case, even upon that j poiiil of laiT : lie has been convicted, in oiie
?«:tion wliicli my loril h:is made liiin'^cir,
m the consideration, that he has been luMnd
itj of manslaughter for the death of this
T person. It is true, upon his prayer, clerpcy
» nHovrchl liim, but the bnniing of the hand
sTe«spile<l, and he was not burnt in the Iruid,
I he is not paiiluned ; and hoiv far can he
ft witness in this cose, is the objection : if'u
n convictetl of felon}', that is within clergy,
lys his cIcrgA', and it is allowed him, hut fie
not bumol in the hand, nor pnnb)ncd, wc
jNvliend he is no witness; and that is the
ection we make against bis testimony to
ur lordsbips.
L- H. S, My lord of Warwick, you hear
lat is said by way of objection against this
id's bctnc a witness, miat say you to it ?
Earl of War, For matter of law, my lords,
am not capable of speaking to it, but 1 de-
re rov counsel may.
L, A. S. That which Mr. dttomcy proposes
p way of objection is matter of fact, and the
latter of law does not arise till the fact be set-
e4, which mnst fall within vour lordship's
m know lef Iff e, who produce liim as a wit-
en, and therefore you must answer to that
irt yourself.
Earl of W'lir. I desire to know of your lord-
iup*, if a man be convicted of felony that is
rinin clergy, auti prays his clergy, and it is
Apired him, Init the burning of the* hand is re-
fifed, and there is a warrant for his pardon ;
>Mier he cannot be a good witness : that his
lofry was allowed, and the burning ofliio
Mnd respited, I have the record here to s\\*w,
L IL S. My lords, my noble lord at tlie
IV insisting* upon a warrant for a pardon, I
ivt acquaint you with something that hnp-
med during your lordships' sitting here this
hy; since 1 came hither a privy sl'al was de-
"Wfd to me, in or»lcr to pass a pardon for t!io
xniing in the hand of 3Ir. Frcncii, for thf>
^itoslauffhter for which he was cuniicted ut
^ CNd-Bailey ; so fnr I can acquaint your
■iMips as to matter of fact.
Earl of War. My lord, I am ad» iic il by my
tinsel, that he is a good uiinrss uiihuutsi
>rrion, or Vtthout burning in the h:uul.
L. //. S. What sny you, i»ir. A tti. nicy, to
elaw? Now you understand what thii llirt
If V is.
Ait, Ceu, Yes, my lord ; and I do a[»i)rc-
nd, with sulimis^iioii to your lord, hip-s judg
n*spect, for the very ofl'en^ tor which the no-
ble lord, the prisoner at the bar, stands in-
dicted : Though not in the same degree a»
the indictment sets it' forth, vet it is for
tttc same fact. Upon this inuictment Mrl
French was indicted at the sessions at the Old
Kailey, and tlicre he was found guilty of man- ,
slaughter ; upon which he prayed the benefit of
his clergy, which was allowetl him, but he was
not burnt in the hand : thus stands the case ii»
fact. Now, my lords, the allowance of clergy
of .itself, does not discharge thu'paity from the
oirence, so far as to set him ' rectus in curia,*
and make him in all respects a persoh fit to
have the hcneHt and privileges of a * probus et
^ legalis homo,' till he has passed through those
methods of setting himself right in the eye of
the law, that the law hath prescribed ; and in
order to set this matter in its true light before
your lordships, it will be uecessary for me to
open to your lordships, as far as 1 can, the na-
tore of this benefit of clergy, and what advan-
tage did accrue to the party, by havin<r that
benefit allowed hiui, and likewise what benefit
he had by the act that enacted the burning in
the hand', which was the statute of the 4th of
11. 7. And by that act the burning in the hand
was to be of no more effect, but only to shew
that he had had his clergy allowed him ; and
that unless he were within oi*ders, he should
have it no mure than once, before that act of
parliament, a person might have had t!ie bene-
fit of clergy several times, but (hat act limits it
as to fiuie, (hat it shall l>e but once : and there-
fore, in onler to the having of it known, whe-
ther a man once had his clergy alloweil iiiui,
thai did not produce his orders, that net pro-
vides there .sh:ill be a mark set upon liiiij at the
time of the allowance of lliis clergy, as a token
that it uas allovved him, and he was never to
have it alluived afterwards, but even at iliat
tiisw; be was to br deliu-red over to the ordi-
iKiry to make his purgation ; but since tfiat act
se\ei-ul statutes have been made about this mat«
t'. r. 1 shall mention one that relates to >our
lo!d:!ii;^s,and tlr.it is the statute of Edward the
GL!j, wiiich iiidLid 4loes enact. That in case
V lif re a pet r is couyicted of felony vtiihin the
b( liill'. K-l' eU.T[.'y, he shall be discharged willi-
cMit i>- i:.'^ burnt in the hand; but then and thus
tlie law btood nil the statute of Hi KIIk. cap. 7,
by ubidi it is cuarted. That aArr the burning
in tli'j hand I'le pii«<oner shall be delivered to
eoty that a man convicted of felony, tliou^h i the ordinary, but he shall l>e discharged ; by
( intiys his clergy, and has it nliuucd him, | viitue of wfiich act, nfier binning in the haiut,
t IS not barnt in the hand, nor hu:s any pur- the prisoner hath ina«te full satisfaetion to the
n, can Iwno witness. luw, without thai soit of purgittinn which uas
L. H. S. That is the case upon which you hJmii letpiisitetu be made ; but till he be burnt
e to form your objections: here is a iiKiU ' in the hand, or has hi^ pardon, he is not to be
odiiceil as a witness, who has been c(»t:%lctid , discharged ; it may be, he may l»c bailed out
felony within the benefit of clergy, h:is by the judge, in onh.r to gel a pardon ; but still
afed bis clergy, has had it allowed, but has ' he remains in ttatii qnn^ as to his iN'ing a wit-
t been burnt in the hand, nor pardoned. : ness, or any thing ot that nature \ his erettil is
Ait, Gen, Then, my lords, with humble sub- ! trone till itbe restoied by the king*s pardon, oi
ianoQ, apon the matter of fact so .«tatcd, I . his undergoing the pnni*,hment that the law
■ielbtt objectiODy That be is'uu witness in i reipiircs ; and no man wmM say, that wlieie
ii.iraiuAif m.
« eoBfidiM of fchuy awlii-.-| tlM.pitf convicteil siiall be burnt ini
raiur ia the JmimI, or pwdon, thua wt the net ttoes apiMint, it does i
MeBM
*»^ ^ ... - '
CM M ft witMM ; he RMiiM jMt as
hewMMlblrt,tfa6Cop?igliottf—Miin>apQa liini,
wJUeh dinUedliini to be a «iUM«t« ebdthftt
M euboiit t» tear lordikiips •• the eftie of tbie
MMBi etpiaia jTlreeob-
iilL Oei^ Hjr lonb, if voor lotibhipft pkeee
JoflMreuMoae word ef toe MnMiiiie: eorett
CMoniM lew thece weold heoedifiedtv el ell,
ttftt a fmmm towncmi ef IWoej mbio the
bMetttefoleigjr,nB|^ "
€obM he moiwammi
•liil^ee that kite heia Matmiedbj Mr. It-
toniej, nnkoi thife he en aatmJ hpnhif fai the
l^Mid, or a pardoa ibr that buniiir ia the head ;
iarokeaiMlhepraleodcilttluil eaeeearated
.efleleBycaahaateitlcdjMawilBm. Ifaiy
Jeid of ITaniktidoes iaitaliVOQ hkefUbaw
aa natter ofv^ht, we, ibrthhhiiy, doiMirt
«ppa k, thai Ihere ii DO light at all & the CMe ;
Iftr FtaehiMMt hetahea to bo oae eenvictod
TM ^ihe EMd^WmmUlk.
Of moBjjf Ban doi wrhhwhi i
horalof Jh the haail, er)iai3oB|
eaphea
inrhnr, thaihe
1LH.8. Mj kadi, the Uag^coMwl have
aMed thevolMQtiaaiWhatiijreiurploiooreto
have done hi ttf
Barlef JRmrt. I wifpeoo, my lordi, thetit
wilt be aefowary to hoar what aoewer aqr Iwd
of .Warwick gmt to this olaeetieo.
In ITS. Is it your loidriapi* fdoasare, thaa,
thstthecooDselssngnedforiiiy lordWarwick
' he heard wbat they Hare to say to this matter f
Lords. Ay, ay, ay.
J Then sir Tliomas Powys came to the bar,
stood by the earl oT Warwick, sod spoke
thus.]
Sir T. Powii. May it please your lordships,
I am by the order of this honourable house as-
sigoed of couusel for tliis ooble lord at the bar.
Id point ofhiw ; and, my lords, as to the pr^nt
question that has been spoken to by the king's
counsel, I am a little surprised to hear it should
be wondered at, that my lord oC Warwick
ehould in^t upon it, thattbis gentleman should
be examined for bim as a witness, because,
with bumble submission to your lordships, I
think the authorities of law will make for the
opinion on the other side. Mr. Attorney Ge-
neral says true, The first statute that was made
for biurning in the hand, was that in 4 H. 7.
Before that time the beneifit of clergy, even for
murder, was used to be allowed upon the
prayer of the party, and he was thereupon de-
livered orer to the ordinary to make his purga-
tion ; and that not only once, bu( totia quoiies,
kt bim demand it as oflen as he would, and as
otlen as he offended it was allowed : This was
thought such a privilege as ought to be restrain-
ed ; that statute of the 4th of Hen. 7, Ukes no-
tice, that an ill use was made of it, end there-
fore does ordain, that it should be allowed no
more than onee, unless to persons within orders :
And as a means to know, whether it hsd been
haftwo allowed, or not, the act does direct, that
r tJiecaie ^ ;l ¥oc9 nut tmpoiJ
the party iis a iiunislimciit hr the ofli
00^ aaa work of distineliouH^ lUal if
eame m^iii htifbre the court, aui) be
vieted ol the like ofFerir^*, ihoM |)ra;
neflt of clergy, ibea upuo inspcctiim
bekOOWii, 1% k<^iU4>7 before he bailhefii
his clsi|fy f^r not i mid so &liK>d llifi i
_jMlt alteration as to ilie m&UDer nf de
,tho dkiiiuiil over 10 the ordinary ta i
fWUytiain^ wiili witlcli ihe ieiufi«riil h^
mamier of doing' tbercof, did nui inicft
and therein cotifiisted, witji re»;pf ct to t
ter^ I h e bi tie B l of clergy , A t i«nr&rila
itaiute of Eiiwartl the ^tb, ibe peers ^
em pled from lUe burning in the b»i
lUto comes Ibe act lUat we rely upon
is, that fit the l&th of Elm, tUst vstkm
tlieforiDer act i>t tbe 4tli ot H. 7» wLiicb
deted the burninj^ of tlte hand for the
aforesaid^ but left the party to be Mir*
lo llie on Unary to malic Lis [»nr^9kicx
was jbund lo'bo a ii)»ieer attended w
abuses, ai>d upon the tcfiirmniion th
to lie sbolishedf anil taken away, bfcao
only an outfvard ;ipiiea ranee aud uhew
Ration, and was of^en the ocCJii»i<jii ofTC
perjuries ; iberefore it is fakeo loiiJI
and by Ibiv act tW pa.rty shall hate tbi
ofekrgy witliout rtiiikiii^ purgikttoiit
as if he nad actually ma4e it. But« m
tlic^rc is siill \ci\ sonoethin^ thtt the
quires, which is, that he sboidd be iki
in the hand ; and if he be notberntiaU
or at least pardoned, he is not in that «
that the law calls for in such a case, tti
Rectui in Curia : If he be burnt bi ih
or pardoned by the kinff, they agree
other side, tliat he may ae a very ffoodi
My lords, that act of parliament o{«|0te
does impower the court that tries toe a
and before whom he is connctsd, not
burn biiu in the hand, pursuaet to tb
Hen. 7t but also to detam him in pria
yearalker; but yet I think that dodii
nify any thing one wa^ or other to reitB
or not restore nim to his credit ; Isr 1 d
bnminif in the hand, which is a aiiri
famy, was never intended as a meaas, a
than imprisonment for a year, of rtt
man to 1ms credit ; it was only to sbff
hii clergy once, and should nate it a
Tlie allowance of clergy by theatatula
operates as a pardon $ only, seith |ha
he shall not be deliTeiVd out of prwaal
is burnt in the hand, according to AM
Hen. 7. Nobody can say, that the j|
in prison for a year, which the i
though burnt m the band, w
ingof credit, hare operated 4
but that we insist ujion. is. Thatch
ofclergy sets bim right in csar
tion is abolished, and is Um aw
had undergone tbeoeremotiiilj
porgation. It ia thoaMiaii
beeo«(.|li
wod4p#S
loaaiMidl
Jm tke Jfiw* «t fa^
;hZ
c y .*-'.
A. Dw :f^v
I.'^M
if liiblHiftft-f'f'ni^ r'ci ?^'±.:^ •'••
tkjl W K t^ h2»* rii* sLOtt !•: :»rr:
imI fwiigitow li]>£ 2fenES iRiiof : L:>r
alloirtcoe %a neiii in is.» »r^
I htTe da»> le^W I2*e lift : u*: r»* :$
If. Tbe AflKb'^-SMf L?e x} »ci ^
ciBetittt is ve7 w*-- k»?rT itt-itc
f ibe law. IB Vbt iv€S^ rtvjr. « :n
liH of Biaa«4i ittif . &m: r« ?»'«T»i
t •»!' bfft drrfT ;' tie ;y*r« li '•it.:
We llwtf jtt^'^TDRt sieres. i^? lH
15 emerH a «m reeer%1 : lif lit:: i::
ine bronchi ic«:sit his. : cuDt t:-
Um. b<m fir be b*d baj Li* c^eTJ •
p tiatute ^ ibc 5d of Hea. r. a- V7-
Ue ooiwitbscus^is^ m cDe-nctk-z. if *
hftfe cot bad hii den^' : iiA -.3 ih 3 *
M atif^ud^e*). thai tbV ptrty bi":-^ '
is clergy, b» sb«oM ba^e lie wi*
iftheeoart bad «jriered e^ery thias
ally exeeoted, whicb ooi'b! thcrrapfto •
? : And sardy tb«r ii ciji be ao ques- ;
iher a man sbail be a witneaii^ or no.
bi«! his cier;^ allowed ? It is «n en- J
n reconl. Th^t tlie book was admhiis- -
irm, zaA that be read as a clerfc : for .
bas done as mnch as be can. prayed \
It of his dergy. and bail it allovtti, j
is entered upon record. The respiting ;
'ninir of the Itand till the kind's par- i
Gained, shall not, sure, pnt bim in a
MKtion tbaii be vouM have been, if he
kit J been burnt in the liand. y\\ lords,
\ my hand a book which is of very
■em, and that is. The Reports of my
' juttice Hobart, wherein be declares
n in this point, and for whose opinion
of our gown erer bath testified a very
eration and respect ; the case is that
snd Williams, wherein my lord Hob-
ipoken 80 fully to this matter, that I
light to pnt an end to the question :
the statute of £liz. appointing the
1 tlie hand without purgation, does
I a statute pardon to all intents and
and the party having now the be-
lis clergy allowed, is in all respects
ime cradition as if he had been
: that is the opinion that he holds
it that case : I need nut trouble your
with reading all the particular words
les, but only those which relate to the
f in question, immediately before your
He delivers his opinion, '* That
r S)>eak8 wonis of accusation, rcftect-
i man for any offence fnr which he was
ad conricted, and bad had his clergy
in action lies as if he had benn totally
from it ; it is not the burning in the
t the altowancc of clergy, that sets him
Hs ensdif id the eye of tho iavr. and he
XIII.
"•»• «•? .1" ;'f rsK 1^ 'tf"^ i* '-S i-.' ■ uNii. .
- P:»*»i^r :>f scir^rf « ■'. :.:\- :•*- ^ •
ts»f vcjbr vyT'^r-sftt^ •.- :>f *"s; -Tf • : : : t .%-^* i. :
rriXiT.* :<f «i;.i> nt" i.-sM a-yj*: » • :".-«;• :< r*
tr'.tc|-r" - kf a rr« ^n^-^ :>; r.>.r o;is:: : :. Se*
iir* lirf nK^f?: .-c :?»f scx:r:f, t" v^*. \ ^ ij»
»T -yzra. ; :!•• t^^j as*\ T4.-;iX! :;.i* ^;•.r^■ ^i; :
':«r :^» ST-r.^r- s'^'«: "•■'''*'* *??***• "•* * "^ ran ••i
ii« T>^tDer:t.~i>wc it? z:-jc!s ii ii i.^t- r*j»::::v cf
7'-: 3cf?*«L t--: TvC.-cz s s^ark r»^ r. .-':.!> si.aTha
rstr ^Te t** c^-^ry ^'.''S cree." Taoe* an?
Xi^'*ir\ w^ri»:r. ;:..* rift*: #0 that t^'eftatwie
«" E -J i?::b axv.sh ^-jrvaii-xi. mix pies the
pany iX ibe Sf::-^! ibccWf. as if he !:?..! sr^n^e
ir"*.*j^b it- aai iirRead cf dili^frirc tbr p'ly
to r»e cr-:r.a-^- 10 m:-ke h:< rurgfai.-^n. i: sa\'«
be »bil: t* c/-ferfd o j: of" ;.ri>on : but lesfit
2ii^L: seea to repeal the *:a;ute v^ Htn. 7. as
?*> S'..rr.irj: :n ibc ban.?. ;; a.*«iss " Heipsr burnt
\z :he ba" ^. arertr»*irc l*^ the statute in that W-
ha-t prt>fii«>d :* \\\ me statute of lien. 7, he
was drst to bt bunj in the hand. aiiJ then de-
!Hf :>ed to the onl!nar\- to make his purt;aiion ;
but by ;be statute of tiiz. lie is tirst panlonod
bk crime by bein^ allowed the benefit of his
r*.er^. witllout making liis punration. and af-
terwarJs to l*e burnt in the hand before he be
ilel'.vered out of prison ; so that the burning iu
the hiiiid is on y a condition ^recedtni to hi<s
getting out of prison, not to his being restored
to his credit : the king may pardon thebumiii*^
in the han:l undoubtedly,' and he has gone a
great way in tliis case, fur he hath given a par-
don us far as the priry seal, and that is suHi-
cient to shew his gracious intention of pardon-
ing it throughout ; and if there 1)o neeil, wo
hope it may pass vet forward. What we insist
on, is not only tbe opinion of iny lord chief
jnsiice Hobart, but be is followed therein by
the opinion of a man of very great authority,
one no less eminent than he in his profession,
and that is my lord chief justice Hale, in a book
of his that islntituled, his Pleas of the Crown,
which is but an abridgment of what heintendctl
uimn that subject under the title of clergy :
when he comes to treat of the consequences of
the allowance of clergy, and what tlie several
effects of clergy allowed shall be, he says, it,
gives him a capacity to purchase goods, and
retain the profits of his lands, and restores biui
to his credit, according to the rase I have men-
tioned before in Hobart, of Searle and Wil-
liams ; for that case is iiarticularly in that hook
mentioned and rcfprrcu to : therefore I hupu
your lortlships wilt make no difficulty of hear-
ing this witness ; for wo think the luiving his
clei^y allowed him, is that which restort's him
to his credit. If tlify have any other objictioim
against him, I hope we shair hour it fnmi iliv
* He<i IInwkiDH'!> lM'-a« uf the Crown, b. S,
c.33,8. li;'J.
ax
1011]
II WILUAM HI.
Ttiil o/'tlte Eart qf Witrmck,
»
I
King's counsel ; bat if tUU Up sttjrnl nj>r>n in |
poini of I*wii5 nn objec»ii>n» ifi;a ihouttU ckrg^y i
was allovretl, tic na^ uot hni nt in the liatiit, nor |
pjtnlooetl ; I wuaW hut f ohsservet* tr*>o«r lonU
Uii|i<i, lliAl my lord lii^:ti flvwarU ha>j lolil yog
tl in Ku fiir gtioe towanl^ tlie piLftioi}, that ibe
\Xn\^ has Uicwn his inirutioti to pardon by ill*;
priVy-«ciil \ ttiui ue h<^()e youv tonUbips will
ii0t wx tbL$ iiiible ioiil »t ilie bar suflVr auy [>ie*
judicc by lite not poj Itctini^ of ibc (inrdon by
■Cttial pussin|( ul titii t;ieat seJ^.
/,. il, 5. Mr. Ailorriey Gcnei-al, wbat wy
yoo to the maUers which* haw e Ke*ii urged ?
ylif. Gen. M V Iwrd, we havi* statc<l our ob-
jection ; we think there is noil»ng given as au
aa&wer to it, and uesuUuiilit to your tord<^
ship's jod^ineiit*
5Wq. ot* Halifax, My lorih, I desire that
the qiit*$tioo ibut i^ ta be decided before your
|<»rds)uf ft, iniiy be settled truly, what it is.
X. ^, 5. It' tht^ie lie »ix it) company,
wad one of ibcm is kilted, the other 6re
are aflctwards indirt«fd, and three are Iried,
tfml fouQfi guilty of ninns)au§^iiter, and u|)on
their prayers have their clcrgjy allowed, and
tikc biimm«r iti the band i$ respited, hut not
pardoned, \Vfictbi'r any of the three can be a
n ilTiess upon the trial o* either of the other two ?
Sir T. Ptmjfs. My lords, with snlwuissiou,
tliou^fti be were coViiicted of the felon v, yet
unon prayer of bi& clerg> , that being allowfid
bfiii, llial restores him to all the capacitiefr, we
•ay, that be had before the cooiicttou, and
particularly to his end it ; and for tliat we 6ub
mit oui^eUes to your lord* hi p*sjudgni tint.
Mar*^. ot Halijax. 1 suppose your lordships
wilt have the opinion of tue judges upon this
point I aod that must be in the preseuce of tlie
prisoner.
L, IL S, h must ccrtainlv be in the pi^sence
of the prisoner, if you ai»K the judges opi<
nions.*
r Marq. of Hali/m, But in these cftses, my
lordti, it is usualtn hear the king's counsel to
make a reply : I desire to bear what they
woutd ^ay to what has been offered by the
counsel for the noble lord ibe prisoner at the
bar.
Serj, Wright. My lords, I did apprehend
that the very statin]! of the objection would
. hare set ibis uiatter in its true light: For in
the first place, it is a^j^rced on all hands, that
thU Mr. rrf?ncb, that is desired to U? a witness,
di>e:g inland convicted of felony ; aqd by the law
•jf England, while that conviction renmins upon
hiui, liU be lie either purged or pardoned, be
cuunot be a witness : by the convictiott bis
cretlitis lost; and till be t»e rciitoted to bis fiett
condition, he sUnds not so clear iu the eye ol'
the taw tljat be cun be an evidence. The
counsel for the prisouer have objectsd, that if
Ite either be parduticd, or clergy ulltmeil, he is
put in T be saiue cuudiUon as if he bad been ac-
quitted*
* 8ee the Case oi' lord Cora wall is, vol« 7, |^*
liO,ind Ibe Note.
My lordii. In nalmttti'
credtL ; and I iij< Lkiaislb»«
a nee of the bene lit of ckrgy, j&nd bununy a
the bund upon it. mnoitnU* in Uw in «
or is < '■ I '■■'■'
tlief.i
tual I'
Uenet li
thftlii.^>...
actual bun
LitrntiiiLf in ■,i,_ !j__:J, .,l:..
\n law, such *
ii condition as it
Vour i«>rdshiji» huve beard ^hal was i
bis grace my lord high stel^ a-tl, Thia i
burning m the band, t' m^
to proceed so tar a^^ t« > r-al i
parilou of i 1 1 '
lordiihips ^ -
sisted on to im-
other &ide, Thru
under the great >...,, v.1 ..i,j
ts no actual parduu ; nor i^ the bare, alia
of cl^gy, uiihoiil ijiiiniii'f in tllQ IliSOd
faleottOii I mustb^i;
That At tiu ; rsoQs tb
convicted of tekiuy, wctt; iii*t restore4
crecht merely by ajiowiii^ the l»enrfii v(
to 1 hem; there was souii
done to regain cfe<lii ; xh^ , 41
undergo an
was comn i
man was i : ^ na%j itptio
ftrayer of < ^ to lisve iJ i
owed to hhii, f .*^ i*Mtiu rcJul u i
bis life was saveiK He was iiot dc«
the felony, and therefore was deUvei«il
tbe ordinary to be kept in privnu umil 1
by a sortoltrial beibre tbe ordinary,
innocence appear* and purged biiitself 4
fact ch-irged upon bim ; and if be
tnake bis pui y;attoD, Ike was ta U9 [
iu prison ^ and tiotwithstaudioir the
of clergy, and delivery over t** lii
yet MAS not the ciedit restored,
capacities ; ho was nut a \eg^i wim
he h;id purged hitusetf of the of
the dealing lliemseives of f^^ ^*n1t, 1
stored such persons to i! u
creili^iiiot the bare alh»«» uy;
critninais were deli\ lijiia
neratly ; thosamighr 1*^^^:^
O tilers were speciaJly delivered, or dcB
with aspcciol charge to tbe ordinary ,
admit ibem to purgation, ' por
*raciea*la:' These btter ver be
f^ored to credit, eacoe|it by tbe king's
for the liberty of purgatiQCH which wag.,
means of regaiuing their credilt wwsj
from tbein ; £cir giillt ocoasioneAthifjc T
crcilit ; taking away that gtull doth
ciuuntially restore credit again i and t '
nt of clergy was to be allowed aa otVen
oiat) bad occasion Jbr it.
Thus tbe utatler of bcii4?ftt of clcrjfy i
comiuou la^v in rcs[>' mtdt
tog of credit, tdl tbe > Ui . : ' m ioivn/,.
far the Murder ofJlkJiard CooUt esq,
died OD the other siJe by itr Tbomfts
A. a 1699-
[!dI4
i^ys; by which stAliite |Kirgiitmn h abso-
ply taken away anr] set asiile : tijid I he jiarty
bg burni in the band^ accsordin^ to (he sta-
^^i^rte of 4 H. 7, is ft[ipoiiited by Ihrs st&lute, 18
EUs. tp be diicharged» and n<»t to be dellver^t
owf la the ordin&ry, an ivm before that time
^unetl. The deUvenu|^ ov«r to the orditiary, wa^
in onler lo pnrgation, and that by the last sta-
tute is i|uite tdceii awjty^ and tb'e \^ny is lo
Lave Ihe latne benett by the ha?in^ the heiietlt
of bui clergy and buruing in the bund, as if he
had made nis jmr^ation ; he sliall be dis-
chained : it is not his reailin^ as a cterk, aod
that firouounccd by the oiditiary» that gives
liim ttie benelit of a discharge, as if he hati
bteu purged of the crime ; but there mast be
4ti« burning in the hand, that is the very
terms of the statute upon wbicb he is to be dis-
^^l«fg«^t ; ibai must actually be done before lie
can be put into the same condition that he was in
MiOre the conviction, and consequently make
liini capable «f being a witness. As for the
■Me of Se&rle and WtiUams, that was cited by
^PTbonias Powys, iJwt case doth not oppose
V^this mailer ; there it was not nee<lfni to hum
ibe person convicted ; he was a cterk in boly
<ir<iers, and by law exempt from burning in tlie
hind : so it wus not needful to burn him, the
ctatnte of 18 Khz. not re<|uiring any person to
be burned iu the band that were not so liable
liefore then. The most that is said in tlmt case
hf the chief justice Hobart is^ that in case
wlicretbe baud ought to b« burnt, it is not es-
Mntm) ; Itut tUe party may have ibe benefit of
|||€ stttule, i, e. be 'dinchargt-d i^itbout burn-
ing, ftod ttiekJiig may ftardoji ilie burniug ; aod
«iO doubt if tJie king pardons tlie buruiiig, it is
.m» gvod and 4fi)ectiJii| as if the tiand had been
m^aally burnt The kin^ uii^ht piirdon the
ivIioJe, and consequently any [>an ; the pardon
^f llie pnnisbment supplies the elfect ot it; no
Jioaiitiob but a [mrdun may supply the want of
iKtmlng in the band. Chief justice ilales in
4m book of Pleas of the Crown, ful. S40,
l4i I bave here, saysexfiresslVi that burn-
: in t tie baud is now, since tGe statute 13
llix. the consequent upon the allowance of
clergVf which bath this ejfect : First, It eiia-
bkn the judges to dfliver him* Secondly, It
restores biui to former cajiacities. Tbirilly,
'^lre(ttores him to his credit, and so it puts hiiu
|the same conilitiLin as if he \f ere acquitted.
yii that hatb this ettect ? The allowame
and burning in the hand : There is
a delivery of the eriminal till all
Ik dune which is required by law : The law
i^uires that the party be burnt in the hand, or
ttiat the king do pardou the burning in the
band, before the party be disctmrged; and,
ivith bumble Bubmimiou, it was ne? er yet pre-
tendecl, thai any person could bave the full ad*
Vttntage of tbt'benetit of clergy, since the sta-
iQt»t>f 4 H. T, till he was burnt in the band, or
tbe btfrning in the band was ^mrdoned. Now,
my l«rds, to apply ibis to the casein question ;
ilisoa ^1 bands admitted, That Mr. Fre&ch
wfts e<mvictel of felony and rnanslaughter, and
is neither burnt in tfie tmnd, nor pnrdoned ;
hut He has prayed the benefit *>t the clergj' ;
and has ha«l the book given to him, to try if
he can read ^ and he certifieil he can read ; tbiv *
is all I hat ts done, I think it cannot be pfe-
tended he ought to be dtHcliarged until he is
burned in the hand, or that burning pardoned,
as the act requires ; and if the reading as ft
clerk without burning in the hand, or pardon
o*'ir,be not sufficient in hiw to entitle him lob^
discharged, why should it be sutticitnt to re*
store his < rt'dit .* Tlie wbok' together works the
disL'bar^ and restorer the p.iriy In the ease
of Burrou^tisand Holcrofi that lias been cited,
til ere a man wits convicted of manslangbler,
and pra^'^^d his cleri^y ; the court did not aU
bw bis clergy, but did ad*ise upon it- ThiA
was held sufecient to bar an appeal ; for if
clergy had been allowed it bad clearly lieen a
go(Kl bar; and the act of the court in advising
ujHjn tlie prayer, and not allo^vtngf clergy where
it ought to be^ shall not prejudice the party
convicted, hut he shall bt' in the same state as if -|
the eler*/y tiad been uctiially allowed ; but that
has no likeness to the case now before your
lordships; for here it is not pretended thai
iVlr. French ever desired to be burnt in the
band, but that was respited in favour to liim,
which was done with intention, it seems, lo gel
the king's pardou for the burning of the hand,
which is not yet obtained ; and ronsequeully
I take it be is*not entitled to that benelil which
the law would give him, if be was eitlier par*
duned or burned in the hand ; be is not fully
discharged of the conviction, and therefore I
thttik he ought not to be admitted as a witness,
X. //. S, What is the i-esululion your lord-
shijis please to take u|H>n this matter? Is it
your lordships^ pleasure to liave the opinion of
my lords the Judges, who are here prcsetil,
upon this point ?
Lords, Ay, ay, by all tneans bave the
judges oninions.
L. C.J* Trcbt/, Two things have been men-
tioned at the bar, which, I ibink, ought to be
laid out of the question.
1 . The consideration of a peer, with respect
to burning in the hand.
J suppose it is not (1 am sure it ought not to
be) insmuated, that if any of your lordships*
degree should have the niisforlune to fall intci
tht: like condition as the gentleman now pro-
duced, vv£, to be once convict of a clergyable
felony, there couki be any doubt of receiving
Kuch peer as a witness, without his havisg
been burnt in the hand. Certainly there could
not ; for the statute of 1 £. 6, exempts the
peers from such penalty, and virtually repeal*
the statute of 4 il. 7, as to so much. And the
statute of 18 Eliz. requires burning in the hand
only, according to the statute m ttuit behalf
(helure) pr*>vided. And there being no statute
ilien or now in force, to subject |M.*ers to such
brand ; they are, in such cai*e, ujKin the al*
lowing the benefit of the suid ttatute uf £. 6^
which i» as much ai clei^y without reading oc
Tnd ofi&e £ffr/ rf fTnwc^
I
I
I
barnmg' frfeU from discrrtltt Mid otber penaU
Iks uf the fdony^ us ntuoli ns CkMiiiDOtifi mte b^'
Jtaiiiig clergy loroially alJawed, ajid being
barot.
Q, lUre Laid been menliiio of a |»ardoa of
tlie buroiDif this geolietum in tbe b%od ; and,
it M^Ti'^ v^eding bsth been so far is to
fAM t^ edl, ] dfi not que«tJon tl&e
luji^'« |H(iu>>ijiij]u; of the iniiiiiDf^^s beiog M et-
jiertv
iindere:t>ici^ it. But^ I
\ (thtiug)i great f»repam-
^»^ manual, tbe signet,
t warrants in such
iectuul as the
tl.p „ ■ ^. ^
and coiiritcrmandabki. But it is tbe great flea]
thai speaks the king^^s last and irrevocable in-
tent, ttud passetU the pardon (or other like
tiling) to be granted. And that bath not been
abtamed here^
Now the question ja cleared, 1 take it to be
tVi * * ' i her this coiumoncr, bein^ conficted
(>' (id having hiM clerjify aUow«d, hut
b».-.,^ u4i.itMiii und unpardoucd) sbail be re-
ceived and allowed to lie a witncsi?
I ur«» ii» rifniilnti \u^ 'HlghtnOt.
For lity or cretlit he might
per»otii liv Wiu'j: and remaiutng
a felon con Vict » reticle i n&in the eye
af the law. Upon iht^ , he lort^ by
the intendment of law, that credit wbicb ifine-
ceisary to a witness ; and is not realored to it
bv tbe bare albwiti^ of clergy ; hut is in the
state as a feton convict wuutd have been, before
CJci \ called) benefit of
clergy, i-^ uu -un-if-nipMnrr^e, whereby acierk
ctidrged with ffkioy waii disnikiaed from l)ie
tem|K>ral jn^'i^e, and delivered in custody to hit
ordinnri, bctore whom he was to ptfrge him-
iw Ifl if fit' could, of iht- otlVnce ; and if he tttjl«l
ill i;toii» lie was to rtrmaio in thegnli-
I uieiiii i^c Derally % and I think it not profier
to thM« occa^iion, to discourse of the »(>ecial casea
wUt^rcio lilt delivery to the ordinary wan mktfmt
Thi- took its root origioolly from a
cooKiii - pope, exempting the persona
♦f iht ciiii^v iix)m the secular jurimJictioii.
This thif cuiionluw h ftill in. But that law
VAX iMit ii.i.tj.in.LU ic/d.;i..i I'f ve in tln^^bod.
A lered, and ol-
1^ :law.
itic«?: The ciftoon-law gtvea the
|H ly to men in holy orders: ouriaw,
m ittvoof lu li :.iMi» ■_'» and tbe desire of the
Kfi^rlieih his»h''[ ,. rvu uded it to lay* clerks,^ as
an olil statuie calk them, i. e. any layman,
thi\t, hy tt^'tUKtrt iifliis ntiihtv to read, waa'(ottier
larouiir I in a posaihihty of
Uog liio other side; that
Inw *»oui:i iH I Mnttr Mie clerj^^V ^^ he trini l»-
|i>re fecular judges i but otirs 1iaih, fur levetml
iMindreit } ear», subjected them to aucb trial.
ka
* As to Benefit of Clergy, iee in this C>>1-
lection the Case of Carenngh and others, vol.
1^1 ji.^Cr \ and the Casta ihere relierrod to*
But tbecomtiMui law was«««ri
That wbao m t»aa mmm cobiicIpI iC I
though U the aUMto^tC^liifigT* bklrfa.1
and Mood wem^iviad. p^ Um fiuDnebmlMi ]
him titkdtr diiersMHtenvoi i
abooltiie, oteps iWie
Heforfbtedyikibi
be had at tbe tioia of |
not to be reHoreil by i
He also ibrttiliri mti ^m, l/Ufl
being to oootittoe a |iihmiM, 1^
of piirobaatiig iinra f^aodb^ ^r cbl
taking and retaining tise kmo^tm i
bin freehold land lo bit owa wm^ 5. His cfif^l
fto as not to be a «rtti»eaa» Jtifor, doe, li
tbese three ^lenahitt be remniBMl liliiti
gatioo \ bat by that ^kmj
soon ■■ be had made b& ^i0fnljM», bn iMii
atored to bis liberty, capao^Bi, aod etwkL
Purgation was Jba«oMvieL*a i
of the eritne, by hii«i«BC«tbtMi^tbeMfll
eerdiet of an inf|ncst af ti»el*e tibiibi (an i
imrgators). The pratmiillny w«i biCwi *l
ordinary . And, for the ifliBBV of it, nM baikl.
speak of their making proclansai
to come in aznin^t him pnrgalioD, aapd of I
enauiriog '^-^ oonfi
aodofuilu' : lu^. In all
otber atatotaa say, there were
But tt it eoitatn, that, upon bta ic
onlinary pronounced him inoficcftt,
solved from infamy. And ihereupan
disohargeil troro the imprtSfOnm^it, *
ties, and discredit incident to the Mmf,
The etatnte4ll.7, bvioga in »
appointing that efery fiorson convicatof I
should hemarke^t io ihi> hand by tbefasAvi.
open court, beto \\A bo Mivefod laii
ordinary. And < ^ i ftiDly tbmt tbey i
taste oroorporal pimiafaioent { but, prii
to nutity that tbey bnd bad tbetr eteg^J
tlfte Bamo flMole, taking notice lUati
emboldeoed tn eommit miind«*r« f«pe^
and otborltAofiK
fitofelefgyfof
SOD, wbo wan once oumitini to
abottldf
unlc
letters of his ordcnt, or a wndJJtiiitg'oft
For this Act, Perkrn Watbot^.bi bial
ration agaiiist 11. 7 J
' ble breaker of the libertiiB ami fn
• holy church.'
Then oomes tlie statute la ElioE. «. f « i
for to much as concerns tliia f}iiMlion« 1 \
to reJid. It is in these words, ** Portbe Vt^4
m^ of sundry pcijurios and oibor aboaat tel
about the puVgatioo of clerks ooofriei
to the ordinaries^ be it anacteil, Ibaf i
son which aball ba admitted and
have the beneit or privde^ ^' \m dl
shall not thereu^ion be deltvered la Uh <
nary, as bath hem aocnatomed, btit i
clergy albwid, and bumfAg m tbo*
eordtng to the utaiuta in that bObalC ^
[oMsaning that of 4 Uen. 7], Miall lonbvikb j
ealiu^ aad deUf ered twt oi'_
1 erir have it n^n iirii ibllawi
I he were withtD oi^lm. 0h1 pi
» of his ordent, or a vmmkm%m \
9017]
jiMlioes before whom iucb clergy
^||Mtt|«i» Ui«t clause uotwUb^tatiilifig."
^^^Bblb«re follows a pruvi:si> \kp Ibia eiTect:
Winded tiefertheltfSKj anil be it eaactetJ, that
the juftices before wboui ftny such allu^ynnce
of clergry sball be hnd, may for the furlbcr cor-
jTVCtion of such pcreont, detain ainl keep them
I prison tor siicli coiivenieui litne as the same
Aices in tbeir tli«crriJon8 sball lb ink con?e-
» 90 aa the same do not exceed one year 'a
iienment/*
Tbisatatute refers to that of H. 7, aod fol-
L the order ol^ it ; as that appointed tbal the
cooYict should be burnt betore be sbouJd be de^
I to the ordinary to bave Ibe be»efa of
,m tilts of 18 Elix. appoints that be
•kould be burnt before be shall be diacbar^
by the jiwticn, and hate Ibe benefit thcf^by
iatended (instead of purgation^.
The onjticil for the nobl« lord at the bar aay^
l^t the nliowance of clergy by tirtue ot this
tfreclh this man, and make<i bim red at in
ft ; ai if he had made bis purgation : aod
by this statute be k Gr»l purduned his
HilBe^ by being allowed the beoelit of derg^y,
', makia^ bis purgation ; atni afterwardi
Dt in we band before be be ddirervd
pnson ; and %%* I lit; btirniog is a oondltioo
Mknt Vt his K'^enjiig' «ut of prison, not to
I being restored to bis credit.
But 1 am lo a^k for any ground for this
i ill this itatutc. It doth not ri^uire cler-
alkrtved, dot give any new yirtue or
I to it, i^hen allowed. It supposeth
I a tlitui; to be by virtue of the common
but ibere it leaves itn, if there be t»oibin|f
* done. It is oni^ clause consisting of two
i; i. Negatire; be that is allowed bin
jry, shall not be delif ered to the ordinary*
d. AlSlirinative -, btit »ticr that, and buruin^ in
llw handf shall be delivered by tlv- ■ — ♦v^
^low, if it bad ^loppefl at the ti Urid
ao far from pardoning or '<*^
oonvici, that it bad put all
1 thai those %irere who wen. i ^
f fix. to be per|ietunlly impriaoactli and ui-
Indeed^ it had not b^n reasonable to
tslce away such a prtvitege from the ftubjects,
itiih^»ut some recompence ; and ihcff (ore ii
4jd not stop thci'e^ but proceed.s to the ^d p.irt,
ind {Krovides that those ivho before Mere deli-
ftred to, and by the ordinary, shall now b«.' tie
liTcred by the justices. But tviihaU it dedaics
IflMiif and upun what tcrms^ viz. Alter clergy
idloweilt and burning in the hand. And Ibis is
• Mktiafactiou to be K4veo to the bw, before they
•Hall hate the henelit ot it.
I ugrMf if this convict bsd made that salis-
fbciicHi to the 1aw<, he mit^bt have l>eeti a uit-
IMW ; for ill that case, he would hiive been
freoil from his di«credit by virtue ot the lu^t
ilorAi of tha said clause. It is true, the woid»
^■t«tily, * Hhnll fcirthwith lie enlarged and de-
^Hrr^ aut of prison by the ji«htice«i,* which
uhrarlly import nothing but re^torin^ bis- liber-
ty. But under ibis prime instance, are im-
|4»ed aud iu tended all other partictikri wbtch
Jiff ihe Murder of Richard Caote^ esq. A* D. 1699. [10 IS
shall be jit convjot mi^ht be dtschart^ed of by meant of |
purgation. It was never the intent of tl^e sta^
lute merely to set him at lari^ef and leave hifll
Q felou convict : but when it is said deb?«r«d^
it is meant deUrered free, freed from all ioci-
dcDt further penalties, as he mi|;ht have been if [
delivered upon purgation. This is a reasonable
construction; ti» a mau that observet the op«
poaiti'in in the words, the aente will appear t<l
oe as if the law* makers had said, that inaCeiid.
of being discharg^ed * a culpa et poina' by tM '
ordinary upon a tedious proceed in nr to pur|^*»«,
tiou, he shall now be so dtjcharf^etlby the jus>
tices forthwith.
And this also ii necessary to vindicate th«
justice of this law ; tor, smoe it takes from
him the means be had of ref^ining his credit;
it is but just it should restore to him by thil^
wav» ■ f
ft is objecterl, that it may as well be sartf
that he shall not be restoned 10 cretlit till fao
have su tiered imprison men t, not cxceediug m
year, ns that he shall not be restored till burnt.
But that receives an easy answer ; for, if ii
were so, it would not avail this pertoo. But I
lake it to t>e otiterwise. A convict is dischar^^
ed from imprisonment and all other penalties in* ^
cideut to the conviction, tbrthwith opim ibe* ,
burning in the hand i but if there be a commit.'
ment made by virtue of the proviso, it is a eo{*
lateral ond a new thing, and the ptrty is not cheaf ^
in prison by virtue of his conviction, but by tr
fresh express order of the jud(^, made upod
the heiuousness of the circumstances ap^tear
trig OQ the evidence. They may, and genenP
ly do, tbrbettrto commit sit all : and when they
do, it may be for a month or two, at their dis-
cretion. The proviso callis it a further correc-*
tion, *
As to the manner in which this ttntute work*
this ffiil discharge, it hath been disputed, whc-^]
ther il he by supply of purgation, or rather by
;« lifxl of statute- pa nlnn. But, 1 think, Ihafl
tee of the statute the party is purg-eil Qiid
I of the felony, and all penalties iuotdenf
U> u, ill natui-e of a pardon- ^
In what raanner soever the ttatnte works it^
it i^ mauilest tliat it doth it not but upon a oon<*' \
dition precedent, vii. Alter clerg-y allowefl, and'
burLiitt|j^ iti the bond. Now, this person hath bNl
cler^ry allowed, but is not burnt in the hand,
i ' iiy pardon for it) and therefore is tiof
I to the beiiefit of this statute. My
Lmi > uuti^el say he i^, because he hath bi# '
cicrgfy allowed. " But iluit is claimiug the ad*
vantage upon the performing of one pnrt of fl
joint condition, which oiijrht not to be had hot i
u]K>n perforin J n^ bulb. They mit^ht as wel^
have |ireteuded to it before the |jertbrmance of 1
either ; the statute says, after lioih clergy antf |
burning. They suy alt>o, that this lutnung i# |
no pan of ihe judgment, as hath been held in* I
the r4ue of an ap|>eal. tie it so : but, 1 my, iff {
IS a part of the cnnditiou in this statute.
There is no case in our books aj^aiuit ibit *
opiniun. (But, on the contrary, Ihere are aa-' '
tfauritiea tor it ) Uolcrofl*t av»e is in notoft
lOlDJ
11 WILLIAM III.
Trial ffthe FmH tif Wa
ibl€ to liiis cast" ; as wfti tnil} nbscnpd
[kiTtlti* kin*r'« M^ijeiint. Ti>e ojiinion *iS my \\\f\\
I i". , 'u^u!er«fl,cout)rQisUuh. I have
bj^n^wcd live IkmiIc from the gtmllfintiti at ttic
|# com )e to be burnt iti the Unml, he ia
ottii:. ml restorod wiibouttt; because
Mie staUjlc hays, afttt- iHiwing: biit from
I ilicnccforlh theWtwte frees ium Irani all fur*
bcr juLDishrneut, lUil, he ^aiUit that where
|fte i« I'tit liable to buntin^f he shalt bare the
Btne beiietii immediaidy upmi the afiuwunce
[ufderg^y only, 8<Mt iv*s in llie case before
'bitn ; which itaa that ot u derk in orders :
|^r« 8earle wafla^slergymau^ parson of Heydoo
"Seritian^ in Eit»eK, ami e(>u?icted oi' iban-
llanj^iiler, 80 it is, be says, in case where the
Ifciniq;- pardons the buroiiig. And ibe last words
the caite dearly shew bis meatiing', riz.
rhere the Ktututt fiays« niUr buruin^, it im-
oris where bitruing^ «ug:bt to be» \c.
To me the law is e^i^ieut^ A peer afaaU bate
bia benefit^ witbf^ut either dergy or burning.
I clerk in others, upon dergy alone, without
urtiing*. A lay*clerk» uat without both.
K% 1 remctnber, there halb been but one au-
l^ority more nientiuued, aud that is ot tny lt»rd
rhiet jiLstice Hale, in itis Summary of the
Pleas* ot' tiie Crown \ I Itave sfOt hither that
.1 ..'. J To my uudeisiauding-, be pin inly
chuiei the snme opinion, and cites the before*
nenlioiied caae of 8earle tur prooi oHt. His
Fiords (&o far as they relate to this matter) are
"leae:
What the efieet of der^y allowed ?
Ju ancient time the coni^ueat was dtli«'ery
tlie ordinary, either to tnuke pur^atioii» or
l^^s^M^r purgatione^ atitlie ca»e required.
Hut by Stat. 18 Eliz. c. 7- Now otily burut
I the hand, which hath ttiese eHecta,
1. It enables the judge io ddiver him out of
Ifriflon.
2. ll^vea him a capacity to purchase goods,
nd retain the pfotits ot hi» lauds. Fuxley's
pCase, 5th reftort.
3. It restores bity to his credit Hob.
pfiearleV Case.
The word [which] used here (whatever else
[it do« or do not reler to) doth certainly refer to
Ibe itest antecedent, that is, burning in the
land; and the two boctks which thts most
I learned judge cites, arc tuU uuiborilies thai it Itt
klliia burning ubidi euHbli^tt the con it to deliver
\htm^ and that thiit delivering which is then due
him is, by gooti construction, in lieu of a
OD, w hich reiioret him lo hit «aid ctipa-
^tnd rredtt.
V
I ,j aT*r«
DHMI'I
'
In-
th
A
npon
t de-
1
at It
1
H 1'.
ii-Sal
opinions St hiiv<s ^o ttkm up yoar
time with arpfumeuls iif muf lefl|flli(4
matter \\m betin, 1 Unitic, autficievtljr T '
L, Chir/Banm, (Hir Bifwufil IVa
lordK, I atii ftt'ilie same optninti.
J usi . Nrvi tL A nd so am I ,
/., H, A. My lord of WartrM*
any things more to say to this quetflsiii f
Earl or War, No, my lofiL
L. H, S, Then what ia your brdsliiaiE^ ^
sure P Is this man to be ailimtleil 1 witMH j
not?
Ltir^M. No, (Ki; we tbank, by taWp hef
be a witness.*
L. M, S. My lonl of Warwick* fay \
of opinion. That ibis perwti cannol m 1
as a wiinesii tor ynu.
Earlot ir<ir. My lords, I i«barit to 1
lordships^ jodt^in^nt in the inatter.
f ^'om. aiy knK I tm \
fifbti . h«¥e had this malfer
haled by the couuvi Hi 1:
tletl : All tny lord»
seems, are of opiiutui^ ti
witness, aud therelore In
rejected. But there i* uu -i.
have to make lo your lurdihip
I think oit^iit to oecou«tidere>l
brd at tlie bar did supposes that he badj
before your lordships, ttint he wetil 1
tield to ti^^ht ou the side of liie faiij I
killed, but not on the other side* audi
thai he went not to ^ '
rel; ^nd tbereuixir
whetlier it ahonld not lie .-i pre^umptj^
point of lad and law, that hr, t>eioi; as f
side of the (tarty that wa> ' ^' ' '; ^1 1
reputed iimuceut cd luii di
UpOil the *it "i-'r f«f 1)11$ t/.*j* *:4i*^*i,
it, w hell I one were firciifl
i%»g of a 1 1, i acre several f»e«iile 1
pfaflfed in h^^liting; on wbal
pefsofi were, ekber on tlic
that was kUled, cir on the otber ude, j«t r
soever crime Jt was in liiiwie that LdJcd '
was the same crime in i'^ < ^pfe
at tile a4:tioD. My lord < v iit4 d
tJiat Ilia counsel mi|fbt be U4^Ani op
point ; if there be any qucilioa wifth 1
ships in thai ciaei aoil mv lor4
couDsel may be bemnl to tliat matttr^
oc?casioii a matter of debate, which
in this place ««peuly, but must bo I
lordshifia among yourselves ; liiltosd, 1 1
reasonable that ooitnsel shouhl bt baatil 1
ll^e case.
L,h's, My lonU, 1 lareotti
rived at that qui^timi y* r**** •»•
lor pan I
Inite an*'
w hat that proof docs amount to,
^ S«c Mr. llarKTafs's notice oC Uno^
hia Inimetl lii^murM 00 tba rlCi
kM»«**- l*,.rJ-.i -• IVrtiiFy. iSee,l
»Ui«ntie
Men
Jor the Murder ofRiciard Coote, esq.
A. D.' IG99.
[I0»^
Earl of Rochtittr. In deed ^ tity lords, 1 liope |
J4«i will not suppose atiy thing'> and m lake it
iof gVAntfd, ihnt may oc^^asion any debate, be-
^^me ihmt 19 not to l>e done here in tliii^ place,
kut we iniMt adjouni to another place lor it ;
*Ehe bare putting; ot a case by a prisoner at the
^jT, fioes not make ibat to be the case truly to
lllil of fact, lor as tar as 1 heanl and under-"
\ the noble lord's pro^Misftl ut the har^ what
^4««retl to have bis counsel beard to, was,
\ bel>eing one of sLx thai went kito the Behl,
^oing' with a desiy^n to part them, and nnt
intenttoQ to promote the <]uarrp|, cotild
rln equnl deg^ree of j^nilt with those that
\ the olhtr side, ivho killed the (»arty ;
V, tuy lords, 1 take it, it is far from bein(^
1 un ttu idher side, that that is the state
if . mv lord himself ovvuK that be
nncl that be was eu'^fageil in
combiAt with Mr. James ; antt Uten tiie
»tH>n iiiu«t be that is to be debatetl, whether
tity thai is concerned id a quarrel v% here a
\ is killed^ is in equal degrree ^^^\\y with
that were on the other side against
I per»c*n thai was killed ? Aud then the ques*
nid be fur different from u bat it would
vise, and as bis Inrdship diil propose it ;
' there be a duubt in matter nf fai-t, that
111 to l»e settled ht^re in ihi* plucp, that af"
111 itv.w JM- ronsidcretl in another.
My liird^, [ cannot but
kw ii I ! . lord, thnt the matter of
|ht to be seiUcdt and then if any debate
liiereupoti, your Itirdsbips are to riturn
r own bouse, and there to deLntu what is
tdfifnient upon thai matter of fact : But
ever motion is made by the noble lord at
I bur, wherein he desires to liave bis counsel
(1, that 1 suppose may be considered here;
MM&tlua) point having* been started by my noble
locil at the bar, as a point of law, and not of
iaCS, I desire to remind him of it, to know
wbctber he does iui^ist upon it ; if he does not
note to have the matter mrgited, then ibere is
mtk eml.
X^ H, S, My lords, 1 do not think you will
JHi> coimaet upon a matter of fact, and there-
^■■l la not rqie UiW the fact be settled) tor
^mH^^Ar counsel.
^^S5H of War, My lords, I humbly pray, that
^oy will hear my counsel as to that |)oini.
i' My lord, this i» a lUfitttT of fact UH'
I, and not a matter of law: what
ii*cir hirdsbipswdl be of, when tbcy
I constdereil the pitKifii as to tbt; fact, is one
when th'dt i<* ovfu, it will be the proper
f any douhtbe remaintno^with their lord-
' I piuit of law to betir counsel ; but ujK»n
f matter of fact counsel is not to be allowed.
_ £arl Iff RocHetier. JVIy lords, if there be any
debate amouij the lords, whether it l)e a matter
of tact, or a matter of law, we must gro up to
ov^ti house ; l>ut upon any fmint of law,
bere couuiMfl in to lie heard, it must be in ilus
$n the pre^Jcuce of the prisoner, and
Iter wants your Jordships will debate it among
d?cs, •< . •
Earl of Koningham. I hope, my lords, the
counsel would not state the case oiherwi«iethafi
as it i» really in |>uint of fuct ; nor tun thi9
noble lord hope, thai any Ihingf will make ai» ,
im|vress(on U[)on my lords, but what from the
fact rightly stated, is siT^iportetl from the J
evkleuce; ' and that which my lord pro-*]
poaes, is to have bis counsel heard to a matieK j
of law, which your lon1shif>s will be judges of
aller you bavebeanl it, whether Uiere lie any*!
weight in that which he supposes to he his casein
that a person assisting in a combat on the siilc
of bini that ts killefl, in i» equal ile^ee of guill
with lliem thnt urir on the other side [ that |H>$'
&ibly, if lite fnct be ai^reeil, may be a point fif]
to liear counsel to, before your lord^hijis gu to ''^
debate it ainou^ youi'selves,
Duke of Devonshire* If I am^ not mistaken '
my lord of Warwick owns his beinjf one of
tliem that fought, for be has offered witne8se«j
lu prfive, that lie receivett a wound in bis ban
by fighting : if my lord of Warwick thinkSi"
that there is a difference Itetween his being on
Mr, Coote's side, and theirs that were on tha
other side, and would have bis coun.<^el beard,'
bow far it will difference bis guilt, and the natui
of the crime, from what it wan with tlieni c
the other <iide, 1 cannot think that ciin be 1
any great [lurpose to have that argued ; but if
your lordshijis^ please, you may bear his coun*^
sel what they have to say to that matter ; btif
otherwise, 1 cannot think, but that his lordship
wilt acknowledge the matter uf fact, Ibat '
was engo'^ed in ihe quarrel,
Eurl ot Pcterktrough, My lords, I desire, ;
this be a point that my lord's coutiicl ^liouhl l(
heard to, that it sbfiiild b« statetl as j\ ponit <
law, and then your lordships will consider of i
X. H. 8, As well as t cotdil upprehend it, i
it was oflered by my lort! of War wit k, this wa,
what he desired -to have bis couiisel hc^ard lot
though the ^»er»on^ engaged in the fiuarrel o
the oppoiiite porty to M r. Coote have bceu trie
and found giiilty of mansluughtci , vet he i
not in eqUHl degree of guilt with tliem, he^
bein? engaged ou Mr. Coote's side, and there*
fore wis lordship^s case differs from theirs wh#J
fought against Mr. Coote. This point he would
have argued by his counsel bt^fore your lord-
ships as a matter of law fo untied upon the fact ;
now the laet of the case nHi;>t arise* from
eiridenee as it has been gj*en, whidi has not
yet been debateil or settled by your lordshi[»s \
and tilt tbtit be agreed to be the case, no ques*'
tionof law does properly arise,
Duke of Leeds. My lords, li"^ po^isiMe,
would put this matter into its true method ;
indeed J think we have been all this while ou
of the way. The noble lord at tfae bar has de
sired to have bis coun^l beard ; this House ha
allowed himcoonnel in matters of bw; I wouM
desire that the counsel would state the case
to your lordships, that it may appear to be
case tit to be iirj^ned, that so ic may receive
your lordships' ' ' i ' iMin. Hfy
lord's own ban 'li»'*6'i **iH
uot be eoough to luciiyu jvur luru^hips to bec
n WILUAM Ul
OfHuioDi perliapa, one wuy or other ; but T
ivould pray your lnrdsbi|»t, iKat jou would
Uirect tjie co'uusel iIjmI are astigned foe my
uoMe lorti at tile bar, to firapos^ tbiil to your
lariiiibiijs as » nomt ol taw tluil be oit^lii to in-
sist upon* I timk it is apporc^ul to every bwly^
lltal 00 point ol' bw can arise biii upon tnaller
of fuel, which t« agreed to Jip proved in aoy
4^«e ; now th^j prootk of the (net we have
beard; nmf^ ihnt vihicli f woold proposeloyour
lortlships iSf th^t iiisiead of hinirin^jf hm courisol
ioargw*? iu |ioinlcif fnct, what k ii«l yet agreed
xipou to ha the I'act^ Ihey !>houUl state stich a
poiot of Uw as they wtiuU) urgue upon ; aod
ibea wbt-'thcr you woukl think it a point of bw^
or ont li poiot of law, we ti1u«;t g-o iuto titimher
pbe^^, where it may \m debuted, whether il be
«ucb a point of law as that coufi!»el should be
heard to it.
Earl of F^ttr borough. My lordn, I hope you
will forgive roe for inlrrfiosioir in tliis rnatler^
hut that which I 1« i v to it is this : 1
a Ol far from pivui- lOo as ycl, ai to
the mi^tter of t'^ "' k r my lord of Warwick
wan Mr* Cooii or bus enemy ; 1 know
it is not a proj'c; ^^^^.i; for ibat matter to be
debtied in: but my noble lord at the bar
desirfs to have bis counsel beard upon that
point, as if the fact was agreed : truly, tiJi
i)ie I'uct be a^sed, I <]nestion whether we can
|fiv€ any jods^noent 4»r opiifi«»o one way or
other, if I obierved aright, the evidence for
tiM Miug aitued at somewhat else : I n ball not
say what my opinion now is, till we eoine to
fleWte it amooir ourselves ; hut here is a desire i
itf batioif couu^el beards but there is nu <|o*fS-
liOB of law &taiLHl, but it depends upon a tikatier
of fact which is not yet determined by your
loniships, before whom tho cousideratiou of
both f^t and law doth lic| whsther a person
that is engag'ed on the tiidoof the onriv that
is kiUed iu a quarrgl, where several >ti
both sides are concerned, be as mM> i . i v at)
those that are concerned on the other iuW ?
I^larq. of N&rjH, My lords, 1 do suppoae that
you may hear the counsel to state the i|ueiiUon,
without your deteruuoing any thiui; u{)ou it« as
lo your opioion one way or oltior ; fur your
h^rin^f of counsel is only in order Xi> prepare
vourlorr* ' : ^ the debate amoiii^yourselrea,
if there IV doubt viiLli you, ltseemfl«
wy uobic .^ii. ai the bar has profHised ih.'it his
counsel should be heard i If the couo<«el will
staie the [loint to be argusd upon* your lord-
ships may here oucwder, wbetb«r il be such a
fine as it is tit to heaj couusel to; tb«n, no
daubv you will hear coimsel to it. This* 1
^upposo, you wilt hear from them« or oibm'-
wiie yotu* lord)»hi|i4 will not think tit In give
your««-lv4^ tlie troubh» to ^o and debate that
wli I » ho debated of.
I S, 1 am afrJiid, of
ntir^ h» your own house,
i'vt i ! urifuio^ oi>d^wilh
nr- ' f- • *^'^ roiuisel
luld bo
that it is ontv a mailer of facl« boim
laWf upon which oounael si
then it nuut be debated between ytiisr
which i^ not propter for tfi ito Mire;
I wuntd hondily mote your '
would adf^iint to your owm
E. ««i ufgh, 1 viippoarjFi
will bv ^ eoffuire of tb« ODUBSlli t
ther tliey (i« ^^n ihia poiftL
LiiS, ^Varwick^ifToarki
in^iit that y^>" ^^^Ji^u^**! ^boabl M twA
the point which you bare iklftfred^ it M
there is such a difference of opiniiui
lords^ that for the debating^ dT
dcaie ill the cnse, mv hur'lii initxt
it ■
tf
I..
If'
matter to y^
can be heard, <
t: la Enakc
^ that hi
^ ubnitl tt,i
(IS, wUofthfir mfi
•r i»u4, 10 limL point; mm \
tieiof^f of Air. Coote's stde^
deoth,
I. H* S, That is a inftkttf
Dot yet determined ; and
which you sujtpom to arise upon tt, k
npe to be resolved. If you hata no ohb0i
uesses to produce, Uiat which immui
think I may properly aoquaiuit yutt
metliod of proeeeain^, i«, that you vn
yonr paK to sufn up tji<» evidioKie thai hai
g'iv en, which is your ^ k,asii«4l
ailo\«« d counsel as lo < tact
at ' ' ; * V ti» make such ^nowv
t: our ad r unlaid Q|
uji.. t>.^ iw , liise your deliinot^
E. of Waj-utck. My hif< I ^^
the whole Til. -liter to voui hirdalufia. <^l
L. I '*!» «tyt
»acl| fj
I«bi^|
Ol It tm
lurtlihips, wtibosit ai^
Waru„
proved, to then-
raiu«r up of the evidence *, you wtio
kiD^'it CQUDSsl, if you tiiink ftt, wiilMliii
evidieuce on voitrs, ia order to iMi '
I :0||
Cf, tif rftt Cr. hM.-rjv3a4 ut AriUSt
clinmtioo.
Serf, itt Arm$, O Y««, O \'tM^ Q ¥«
lord high steward of £ughutd» kiit
straitly cluirge and contmiJiil iiH
saiis bere pt^aeitt, tf» licvp 8iltt»aa« upaaf
imprisonment.
L H. & G«iitl«meD, yeu iImA
hinge's courrse), now in your tiiiM
the evideno- ' ' ' '
Tim Ml JoboHsvli^
lo aum Up I lie €iideuc«% biit bk vi
low, that ha couhl not Ue bflasil bj ibt
that sat at the iinper sod of tl^t li
Dukeor Xtfib. My lisrda. 1
IfTMl imporliiic
^r *:■
6(Ctl
toay
hearwhtt u
Jw the Murder of Richard Coote^ esq. A. D. 1609*
[1026
uaing up of tbe erideiiGe, that if my
i of my opiniuDy we shall be very tie-
to know what judifiDeiit wepve when
le to g[ife judgment, unlets we are tho-
f appriied of the matter of fact and the
I ooofen I am goings to mote that,
ii a Ihing not acconling to the orders of
»e, but much without the rules of the
that the counsd should be heard in any
bee but where they are, at the bar of ihe
this if contrary indeed, I acknowledge,
Nilera of the house, ami so my motion is
IT ; but yet, in onler to our satisfaction,
i may be enaUed to bear what tbe king's
I do say to ut, especially in summmg up
dence, I cannot uut oner thia to your
ps ; for we can no more hear the counsel
lan if we were quite out of the bouse :
er, therefore, your lordshipa will |dease
Tt that any person that has a stronger
bould sum up tbe eTidence ; or whether
U dispense with the orders of tbe house
IS that Mr. Solicitor may cone to the
table, or some other pnce witlitn the
where he may be lieara by all, 1 must
it to voor lorAbips. It would be a great
tion mr us to bear him, in order to our
nt ; but I acknowkjdffe in this I do make
|[nlar motion, as to the orders that are
obserredby yourkntisbips: but I know
w to help it, IB rmrd, without boariagy
msiUe for us to form our judgAient
r Roek. My lords^ 1 have a Tery great
for every motion that that noble kund
9ke last does make, and I am of his opi-
lat it will mightily tend to the sstisfkc-
ny lords who are to give their judgment
esse, to liear both the cvklence and the
y.and what ohservatM>ns are made on
ca; and that it is a great disadvantage
counsel should have so low a voice, that
lords should not be able to hmr him ;
I hope that may be remedied some
ay than what ia proposed by tliat noble
»r if what he desires were done, it will
IBS, that in point of precedent many in-
races will oosnr upoD breaking the
if the boose, to comply with a motion
I acknowledged by the uoble lord him-
e irregular ; for it would be impossible
■ny body, if it be permitted to make
^reat noise without ; aud it is that whidi
the difficulty of hearing the greater. If
pe quieted, your lordships might hear
tlsman as well as those of the other
: or, if this gentleman's voice will not
reach your hearing, then there are
otiemcn of the king's counsel thai have
voices ; and if any of them would sum
evidence, I believe it would be better
and coDscqoentlv belter apprehended
lordships ; fur 1 had rather tiuy cxfie-
MiM be found out to comply with the
f the house, and preserve them, than
irrrgobur thing should be done for the
r tbe orders of tho boius, upon any ac-
batsoever.
Xtll.
L. H. S. Make another proclamaiion for
silence.
€/. of Ike Cr. Serjeant at Arms, make pro-
clamation.
Strj, at Arm$, O yes, Oycs, O yes, my lord
high steward of England, his grace docs btrait-
ly charge and command all manner of persons
here present to keep silence, upon pain of im-
prisomnent.
E. of Bridgewuter. Truly, my lonk, the
noise about the court is so great, that w«? who
sit much nearer to the bar, than the nolile lord
who made the motion for tiie removal of the
council into another place, cannot hear Mr.
Solicitor what he says ; and therefore I think
some of the guard shookl be sent out to clear
all the passages about the court, that there
may be no noise ; for it is the noise of iha
people without, that makes it so difficult to hear
the king's counsel.
X. If. & Let some of the guard without take
care that there be not that noibe made ; and
whosoever does make a noise, let him be taken
into custody.
[Then another proclamatMn was made for
silence ; upon whicfi there was a greater quiet-
ness in the Hall.]
£• H. 5. Mr. Solidlor, tbere is hopes now«
since there is not so mat noise as there was,
that you may bo heara by my lords : you must
use Ae bnt endeavours yoa ean, that you may
beheaid,
E. of Roch, If that gentleman cannot speak
eiH so well that he can be heard, those or the
king's counsel that have better voices, must
sum up tbe evidence.
SoL Gem* My lewd, I speak as loud as I can.
£. of IZodk. There are others of the king's
eouosel, pray let them do it then ; Mr. At-
torney, he bang neai^ and within the bar.
L. U. S. I know not whether Mr. Attomejf
be prepared for the summing up of the evi-
dence, because he examined the witnesses, and
the kind's counsel usually allot to tliemselves
theparticular parts which they intend to take.
E.ofiJRocA. Then let Mr. Solicitor go ou.
SoL Gen. 1 would shortly observe to ytnt
lordships what evidence hath been givte to you
OB behalf of the king in this case, a^inst that
noble lord, the prisoner at the bar, tor the of-
fence for which be stands indicted. The 6rsl
witness that was produced was the drawer al
the Greyhound- tavern in the Strand, where
this 4|aarrel, that was the ocscasion of the death
of this person that was slain, happened; and
he tells you, that that night there was at his
master's house my lord of Warwick, ray lord
MohuB, capt. French, cant. Coote the person
that was killed, ami Mr. Dockwra ; and after
they had been there some time, that other per*
son, thai was tlie sixth concerned in the scuffle^
Mr, James, was sent tor, and he came in when
it was pretty late; there they continued till ooa
or two o'clock, and then they came down to tba
bar, and orders was given tor to call coaches ;
but it being to litO| and Suiulsy moniiog> thsy
3U
kttilil noi Ant) oQNtdMt, kuil lli^ there was or-
^ero for Ihe g'ctHnf^ of chair^^ ; vcUeii sBoie
t^a]r» wvri'broH|(lil, Air, Cuoi^ a^fl Air. Fr«neh
went iuto two of the cbali^, liu£ my torct Mi^Uttn
lotvrposc^i^ and s^iJttt«rtf fthouU b« itutUik^ limiii^
thai ui^iti ^n^l that if the y wenf inM-ay ke ivuult)
tsit for ^ fihMif mi3SqueWr« triltii the guards
suit Bcctiixj llicpi ^ fluil lUsmipcn tbey c^itu*
^iit ol' ihc ehair^, atid iveni itU^ the liousCf smd
lli^eirDM the tioiiecif swonls clasUitif Keanl al
fbobsir; craptiiici CiMJii^ Baitl tie tvonM kui^b
-^hen lie tika^«4)^ and frown \sbmi be plfastil,
•Dd I hey fi^rtetl ; ttire« nete on one tith'r iLtiil
«. ttircH^ on the oLlter <rf t)i« bur ; niy luril of War*
«rii:k| my Kird Mul»nii, ami c^pinin Ciiote, wm'^
wm ftnc »Ule -y c«|itaJ» Freucli^ capUiii James
atid Mr. t)o<*kwr;i, w^i'^ on iLmotlier fiiik^. In*
ilivd bf M^K my lopl Mohun nnd my lord «yf
IVnvi%kk did wbnt they coutd to f>acify ibem,
anti threattnal to send ,for the i^unrdM ; kwt
All ay they went. TUe n^Kt witness %viib TIio-
nmt hmm^et m%d he wag tbe chaimmn that
cirrieil Hr. i'mHi;, and he &ays, Ihsit %\\vtv was
ftLi cudeaTour by my ioid of Waiwick and my
itm\ IVtohtm M» putofVllie business a| Lh^^t liu^t,
und that ihey did what the}' ctJuJd to Imve* |»nt
it olf, and thtit even after Ihey were in their
cimirst when I hey were turned up St, Martinis
[Ktie, thf r« I hey stopped at the baji-k doav of tlie
CrnKs- Keys -tavern, iind thai while they Kteod
tbere wkh their three chairs, three other ohair^
^fUaehy^ and then captain C^ote hid Ui^ni pui
«|^, and to ■ low after those chaii^ aa fast » thty
doald to Ldoester-ReJds.
The B«Jtt witness is William Grippes, who
was the otiter chair man that carrktj csaptani
Cootei aud l^e ghim your brdihips nnicb
tbe same accomii ttjat Bromiie q^avc hefbre^
and bis evidence waa jn^t to i\y& anme pur-
poaCi that my lord of War^rick and my lord
Mohun 0idcar(iuri?d to pacily the mat Lor , and
tkBt theie should he an eau of the hnsiiWss
ior thU nighty and letit aloiie tlH another tjmc |
and that my brd Alohun threatefieft to send for
Ihe guards, and secure them, and would have
bad tbenn gone hoine, tliat is Mr. Coote either
witli him to \m lodgings, or Ik: would ^ to
lir. Cootc's ; hut he could not preirail. Then
my lord IVtobnn said^f if he would go on, biit
ktdship would go and aee au end of the Imi-
Tbe next witness wm. one Crottk^ who was
eoe of tbe chairmen that carried my lord of
Warwick, and he says, that tny lord! Alohun
mnd my lord of Warnick did endeavour what
they ^ukl to (mt o4flbe mat icr till tbe next
moaning, but thai they could not prevail ^ thai
silerwavdSf when he carried my lord from Lei^
ct^lar-Aelds in the Bagnio, my lord borrowed a
kftudkerchief of bim lo wrap* his hand tn, for
he >akl he wu wounded, but by whom that
woond was given dnea not apjtear, tior bow be
eaum by ibut wouuil^ any otherwise than as
bla lordship himself aaysi that it was gtveo him
hy Mr./iiuea.
' Th« next wii the other chairman that earried!
Wf ^ of Wujviek, whacL wis Jvto Gibiofi,
renpan Hit ]
and ida testimony oeed uoi be i«M»W(i, h»
cau&e it did not difler irota liie mii«r«. Tlkt
nc3(t wiincas was Rol»rrt A|i|iM0aif , wW pa»
tlie chairman that carried my lord Motvuti ; m4
he days, that there wtm an etudeaavoiir und bf
my lard ujiuti his setliu$r «hiwit *m tk. Mma't
kit4e, tD i|uiet capt^lin Cooit*, ami pi
^uairel at that ticae ; but he say a,
nuuld go on, my lord IJohnn aaid,
go and see the end of it ; aiid thetenpan
neni on tuirards Lt^ice^er-lirtds ie tnein4JI''
Green -atreei, which ia at the k>wer sod nf thi J
£i|ua)'e, .
The neit witness was i'telfwrr, who waauli
of the d»aJrnien that cartiwd !Vtr, l^rencb la Hfr ]
Bagniu ia Ldng- Acre ; and hv t«-Ua your hml*
!ibi|ta what kap{)ei»ed u|»oti \m carrying him
thitlM/r i how, imnH^ihatrly alter hnt mmlm ]
there, rny lai^ of Warvi i<^k cain* ihither, m I
they kiu»okt*il at the door at th«^ u^me tMii^,tti J
that vsfvluin French was tery madi wana^ j
and they wc^nl intn tliJ^ hniVwe liigvlht«r, aai i
that tVmich would bait? had Ihefn pidl kit bM j
doaths tf> see bis wounds, ttur ht: helkf^d hi 1
was a dead maD. j
The ne^t wituesa waa the ehotrmaa wbiel ^
carrier I Mr, Jatueg, and he otity tolla vonr bgvl*
sbi}»Hlhai hecanicdaq-eiitkntai] intaXdcei^
fields ; thiit my lord Mo htm frifJeavutirtd li (
put oif the busin<?sg lor that ijij^hi ; trot #U j
the per&au was that he carrietl be oaaai il I
w eU tell, nor give an accocu)! of ; batwhea hi
hail set him down altbe rnrtber 4Mid nf t|te|
KiT>are, there he N t him, and l»e krjo** tl
turlher
Thc^n there was ihc surgeon at the b^[Qiiti
Lon^ jicre, who gives yonr loi^J^Lips la a^
count, I hut about two oVInck in thetiHifisif^M
theSimdaVi my lorff of Warwkk nod cajilfl *
l-'rendi came In there ; capdiin Frencli i*
ivoniidi^d fj) (he body, and my lord Warwjdc til
wounikd in the band, £tnd iirty Ford Wtf«U|
did tike extmofdimiry care nf eaptain Ffv^ [
and would not have the door opetted ta nf
hnily, nor his JordBhip iTiown lo he ihert? ; tb»
al^r wards captain Jamef and Atr, Do^kvif i
came to the door^ and my loiil eame la ""
door himself, and wtieri he aaw
were, bo orderal ihem to be hi in-;
thertt wns a difK!Oiih;e abont
country, and that there \^^i a
was billed. Thii» is the etlcct of the
both of tlie surgeon and bi*! servants i aiid it
to be ohaerfed, thatwlicn captain French «ai
iUf his Btvord was not hhody, but my liad
Warwick *s sword was bloo<ly aluEiost all
and that was taken notice ^'iKc ne^ day \
there am aevera! t* itnesscs, both men
men of that house, that gire your lordi
account much to the sume purpose
there was captain Dnckintield, who «ys^
my lowJ of Warwick came to his lodginp
they went in a coach t^^iherto the li^
Cornbdl, nnd thifU there was a diaiT*
ffoin^ into tha conntTy, and my krd ■
he was afi'atd hi^ fnend Coote wis hi
that tlic^y k^i ito ftb^oluic newt «£j
I aadiqd
089]
Jar the Murder of Ricliard Cdoie^ esq.
A. D. 1699.
[i03ft
iilcd ml tbai lime ; for it nhould teem my lord
r Warwick Ibrsook the field as soon as the
ital stroke Wat gif en, which, bv whom it was
jifCD, it left to your lordships' consideration.
iideed it is pretended by my lord, that the
toand that he had in his hand was gireu him
y Mr. James ; but nothing oi* that is made
pnrent to your lordsliips upou the proofs.
Then we came to gt^e vour lordships an ac-
DUDt of the nature of the wounds that Air.
loole had in his body ; and fbr that we pro-
need both the surgeon that did probe the
rornidt hy the order of the coroner, and the
oraner hmself. Indeed we could not get a
MsitiTe answer from either the surgeon or the
— loer,' whether the wounds were given by
and the same sword, or by diflerent
I ; but then your lordships hav.t the tesli-
Booy of Mr. Turner, who was captain Coote's
mant, and who knows his master's sword,
lad It hath been shewn to him, and he says,
ihst it it hit master's sword that he went out
aith ; and it can be easily judged whether he
dddM give himself those wounds by that sword.
And jour lordships hare likewise had
hiwgfat oefore you another sword, which was
kft al the bagnio in Long Acre, that was cap-
tm French's, that bad no blmxl at all upon it ;
\hIL mj lord of Warwick's, it eecms by all the
cridenee, had a great deal of blood upon it.
Thco came the witnesses for the urisoncr at
iK bar, this noble lord, my lord Warwick ;
mA Ibe tnm of the tcstimoRies that tliey have
linen, it of a jp^at deal of kindness between
vjlord Warwick and captain Coote ; that my
kra lent him a hondml gniufas to purchase
Ml commission in the guards, when he had
ht three of fuur hundreil guineas which was
■tteanry to make the purchase ; and there
imtevetal of them that do testify, that they
fehniyt looked upon captain Coote and my
Mof Warwick to be very gopd friends, and
Ibat there never was any quarrel between
bcm ; and that it the sum ot what tlie evi-
mot da that tide did testify. And this, my
iHt, I take to be the sum of the evidence that
■at beeo given oa either side ; and when I
ftve laid it thus before your lordships, I must
abaoil it to your lordship's judgment, what
pinioB yon wiU be of upon the whole matter ;
alvthmis thitoneobservatran that I would
■ica to yonr lordsbipt upon this evidence,
\al there it not one witness that has given
Kititlactnry. by whose tiand
Te given to Mr. Coote ; and
, thouj^h it is ap|iarfnt luy lord of
iTanvick was in tlte place where the mortsl
' waa giveo, yet by whose hand it was
ia not yet known ; until that can be
I every perton that was there must re-
HWB mMler the imputation of the same guilt,
I haviogla band, and contributing to his death ;
; ia eertaio, aad cannot be denied, that thit
ahla lord, ray lord at the Iwr, was in the
old, wherein there was actual fighting ; for
adoaa not deny it himself, but says, that he
«a OBgaged partkularly with captain James,
'heo captain Coote waa engaged with oapt.
French, between whom, as it is allcdged, the
onarrel was ; but that is no way, in point of
fact, made appear to your lordships ; and there
being such suspicions and circumstances of the
blood upon my lord of Warwick's swoni, and
the great concern that he was in when he came
to the bagnio, and desiring to be concealed, and
that nobocly should know that he was there,
and the care he took of Mr. French, who it
the pretended person that did the fact, is that
Which is to be submitted to your k>rdsliips ; and
it is to be observed, that Mr. French's sword
was not bloody, but only dirty ; but my lord of .
Warwick's tword wat very bloody from the
hilt to the point, and be was in a great contter*
natjpn when he come into the house.
There is likewise a circumstance which your
lordshi{>s will please to observe, that even Mr»
Coote's sword was brought into the house b/
some of tlie company that were there ; and
wliatsoever this noble lord pretends of hit
frieudship to Mr. Coote, yet, it seems by hit
care that he took of captain Frencfa, he had at
much friendship for him.
There is another circumstance that has been
testificil, which it will l)e fit for yonr lordships
to take into consideration, and make some ob-
servation of; that is, the nature of the wound ;
It seems, he had two wuuuds, one on the kfl
side of the breast, near the collar bone, and that
was downward ; and yet his man, tliat wat
here produced as a witness, does testily, thai
he was one tliat used his rigiit baud, and then
it is a wonder that hesliould receive such a tort
of a wound in that part ; and the other wouqd
wat on the left side too, but it was upward, and
how that could be given to one that wat a right
hauded roan, is certainly a very great won-
der ; and the wounds being both given upon the
same side, it cannot but be concluded, thai
they were given by one and the same sword.
Another circumstance which relates to my
lord t»f Warwick is, that when he eame into the
Bagnio, after the fact was over, he would have
himself denied to bo there, and went to the
door when James and Dockwra came in ; and
his decbring hit desire of j^ing into the coun-
try ; these, we tay, are circumstances that do
induce a doubt, that m^ lord of Warwick had
a concern upon him of great guilt of having a
hand in this man's death : it is indeed pretend-
ed by my lord of Warwick, that Mr. Coote
was a person that my lord of Warwick had a
kindness for ; but it is plain by the evidencoi
that he left him dead in the field, and did not
take any care of him, but took a great deal of
care of captain French, who, it is pretended|
was the person that fought with Coote, when
he came to the Bagnio ; and there is nothing
of kindness at this time pretended, nor any
thing of a defence to this matter offere«i by my
loni of Warwick, but only what the chau'roen
say, that he endeavoured to put it off to ano-
ther time. These, my lords, are all the oliser-
vations that I shall make U|Mjn the evidence in
this case ; how far this evidence, ui»oii con-
sideration, will weigh with your lordsliips, I
must tubinit it to ^wl. \\ m^Vait^^lxsvL-
1031]
11 WILLIAM IIL
wick did do tti« fact, as these circoimtanees,
we think, may iodine your lordships to bciieve
he did, it will surely be murder ; but how. far
the evidence ciomes up to the proof of that, w(»
most, humbly submit to your lordihip«, wlio
are the judfi^es of it; and we leave itintirely to
your consideration upon what you have heard.
L. H. S. Then it seeins you haf c done on
all sides. — CounteL Yes, my lords.
Lords. Then adjourn, a4)ouro.
L. IL S. Is it your lordships' pleasure to
adjourn into the House of LordaP
Lordt. Ay, ^y.
L, 11. S. This House is adjourned into the
House of Lords.
Then the Lords went back to their own
House in the same order tliey came into the
court in Westminster- hall, and debated the
matter among^ themselves, what judgment to
give upon the evidence that had been heard ;
and in about two hours time Ihey returned
again into the court, erected npon a tcaflbld
in Westminster- hall ; and aiVcr they were seat-
ed in their places, the Lord High Steward
being seated in his chair before the throne,
spoke to the lords thus :
L. H. S. Will your tordsliips proceed to
give your judgment? — Lordt. Ay, ay.
L. H. S, Your lordships will give me leave,
as I ask your lordships your several opinions,
to take so much time as to write down tlie opi-
nion of every lord. — Iioreff. Ay, ay.
Then the Lord High Steward asked this
question of every one ol' the lords there prcscMit,
befirionini^ with the puisue baron, which was
the lord Bernard.
L. H. S. My lord Bernard, is Edward earl
of Warwick gudty of the felony and murder
whereof he stands indicted, or not guilty ?
The lord Bernard stood up in his place un-
covered, and laying his right hand upon his
breast, pronounced his judgment thus:
L. Bernard. Not guilty of murder, but
guilty of manslauglttiT, upon my hoiiour*.
The same Question was asked severally of
all the lords, who in the same form dclivei-ed
the same opinion.
Then tlie Lord High Steward reckoned up
the number of the Peers that were tlun prc-
aent, and the opinions that were given, and af-
terwards acquaiuted tlitir lordships with the
Resolutions tliat they came to, in this manner :
L H. S. My lords, your lordships are 03 in
number hci*e present, and you have nil ac-
qiiilted my lord of Warwick of the murder
Mr hereof he stands indicted, but you arc of opi-
nion that he is guilty of manslau*4htcr : Is it
Tour pleasure that he should he called to the
bar, and acquainted with your lordbhips judg-
ment ? — iMTih. Ay, ay.
• Mr. Barrington, Observations on 34 Ed.
3, infers from a Case in the yearb4ioks, (Mich.
1, Hen. 4,) that the answer originally wa^u^o/t
ff*y conscUnct, and not upon mif honour.
TriaiqftheEdrloffVarmck. [1033
Serjeant ai Amt, make pxo-
CL (fthe Cr.
claroation.
Serf, at Amu. O yea, O yes, O vcs ! chiff
governor of tlie Tomer of London, bring forili
the body of your prisoner, Edward earl of War-
wick, iortbwith, upon pain and peril will M
thereon.
Then the earl of Warwick wu brought tt
the bar.
X. H^S, My lord of Warwick, your lordskip
has been arraigned upon an indictment for ifae
kilting Mr. Coote ; you have pleaded not guil-
ty, and put yourself upon your trial by tnt
peers here present; my lords have heard tbi
evidence given both against you and for yoi,
and have considered of it> and are come U a
resolution ; and their judgment ia. That ysw
lordship is not guilty of the murder wbemf
you stand indiocd, but that you arie guilty of
manslaughter. What has your lordship n
say, why judgment of death ahould not be
pronounced against you according to the lur ?
Earl of If'ar. My lorda, 1 desire thit tbe
benefit of my peerage may be allowed ale,a^
cording to the statute of Edward the 6tb*.
L. IL S. My lord, your lonlahip bu k-
manded the benefit of your peerage upoa Ike
statute of Edward the 6th, and you must have
it by law ; but 1 am dh-ected by their k>nhfafi
to acquaint you, that ynu cannot have thel»-
nefit of that statute twice ; tlierefore I an
likewise directed by their lordsbipa to nj,
that they hope you will take a more tlno oiv-
nary care of your behaviour for the future, thtf
so you may never hereafter fall into such ub-
I'onunatc circumstances as you have been nov
under ; my lords hope this \\ ill be so sensflJci
warning, that nothing of tliis kind willeur
hajipen to you again ; your lordship is uo«t«
be discharged.
L. H. S. Is it your 1ordshi(is' pleasure to
adjourn to the House of Lords.'
Lords. Ay, ay.
L. IL 5. Tins House is adjourned to ibe
House of Lords.
Then the lords went in procession, in ibe
same order that they came into the cvnr;.
* Mr. Barrington (Obs. on IQ H. 7, c- " }
says, ** 1 tind but one instance of a crimii i
not claiming the bcnotic of clerg\, nhicli
that of the duke of S«>mers«'t " 'Sce ioiha
Collection, vol. 1, pp. 509, 61,'>, the nrorffif-
ings against him. The rxpiessinn of «ir Jola
Hay ward, to whom Banint^tnu n>tors (.S»«kif
*' Life and Keign of Edward iheSiMh")iat
Kenuctt, are obsorvahlt-, ** The dukeofMumcr*
>et might have cravtxl his clergy ; but he*rf-
f Me<l judiruunt to pass." If lord Audby (l^«'
his cuso in this ColUctiou, vol. 3, pp. •101,401,
■XiXi, '2 Hale 8 Fleas of the Crono. c. 4l
fxach's Hawk. I'i. Cr. b. 2, chap. 30, t. 1S|
chap. 53, s. $8.) had !>tood mute upun the ii*
dii'tiiMint against him for the rape, he wtdH
have iiititlcd himself to benctit nf clcfgyt*'
so have avoided sentence of detlh apon tkrt
coavictioo»
Trial of Lord Mohun.
March 29, 1699,
LBOUT one of the citvck the Lor^« came, in
same order as tiif* day before to the trial
Tthe earl of AVarwick, into tlie coart erected
* Id Westiiimster^hal!.
t C7. o/* Cr. Serjeaut at Arms, make procla-
^Sen^ at Armj;, O Yes, O Yes, O Yes!
^wiy Lord High Stcwant UisijTace does strictly
charge and comnnand nil manner of persooM
Hbere present to keep silence^ upoti pab of im-
^wisonment.
^ SerJ. at Arm. O Yes, O Yea. O Yes! A)J
manner of fiersona who areohligeit to ^ive their
tendance htfre fhia day* before hb grace nry
ord Ht£;h .Steward of Engistud, let tbein give
keir attendance forthwith.
CL of Cr, Serjeant at Arros, make procla-
atioo ngain.
Seij. at Arms. O Yes, O Yes, O Yes ! His
?roy Lord Hit^h Steivard of England doea
aitJy charge and eojiimand all manoer of
'penoo« here present lo Ite uncovered.
CL of Cr. Serjeant at Arms, iwake procla-
mation affain.
^fc Serj. at Arms^ O Yes, O Yes, O Yes !
^Khie/ tjorernor of the Tower «f London, brintr
^BrttU the IxHiy of ^otir prliiouer Charles lord
^Biobuii lortbnith, upon pain nud peril wiU full
^fcereoo.
^m [Tlien my lord Mobtin wti brought U> the
.iiiir. J
L, High Steward, (Lord Somem.) My kwrd
^loliunf vour lordship is nuw brou|2fht upon
If our trial fur the murder ot Mr, Coote. for
you stand indictefJ by the grand jyry
'county of kVliddlcsex. The kingf, ivho
! that /iistrce is one of the |MHaravvhich
supports a throue, will have a strict account
taken of the blood of any iifh\n std»jects, with*
«iit respect to the qnalily oi the slain^ or of ibe
person wlio stands chari^ed with his death.
Thtfre is not one of the nulde peers here present^
'who arc to be your triers, but does heartily
^krigh your lorditiip mnocent ; but on the other
^Mhle, »f you sh*iiild appear to be guihy upon
^Pthe evidenre, you ofight not to hope tliat any
B^^onsidemtioii of relation, frlend<ihtp, or pity,
will prevail ai^ainst ju<Jtice. And therefore^
aittce in your present rondition every thing that
}[i% valo5ible in this world is at stake, it will bf
lii|fhly neces«iary for jour lordship to recollect
ljoun>elf, and tj hnvc your best thoughts about
nrotJ» Facts of ihiij nature are frequently at-
* See hiH former Trial for ftliirder,. Viil, 12,
. 950. of this Collectinn. 8ee, also, Holt, 479 ;
1 East's Fleas of Uie €rowii| c. 5, •, ISi.
2
>3. The Trial of Charles Lord Mohun,* before the House oi
Lords, for the Murder of Ilichard Coote, esq. ; 1 1 Wjllia]
IIL A.D. 1699-
tended with such unhappy circumstances, L...,
a noble person may be justly covered wiih
shame to have faults and weaktiesses cxpcwcd
la such an assembly as this, altbou^li he ha
not conscious to himself of the guilt of blood :
but your lordship ought not to be so (ikt dis-
composed with any thou£|rhts of this kind, as to
neglect y on rdeteticc against this heavy accusa-
tioti of munler. In order to this, it is neces"
sary tor your lordship to hear with temper
wit at will be said against you, and by no
fueans to interrupt the counsel or witnesses.
I will take care to give your lordship notice
when the proper time comes ^or yon lo make
\oiirobservattonsn|M>n the evidence^ to examine
your witnesses, and to say what you thiuk
proper for your own defence; and when my
lords liare heard^ and fully and maturely coti-
sideretl the whr^le matter, their lordships will
give such a judgment as the law and justice
require,
L. H, S* Rend the indictment to my lord^
CUrk of' the Cruicti. * Charles lord I^lohuD,
* your WdsUip stands indirled in the count v of
» T^liddlesex, by ihc name of Charity lori!
* Mohun of Okehamptiin in the county of
* Devon, late of the parish of St. Martin's in the
* Fields in ihe conn 1 5 of Middlesex, together
* ivith Edward earl of Warwick and Holland,
'* late of the same parish and county, Richurd
* French, late of the same pjirjsh 11 nd county,
« gent. Roger James, late of the same parish
* and county, gent, and George Dockwra, late
* of the samp parish and county, gent, not
* having the fear of God before your eyes, but
« lining moved and seduced by the instigation of
* the devil, the SOth day of Ocloher, iu the
* tenth year of the reign of our stovereigu lord
* that now is, WiJIium the third, by the gmce
« ofGodof En gland, Scot! a ml, France, and [re-
* land, king, dt,*cudc*rof thefatlh,<^c. wiih Ibrce
* and arms, 'kv. at the parisli aforesai<l, in the
* county of Middlesex atoiesaid, in aud upon
* one nichnrd Conte, esq. in (he peace of God,
' and oTirsaid sovereign loril the king, that now
* iiJ, thf n and there beings feloniously, wilfullv,
*■ and of your ma hce afore -thought did make
< an assault ; and thnt the afortsaid Kdwanl
*■ earl of Warwick and Holland, with a certain
* sword made of iron nnd steel, of the value of
'five Khillings, which he the said Edward earl
*■ of W'ar^vli'k and Holland in his right hand
« then and there had and held draw n, the afore*
* said RirhKrd Coote, in and upon the left part
< of ihe hreoNt of him the said Richard Coote,
' near thii collar- bone of him the iinid Richard
* Coiite, then and there feloniously, voluuiurtlyi
' and of his malice afore* tliought, did strike,
■ stub, and thrust in^ gifiog to the ^Id Richari
i
^ Ctiote, then and there wttfa the eword drtim
^ al^Kenidy in and apoB the 1^ part of the
^•bceartdf Urn tbaa&I.Vkteri Geete. Mfer
* the eoBar-boneeThim th6 said RMuadCoole,
«.«» MrtAI Iroand of tiM hMdib oChplfaa
^ iiidi, and or the Septhof fif^ iochee, c^ whidh
« eaid oortal woaod he the afbraaid Riduurd
* Coote then and there uMtaotlv died ; jui4
t that yet Om Add fM Meiim^loMkr wftfa
^Ga8nnl>ftektrra,tfa«iaiMl'AM ~
pnataaL
«t nd
Warwicit ahd
4
4
4
•
<; Wehavd Cooie ki maMier^and ftm lMetdd»
• MeoioMlT, wilfUly, and of his malieb aJRwt-
« thMMrin, tol^ and mindw ; and so the said
^^BdMddeaiHr Warwick and Uolhuia, and
^jMirfw sdM Chalks lordHohail, ttchard
• mneh, Retfer JaflMS,and GiMrt[eI)bdkirra|
^ the afbreisM Richard Code, hi manlier and
'ftm afcresaid, lielonioiMj, wiKoltr, dndtf
*y#ar- nallee afere-ihougfat, M kil 'and
' ttifeWTi affiiost the peace' of onr sof|Hp|p
IM 'the ko%» that now 1% his orown and
*«?•;
Cr. HowsavTOOiChaiteslordMo-
Imn, are you guilty or this felony and
Bof yon aland lodiotedt ornot gnilqf P.
Jj^Mokun, Noignilfrv.
€L^Cr. Colpnt, How will yon be tried?
Lb Jmiul By God and m j pitft.
'CLrfCr, GJd send yonr wmUp good de-
lifeninee.
CL qfCr. Serjeant at ArmS; make procla*
mation.
Serj. at Arm, O yes, O yes, O yes ! All
manner of persons that will ci\e efidence on
behalf of our sovereign lord the king, against
Charles lord Mohiin, the prisoner at the bar,
let them come forth and gi?e their eridence ;
for now be stands at the bar for his deli-
rerance.
L. Mohun, My lords, I desire I may ha?e
the benefit of pen, iuk, and paper.
L, H, S, \ our lordsbii)s are pleased to per-
mit my lord BXohuu to have pen, ink, and paper?
Lords. Ay, ay.
[Pen, ink, and paper were carried to my
lord, by one of the dorks of the House.]
Mr. CoTrper. May it please your lordships,
my lord Moimn, the prisoner anlie bar, stands
indicted by the grand jury of tbe county of Mid-
dlesex, bei'ore commissioners of Over and Ter-
miner in that county ; and tbe indictment sets
forth. That Edward earl of Warwick and Hol-
land, Cbarles lord Mohun, baron Mohnn of
Okehampton in the county of Deron; Richard
French, Roger James and George Dockwra,
the SOth of October, in tbe tenth year of his
majesty's reign, with force and arms, at thf
parish of St. Martm m the Fielda, in the county
of Middlesex, upon one Richard Coote, esg ;
feUmkHoly, wilfolly, and of their malioe afbre-
tiMraghtydidmakeaBaaBiiilt; andthalthenud
.EttwurJ earl of Warwick inf Hotland^ witb i
tlrawti svvord tbcci in bis right bam), \hw. uii
litchard Cixttei opoo ih^ h(i pOLri of bb brtui
ucar ttie collar bone, did strike, slaU, utal tluiij^
^mng him tber^by a inon^l womd el' lit
bieudiU orimlfaQ iucb, anil tbe sW^ sf in
inche^y of ivbkh woiifiiJ E»e ii»tanl1y tfivd; tkt
my lord MoUun^ Mr. French^ Mr. jMutstnl
Mr. Dock M ra , f«loabii«ly , wtl fii] {y , M\d i^f ihat
malice alureihoii^ht, wevB prc^nt, aiding, vd
abetting^ my brd of Warwick ^oA BallaB^
ttte said Hie hard Cfwte, in tnanuer mfMrtwdi
to kiH ft lid murder; dud then ^oodul^
so thai the earl of Warwick aiul UfflJMij
the Kaid lord Mohuii, Itidtard Fretieh, BifV
James, fiod George Docknr^, the smid EdMri
Coote, In manuer mid foriii ^foie^iiJ,
ously, wilfutly, ^nd of their insi1ic«
ihought, did kill aintl murder, a^£ia iJie
of the king, hia erowa aorl di^jnily, *"
imhctmPM aiy brd Mohuii b*a
giuHy, aij^t for hb trial ha^ i^iit Ii)j
Ciod and y<^Mr lofu*ihfjj^, In^ i^offji, W«
'call otir witucssi^, mul |»ru(lii^ ^%hH ctidcw
we have 16 ^i^c to piove my toid M^0
gutliy, and to suhyta il lo you,
Ji{<irne^ GcfitriiL (S»r Th^m^i* ttrm*}
My lordi, this noUit? lord, my l^jnl Mobytt* d»
prisoner at ihe bar^ ^tntiik mdictrd fm Uiftdiilh
of Air. Coote, t^ticr of the kiog^^ siihjfsdti M
vour lords htfis ha^e heard in Uip ai*»v tl " '
heforc \'ou jeisterday ; lo which ludivloi „
bath |ileaded uali;uiky, and for hit tryd
pnl lirmself upon my Larcb, who arc \m pivr>i
I shilt veiy shortly open th^ £obstADc« tiftbs
crideiicc thai we shall uffer for ihe king ttjpiii
my )oi d, the prisoner at the bar ; ire mm f9-
duco evidence to t»roTp, that at the time km it
the iudictuientj the gpth of Oaolier at uig^H
and tl>e next marning, ivhich nas Stuidiiy, anf
tord the i^risooer m the bar, and my ^t) ^
Warwick, (who hu bt'en fouad guilty of mm^
slatig'hter upon this indictmeat before }m
lord !i hips] and thosa other penvni %h»l *tc
named in tbe indictment, captalu Frcocb.af^
tain James, and Mr^ Dockwra^ and the gruLlt-
man that waa killed « hftppeni^ to bv at e^
Greyhound tavern b the Strand, which ai>i
th^ ke^A by Mr. I^ocket, and coutinued tb«*
a great part of the nigbl* indeed til! the ocit
murniu^p about one or two of lh& clock io l^
morn in If ; there waa mv lord of WarW'iLkiWf
lord Muhun, captain French, captain C^v^
and i^!r. Dockwra ; but very late in the aiglet
tbe other geDiieman, Mr. JmwKMf was idttigi
A meneoffer waa sent particularly to hare
come to them ; there they coniiooed dif~^
till about one or two of the dock m tha ^
iiig» then coaches were sent ibr; thailjh
drawer of the house wiQ acfountyeiirJlH^
ships, that he went for theoi, and
any at that tune, being a TOiy dark night} i
when there could be no coachea Mm, )
there were chairs called for, and the iti
went to call chairs ; and an wa shnll «L
apfiear to your lofdshipa, when ihn f
CUM back, then did ifpov l»AgM
f037] for ike Minder nf Richard CootCy esq. A. D. lC9f>.
imotig them, for there was cinshtnnf of swonU,
ind they scemcfl to be divifled into tuo |>artU's ;
Ml the one side \f ere ray \on\ of Wnruick, tny
iird Mohuu the prisoner at the bar, anil Mr,
C*oote; on the other side were captain French,
[Uptain James, and Mr. Dockv ra ; and first
ihere were two chairs came to the door, into
which Mr. French and Mr. Cooie vent, and
vbeo they were in the chairs m^ lurd l\f ohiin
i»me out, and saiil he would kill r.ny of the
ehaJmicB that went awa}' ; and so they put up
if^iD, and the gentlemen came out. aiitlcaine
into the house ; hut afterwards Mr. Cniite went
■ito the first chair, and my lord of Warwick
■lo tlie next, niid my lord Mohan into the
third, and then they went away ; and the other
three gentlemen went into the other three
chairs, ami followed them. Yonr lordships
win hear m hither thev were all carried. When
they came to the entl of St. Martin's lane in
the Mtrand, my lord Molmn would indeed ha^e
cadeavoured to ha?e penuaded Mr. Coote in
|«tienhir to have gone home for that night,
wti let the business alone till another time;
Wt Mr. Coote \«ould go on; and while the
three. chairs carried my lurd of Worwick, my
MMohun,and Mr. Coote to St. Martin's hoc
Otf, which were the three first chairs that went
tny from l^iocket's, the other three chairs that
vent after them OTcrtook them, and then by
Mr. Coote's command, the chairmen that car-
lied hhn went forward towards Leicester fields ;
iid then this noble lord, my l^^rd Mohun, did
.^» Jf you go on, I will go and see the end of
%9ad onlered the chairman ttmt carried him
ti gtt afler those chairs in ivhich my lord of
Wtnrick and Mr. Coote went; and cccord-
3^ they did go till they came to tlie hither
of the square in Leicester fields, near
^reen street end, where my lord Mohun pot
Oat of his chair, and paid for all the three chairs
l^ne shilKogs. But wc shall not be able to
gm to 3'onr'lordships an account particularly
■s to ny lord Mohun, what be dirl afterwards,
hit we shaM call our witnesses to prove what
^ have opened ; and when our witnesses arc
beard, we shall leave the matter to your lord-
iqipB* jodigiDeDt.
Smuel Catctkorne^ which was the drawer
tateni at Locket's, was sworn, and gave
kk eridenoe to the same effect that he did the
day before.]
Aii. Oen, Pray, will you acquaint my lords,
Mm were at your house the S9th and noth
bf Oictober last, Saturday night and Sunday
ttnonAng?
Cawtkome. There were my lonl of War wick,
>tiy lord MofauQ, captain Coote, capt. French,
Mr. Dockwra, and Mr. Jnmes.
AtL Gen. flow long did they conliiuie
^cre?
Cnr. Till between one and two o'clock in
Kbe iDoming.
Atf. Ctn. Pray, will you acquaint my lords
>ehat happened at your master's house at that
tSae; yoa ccmember what evidence you gave
[1038
ymterday ; tell the whole matir^rncrain^ becnuKe
it relates to another nuble lord tliat is now at
the bar.
Cuu\ Tlie reckoning was called for about
that time, and 1 wcut up and took the rec^kon-
ir«r, and all the ircntlenien came down to the
bar, and coucluts were sent lor; 1 went for
tbein, but ih» coaches could be had : then chairs
were wj\l for, and I called for chairs, and there
came two chairs to the dtior, and into those
two chairs went capt. Coote and capt. French ;
and my lord M(dinn and my lord of Warwick
endeavoured to quiet them, and to [»ut off the
business till another day, and thereupon they
came out of the chairs, and came iuto the house
again; my I:>rd Mohun did desire there might
be no quarrel, and would have Mr. Coote go
home with biin to his lodgings at Westminster,
or he would go with Mr. Coote, and said there
should be no quairel that night: there were
then throe of thrm on oue side of the bar, and
three of the other side, and their swords were
all drawn. My lord of W*arwick, my lonl Mo-
hun, and Mr. Coote, were of one side, and cap-
tain French, capt. James, and Mr. Dockwru,
were of the other side : 1 was without the house
when llie sworils were first drawn ; but I heard
my lord Mohim say, I lia\e gut a cut finger by
endeavouring to part them ; and at first when
the chairs came on, my lord Mohun said, if
they did quarrel, he would send to the guanl^
for n fi|p of musqueteers, and secure them ; so
that he did what he could to prevent any quar-
rel :it all ; and when he had received the wound
in his hand, I helped him to a naj)kin to wrap
bis hand in, upon the bleeding ol it: then my
lord of Warwick, my lord j^loliun, ami captain
Coote, went away in three chairs, and my lord
Bldhim gave order to go down to SVestmmster;
and there were three chairs called for by the
other three persons ; two did come, and capt,
French and capt. James went into them ; aiid
the sixth not being come, they staid till it did
come, and then they three went away too ^ the
chairs were all ordere<l to go home with thcin i
my lord of Warwick and my lord Mohun gave
oraer to their chairs to keep close with Mr.
Coote ; find the other three chairs immediately
followed.
Ait, Gen, Pray, will yoo consider, and re-
collect with yourself, was Mr. James there a£
first?
CatL\ No, I was sent for him about ten
o'clock at night, and there he continued
with them till they went all away in the si.v
chairs, and he was almost fuddled when he
came in.
Alt. Gen, When Jiur.cs came in, was his
sword drawn ?
Cr/u. liis swoid wes in the scabbard, but
the scabbard was broken, and betook and broke
his swurd stamping upou it. ^
Alt, Gen, IVoy, ean you tell, you being up
and down in the ruuni, what was the oucasioB^
of the qi!urrel i'
Cau, Indcoil 1 cannot tell ; but some words
past when they were below staira h^ v^ji^ \siw
MR^. U'WOXIAIf UL
?rom capt, C^wte, that he wo«ld laugh when
le pkasfid, «fld IVqwd when be plea^ ; and
Mr. Ilockwra did my^ Ihat Uiey would fif Lt
theiA n'li^iierer tliey pfcafbed woe n tUey went
fw&y ; hut I did QDt observe that there was
mnj qiiarrt'l between them while they were
kbore, nor any swords dcawti till after I came
pom calling tbe chairs,
, Aii. Gen. W^re all the sirofds drawn at
pom ?
0*&', They were all drawn when i came m
irom cdllai; for the coaches ami the chair^
5nd three were with in the bar^ and three were
rilboyt ; thej^ wefe puttioi^- up their swords
^H^beo I come ID agmin ; indeed I do not Jiodw
"^ly thing of the quarrel.
L H* S. My lord Mohuji^ will you ask Ibis
witness any qfieslious ?
' L. Mohun, I ndiHd, I think I neetl not Mk him
riy qyeiition ; but yet, if your lordships please,
wouhl ask hi 01 th'isi^ VVTiether directly or in-
directly I was any way* coni?erned in the quar-
f^)f m\ whether I did aot eDdeavour all that
ever I could to quiet them ?
. * Caw. Ves, indeed, in y lord ^Hohon did ctI'
dearour alJ that ever be could to preTent aoy
l^iarrel at that time.
L, Mohti ji. 0id I say any thing tending- to
the proiiioiiog' of a quarrel or fightiBg atnooi^
them T
Caw. Ko ; my lord Mohut] did not promote
ftHy tbin«f of the quarrel between them, hut be
cliiTssy two or tbvee times^ that he would send
for the guirJ^ to secure them, and keep them
from figbtin^r, both at the door of the bouse,
and at ihc b^^r, and asked for a napkin to wi-a[i
uji his hand iui for the wound which lie said
ho i^M in endeavouring to quiet and part tliem,
And prevent their light mi^.
L. Makufi. That is nil that I would ask him,
i%helher I did not endeavour all that 1 could
to prevent any quarrelling or fi^hlinji^ at that
lime?
VaiL\ Yes* indeetl, my lord did so,
Ia H. S. He has said so already, my lord,
ftni) therefore there does not need any turther
eiianiinaiioD of bim to that point ; if tiotli siites
fiave done with this witness, let him gg down,
(Which be did.)
L. H, S* Tbeo, Mr, Attorney, who is your
next witnc>» ?
Ati. Gen. Our neit witness is Tfiomas
Browne, who wai one of the chairmen that
carried Mr. Cooteinto Leicester- fields* [Thoti
he wns sworn.]
X- H^ S. VVhat is the question you would
ask him, Mr, Attorney ?
Ail. Gen. My lords, I desire he mav he
asLl^d and examined, and ocfjtiaiut your lord-
•hipM, who it was ihst he carried fpfim Locket^s
the 21>th of October last to Leicester- fields, and
what time it was of Iho nij^bt ?
Browne. I cirri ed IVTr. Coole to i«y cliair.
Alt. Om. Whither were you directed to
earry him ?
Brtmne, To Leicester- fields,
AtL Oen^ \V\m llmfH of night wu it?
Brvwt$e, It was three qnarters paftonrfii^
near as I could ^uess*
* Au. Gau Pray, what other diaijt ii«|
there tliat went sdoiig^ with y ou ?
Brow fit. There were two other chairs,
Ati. Goi. IVho were in those chairs, \nff
Broune. There were my lord of War^tidi
one^ and my Irird Motiun in (be other.
Ail Gen, Did you three gto away fxift<
Locket's together?
Brm*n€. Yes, we did ; and when ^t tm
bid to lake up, we went to the end of 8t. Mi^
tio*ij-kne, and turniog up at the eiwl ^4^, !lft^
tin's- lane, there my lord of War w irk sad wj
lord J>lohuD called out to capt. Coot£ lu tt4|,
and to turn down to g:o (a Westminster ; i$
Mr. Cooie wouUl turn up the lane, and m\ M
of Warmck and my lord Motmn tnaiet m
at the hack door of il>e Cross- Eeyss lafwii,isl
hotb of them persuaded ^Vr. Coote to ^\ii\k4
till the next morning ; but be would aot, h
said Lie woitb] make su end of it that 0^%
Au. Gen, Pray, recollect youi^ff did iky
nime aniotig tht^m what their business wiitlni
. ihe^v would make au end of?
hrtmnt. No* Ihey ilid not.
Ati. Ccn, Who was it that stopped it St
Martin's- lane end ?
Browne. When wc were turning ujt it St
Martin's -lane end, my lortl of ^Varwid «nd sf
iord Aluhun called out to stop, autl uked Nr.
Coole whither he was foinj^f sndwhtak
taid, to Leiceater- fields, m^ lord MohaaMliI
out to us to set dowu^ which we diil. «l ^
back-door of the Cross- Keys tai ern ; ibn U
hntli of them, my lord Warwick and m^ )xKi
I^lobuii, persuade Mr. Coote t<» ^o hoyii i
Westminster, and not to end the buaw«iillil
night : but Jie would go on ; and wbUl *t
were there, there went three other chairs ujjSl
M art in V lane on the other side of tbs*ij«
thf^n Mr. Coote, who was in oiu: chair,. hii9
take up, and follow thofie chairs inio ibi^ fd^
and swore, Damn him^ he would run hiicfftii
mio t»ne of us, if we did not loske hsik, im
overtake those other chairs, and pa
tbem ; I think tu« words were, ^ Dajna ii|
* 1*11 run my sword into your breech, if yoD4t
^ not make baste, and ^t helbre that ^^
' chair,*
AH.Oen. You say then, they went «U iiiT
leather up to Leicester- Bc4 ds f
Bt€}iL'fw. Yes, they did so,
Ix»rd AMun. 1 desire he may be labi
Whether I did not desire him to g\i bovtfii
nae to my lodging- at Westminster ?
Bromne. Yes, you did^ and bcgg^ed ofhiiB
if it had beeu for an alms, that he would
for that nig'ht ; hut when the other chi
by uf atCharing-cro^i in St, Martin V!
would have the chair takeo up« and us
what haste we coulil to ^et before them I
or else, he swore, danan hica, be woukl i
sword into one of us, if we did not 101
to get to Leieester- fields before the oth
that went up tl^e other side of the wi
Au* Qcn* Wheu Ui« other chiin
Aodvou weot away to Leicester- fields, pray
1 my lards wliat happeoed then ?
Brownt, We went away to Leicester- fieWs,
jvtken we came to Green* street end, and were
-itig U]>ou tlie s<|uare upon the broad stones,
> CooUs called out to us, atid bid us to set
I fUiOTo^atidso did the otber twocKairs; and
I be put bis band into liis pocket to dis-
\ us^ my lord of Warwick put liis hand
k^pocket to pay ttie three chains, Bri<l Mr.
Otfercd half a g-iib^ to diseliarge the
atid my Ion) Mohun did produce Ss.
Lh it discharged all the three chairs, and
all three walked away togetlier forward
tbe broftd stouet, on the right hand side
be ivay ; it wufi su dark a (li^t, 1 eouhl not
hdf a dozen yar^ta from me ; it was the
: mu\M^ 1 think, that ever I saiv in all my
I and therefore I cannot tell what bucamc of
^er they went nut of the chairs,
ii«. Pray, did you see my lord Mohuo
if
No, I did never see my lord Mohiso
tarda liH now here at the bar.
iit. Gen, You say it was so dark, that you
1 not see three yards from you ; pray,
t did bappeu afterivards when you were in
; field ?
ifie^ A lillle while after we had set d')wn
; gentlemen, 1 ft I ted my pipe out of my
, and before i could fi£;lit it, 1 heard a call-
I of cknirs, chairs, and 1 weoi up towards the
r the square, where the noise was ; and
1 came there, they would have had me
e ctiair over the raits, and 1 told them, if
lid I could not lift it over a^ain : but they
L occmIs have me lift it over* and 1 did so ;
y the liorlji of the lauthorn 1 saw captain
ch aiui c:iptain Jamc!i lioldmg up captain
otr, and they did desire me to ttike hiiii into
r diair^ hut lie was in such a mndition that 1
aid not gel hitn into the chair ; it was before
oold wcUlijrht my pipe the chairs were called.
Aii. Gea. Who did call, can you tell f
Brotcne, No, indeed, I cannot tell who did
fl cliairs, but it was a voice from the upper
1 of the helds, and we lifted our chair over
Ills into the fields, and there were two
m holding up another man ; 1 have
I it said it was captain French and captain
^ J and they cried out, Dear Coote, Dear
II and would hai^e had bim gotten into
sehair, but we could not; and ray lord of
Warwick did then«!iay,if any damage did come
to the chair, though it were 100/. we should lie
pati^tied for the damage; but we wens not able
ta get him into the chair, and itiihere wo lefl
^L Alt. Gen* You say you savv two gentlemen
^Bplditiff^ up Mr. Coote, and it was a very dark
^wrbt, bow could you tell who those geDiJcmen
^^ Brtmne. I could not see nny thing of them
till we caoie up with the candle close to tticm>
Alt, Gen, And what did they say when you
tfacne up close to the chair?
Mrowne. They offered lue an IQOL tatisfac*
vaL, xtii.
1
tion for any dama^ to my chair ; but they
could not get him in, for he was at that time
dead, I believe, for we went to hale bim up«
and to get him into the chair, but we could nol
doit.
Alt. Gen. Can yon tell who the two pcrBoni
were that held him up?
Browne, No ; h\i\ by the description of tin
persons tbey had suph cloaths on, as that they
must l>e captaiu French and captain James ;
but indeed l cannot swear directly who they
were that were there, nor who they were that
catletl lor chairs at the upper end oi the field ;
but when our chair was lifted over again over
the rails, and we came to the corner to see whw
should be taken in, thero came one to us who
bid us carry him to the Bag^uio in Long- Acre ;
and thither we did g^ accordingly.
Alt. Gen. Pray, can you tell who the per
sons were that held up the ^fentlemau thejrL
ivould have to be (^ot into the chair?
Brcfwne, No, ioileetl, 1 cannot
Alt* Gen. Pray, can you describe them so
to know thetD, w'hetlier my lord of WarwicI
and my loi-d Mohun were those two gen
tlcmen ?
Browne, My lord of Warwick and my lord
MohuQ were not there, I am sure, for I know
them very well ; t was acquainted with then]
before; and when 1 came up 10 these gentle-
men with the candle, there waa one of them
was big-ger than my lord of Warwick, or my
lord Mohun ; and ihe elder of them had other
sort of cloaths thau either of them had on at that
time, as we could ^e when we came up cIok
with the candle to them.
Ait, Gen. Were there any lights of tha
lamps, thai are usually in the streets at that
lime, about tlie square ?
Browng. Yes, there were those lights ; but
it was a very dark ni^ht, and we could not see
two yards before us, that I am sure of; and
there was nobody else that I saw at lb at lime
at the upper end of the field, but those two
gentlemen, holding up of captain Coote, whom
we had brought up before to the square, and
leil him with the earl of Warwick and my lord
Mohun at the bottom of the square ; but whi-
ther they all went, indeed 1 cannot tell : wm
called watch ; but they said il was not within
their ward, and theretbi*e they would not come.
When we saw how ill Mr. Coote was upon our
comiug up, and that he could not get him into
ihe chair, we went away, lifted our chair over
the rails afrain, and carried a gentleman to tlio
Bi^oio in Long;- Acre. ^
L. Mshun. I have a question to ask thii^^l
witness, and that is, how tar the place is whi^^^f
ther b^ carried the chair, that is from Green-
street end, to the place whither the cliairs were
called lor agfaio, at the upper end of the paleSt
where he tbund the two (penllemen holding up
Mr. Coote, and eudeavouriog to gtt him up into
the chair ?
Bntwnt. I believe it is about filly yards
near as I can guexs.
L* Miilmn. I desire to ktiQw» whelher
3X
lOMt) ll,4?IUiAM IIL .
low tad •fMioiMaril^f
JUJIbAiiii. ' I deure to aik Un, whetiicr
^n^t^mfmthfb affiUwfery fcNmcilidoribe
J^wM, . Yiii «iy loiri, Um lovtr cod of the
Mi of 81.. MMlbi^-luie into
«a«MrAr
Old oriln
jm. 6^. But did yoaaw
SlitMplMer
; JBfWM. Ycfp whik I wai filli«f ny pine
Ml of w b9K» tl«rw tjthtf ibidm dideamo l7»
SWMt Awi^ } bnl wkhui a Gllle while aftw
fiUiflff oC JDV MM, or ittthfer bofera I ooaM
w«U lUnt, or IH^ it» wo hcoid
choin agaui, towudo. tbo Qpoor
fiddiLOBd wo omiod spoor d
•ndtboro wofoondi at 1 Iwfo MM jon,
genOonen |iiili%^ op If c Cooio^ oad d^
oat; my dew (M&i my dooir Coiloi
JK^ Gm. Goa yoa laU wiM il tmolhol
fldW 4br tlm.ohoim flm ooeHidliifeek wIm
yM^tmiBlboMdof .
BrowM. Np, ittdeed, I eamwl; M Ih&f
ifi^hf^fm affariur odroMr ofor tiw nOi,
•■dwodidr
IHftil
lnhM wot
did AMI
w oahr two
who ihOT wofo portibiilttly^ till
to Aemi Ihilwo ood.ooo
Mlhi» Iqrtho lighior thooMdloifi o«
telhoni I oBd .th«j would hofo .hod «■ pot
Mr. Coolo hrto oor dioir, ood ho hdoy voiy
moefa woonded, they would hafo had oo carry
him away ; we told them it woold apoil omr
chair, and we coold not beaidei lift him over
the rails again ; they promiaed we should have
any satisfeption for damage to oor chair, even
to the value of a hundred pounds ; we went to
heare him up to put him into the chair* and
did all we could to have got him into the chair,
hut we could not ; so we lilted the chair ovet
the rails aflaio; and when we canne to the
comer of Uie rails, at the way that goea to
IxMlg-Acre, there we took up a genOeman,
whom we carried to the Bagnio in Long-
Aoro ; we called out to the watch} but they
said it was not within their ward, and they
woold not come.
Ait, Gen, Can you tell who Were the per-
sons that were at the upper end of the fields ?
Browne. No, indeed, 1 cannot tell who they
Att, Gem, Waa my lord Mohunand my lord
Warwick the two?
Brmone, No, my lord Hohnn waa not there,
nor my lord Warwick ; I know them so well,
that it could not be them ; one of the gentle*
men was blgfer than my lord of Warwick, and
the other of them had other deaths than my
lord IMlohun.
Att. Gen. Was that the way they walked
up, whep they came out of the chairs, that
led to that end of the fidds Whera yoo fbdnd
Mr. Coote wounded ?
J^rssMw. Yesyitlrao.
rfwIlfXtfrrfATifcOii
AU^iOtiL My tei^tlH
ofthoofidcobo thaftlwfOfdtoyooi
X.Mb««». J
Ibr ia-tfao ilooo Wfaon he
fliat mto Lnesakr^Mis, ft
tboy Mofor tho drioir wilUo Ibo
woold hm tilkco m M&Oooaar
ItiiahooliftyydniBvo
LTjmod.. I deauwio kaOorofUi
thApiaoewlMwo woro oRlrdohra,
10 die fint tkne ohoho, frooi Lo
Lakiatsi flffida, to the plaeo Whon
Mr. Coolo aop^MKlad hy the two gee
flot ftooi ooeeodor the fidds to the
Brotme. Thofloeewbeaowoaet
tamCMaiaoldw lower Ood of Oi
and the place where wo found hin
WMOtUie^iporoodhy
JL B. 8. I tUok it ia
leooi is at ooo eod ef Uikooltr e
liiioeBtir hooeo io at the
Ait Gem. Pimy, where waa it thi
the two ileotleBieo hoMtfagnpeoy
ondoiyout, nay door Coole 1 mwd
BroMi. It waaoo 000 aide oTthe
thotleoda eot of the i
ainotf end by 1
Jit. Geo. "Botyooeay tkroo eh
up towards the upper end of the fid
Browne. Yes they did so; but
chairs that came away first from the i
tavern, set down at Green street e&
three gentlemen that came in oor c
up the pales to them ; but whither
I cannot tell, hot soon aAer we he
for chaira again, and so we went
we found the two gentlemen hoidii
Coote, and saying, my dear Coote
Coote!
Att. Gen. But when yon were
second time, that is, into the fidds,
the place yon say that ;f on found th
Browne. It was within the reils,
the cross-way towards Leicester- boi
L. Mohun. Pray, was that the
that I went from the place that I wai
that is, the lower end of Green stn
place that they afterwards went Io,
the bagnio in Long Acre ?
Browne. When captain Coote, an
Mohun were jset down, and walked i
the paved stones of the square, ti
where I found the two ^entiemeo \
capt. Coote, was the quite contraey
the end of Green street to tbeSlaod
L, H. S. Who is your next wj
Attorney ?
Att. Gen. The next witneaalhiii
Robert Applegate. (Wll^l
L. H, S. \\ hat do y ou ode lUl «
Att. Gen. My lords, thm fer -M
for ^e Murder if Richard CootCf esq.
A. D. 169d.
rriedmy lord Mohuo to Leicester iielda
socket's ; he will eivc your lordships %n
it Hheii he carried kiip, who )ic carryed,
lat happene«i attervtards, which is all h|it
same |»iir|»08e with the eiidence tliat he
yesterday. But pray, who was that
vou carried oo the thiitielh of Octoher
Leicester iields ?
legale. J carried my lord Blohun fropn
.*s, at the Greviiouod tavern in the
, to Leicester fiefds.
Gen, Pray, how many chains were
f you that went away together ?
Ugale, There were three of us that went
ogether,' one carried on v lore) Warwick,
lord Mohnn, and the third carried cap-
lote, which was the first chair that went
Gen. Whiiher did you go ?
legate. We went to the comer of St.
*s lane.
Gen. Who do you say were in the
in'o chairs ?
legate. My lord of Warwick, and my
ohun.
Gen. When they came out first, what
or directions were given ?
^^ate. Mv lord Mohun said, Tliathe
r lord of Warwick, and captain Coote,
go all three together down to West-
-,and there they would all lie together,
tfifcther tliat night.
Gtn. What answer was given to what
i Mohun ftaid ?
'tgate. Indeed I do not rememher any
that was given at all ; but after that
1 Mohun went into the chair, and or-
is to follow down the other two ctiairs
I Westminster, and we put up the chair
me awa V ; and wiien we came to St.
's bne, tne chair that carried ca|it. Coote
up the lane, and we heing oniered to
the other chairs, went up Hie lane too;
lord Mohun perceiving that they were
ig down to Westminster, called out to
st when wfi were entered into St. Mar-
ne, ov«r against the back door of the
ceya tavern, and matle the other chairs
d, mid all the three chairs were set a-
bdbre that place, and my lord Mohun
apt. Coote, whither he was going? And
rered, to I^cester fields: He begged of
I one would beg for an alms, t£u he
lot go that night, for the business could
tone that night, and it was better to put
: ibe ne^ct morning.
Gen. Did they name what the business
It wu to be done P
pgate. No ; but my lord Mohun did say,
inpossible to lie doue that night.
Gen. Well, and what happened afler-
»hile you wens in that place ?
tgflte. VVhile we were there, three other
mted by us on the oiher side of the way,
ioff forward up the street, capt. Coote
tSeir chairs to follow, and so we did to
Inft ^1 wi thcim we let them down.
[1046
Att, Gen. Prav, can yoq remedaber what
was said by my lord Moliun at the time when
tiiG other cpaira passed by ?
Appiegate. He was then desiring and beg-
gipg of capt. Coote tp go home to Westmin-
ster, telling him that ft could not be done that
night ; but it must be deferred til) the next
morning ; but capt. Coote said he would not
delay it till the next moruing, but he %vould g(»
to Leicester fields that ni^ht ; and all three
chairs were ordered to go forward, and we did
ffo on forward to Leicester fields ; my lord
Alohun, indeed, did beg ^nd desire as heartily
as, 1 say, a man ibr an alms, that they would
let it alone for that night ; but capt. Coote
would not, and ordered his chair to go for-
wards.
Att. Gen. You say, my lord Mohun begged
as heartily as if it were for an alms to defer it
for that night?
Appiegate. Yes, he did so ; so that I d<K
really think that he was not concerned in tb«
matter.
Att, Gen, If be were no earnest to defer and
put off the business, how came you to carry
iiim thithor, Uiat nig[lit ? Whet ezpressiont did
he ose |iarticulariy m St. Biartin's lane, after
the other chairs were passed by ?
Appiegate. Hesaio, If you must go, I will
go witli yoii and see it ; and he bid ns take op
and follow the other chairs wherein capt. Gooto
and my lord Warwick were ; and we did |^.
Att. Gen, Aud where did you set my lord
Mohun down ?
Appiegate. At the hither end of Leicester-
square, at tlie corner of Green-atreet, the lower
comer of the paved stones, going up to Leices-
ter-bouse.
Att, Gen. What became of the three gentle-
men that you set down at the end of Green-
street?
Appiegate. They went all three together up
the stone |>avcment, towards the un|ier end m
the square, towards the Standani tavern, I
tiiink.
Att. Gen. Did they go together, or did they
go asunder?
Appiegate. They went tocrether, 1 think ;. I
did not see them part one from another.
Att. Gen. Pray, did you see my lord Mohun
afterwards ?
Appiegate. No, I did not.
Att. Gen. What became of you afterwanis?
Appiegate. I staid a little at the lower enil
of the square to take a pipe of tobacco, and
when I had filled my pi|)e, 1 heani calling
chairs, chairs', nsrain, at the up[)er end uf the
scj^uare ; and when we brought up our chair to
the upiHsr eud of the fields, the first man that I
did see was my loni of Warwick, who would
have had us- put over our chair wiiiiiii the rails ;
but we told him we could not get it over ai>aiu
if any one was put in it; hut if they would
come out into the square, there we were ready
to carry them any where ; and when we came
to the upper end of the stpiare, tliere was cap-
tain Freocb, and we tookbiminto thaohair,
\
I
1043J 11 WILLIAM 111.
nueans fiHy yards frum the upper end to the
lower eud if Leiix^ter fields?
Browne* Yes, 1 b^lierey my lord, it is, and
l>ettpr.
L« MohuH, I desire to nsk tiin^ nlitrtfier
Oreeu-stretft be not the VQty Iwnrer ttid of ihe
fiqunre?
Krtfii^iKp Yes, my Ion), tbe lower end of the
ii^utre, combg mil of 8|. Martin'it koe inlu
Grcea-4treel»
At L Gen. But did you aee tliree other oliaira
ia tbuliiluce?
Bfouate, Yes, wbile I was filliiij? my pipe
oot of my box, lliree other chahs did come by,
and went away ; kit within a little whde aftCT
the filfing of luy pipe, or rather before V coidd
well fill it, or light it, \Te beard cnHioff for
chairs again towards the upper end ot tbe
fidila, and we Cfirried up our clmir tbitber,
atid there we fouodp as 1 hate to]d you, two
j;eiulemen lioldiog up Mr. Coote, aud crying
out, rny dear Coote, my dear Coote 1
Aft, Gen. Can you tell who it was that
callfid for the chairs the secimd time, wfaeo
you were in the fields?
Browne, No, i a deed, I caiuiot ; but they
would hate us bring our chair Of er the rails,
and we did lift it o?er ; and when we came up
to them, I saw only two get]tlen>eu, whom 1
did Dot koow who they were particularly, till
we oame up dose to them, that we could see
their cJoalhs, by the light of the candle in our
laothom ; and they would have had us put
Mr. Coote into our chair, and be being very
much wounded, they would have had us carry
iiim away \ we told tbetn it would spoil our
chair, and we conld not besides lif^ him over
the raiti a^ain ; they promisecl we should hare
any satisfaction for damage to our chair, even
t4> the value of a hundred pounds ; we went to
heave him up to put him into the chair, and
did all we could to have got him into the chair,
hot we could not ; so we Itfled tlie choir over
the rails again ; and when we came to the
coroer of the rails, at the way that goes to
liOng-Acre, there we took up a genUeman,
whom we carried to the Bagnio in I«oug-
Acre; we called out to the watch; but Ihey
iaid it was not within their ward^ and they
would notcome*
Ait, Gen. Can you tell who were tlie per-
sons that were at the upper eud of the fields ?
Browne* No, indeed, 1 cannot tell who tbey
were.
Ait, Gen, Was my lord 5fohunand ray lord
Warwick the two?
Mrotvne. No, my lord Mohun was not thefe,
aor my lord Warwick ; I know them so well,
that it could not he Uiem ; one of the ^pentle-
men was bigger than my lord of Warwick, and
tbe other of them hod other cioatbs than my
lord Mobun.
Alt. G€n. Was that the way they walked
up, when they caaie out of the chairs, tliat
led to that end di the fields where you foilnd
Mr. Coote wounded ?
Loduil
TmA of Lord Mohuff, [ IMt
Ait, Gen, My lor4»t tItiaiatolllMi
of the evidence 'that be gA? e to i
yeaterday.
L. H, S. If yoQ bare t]mm whh tb«
ness; my lord Mohuo may a^k bim miJ<
tinn*.
L, Mohrr ■ I"--" *o t'.^r^ Uiijo nb«i|,|
fnr is ihe ri^dlliefW
llrstinto Ll.-_ -- - ili«plami
thi'y put over IhL* cl' - ndfev
would have taken in ^
Brtmne. hvt aboua itity jrttruK ^ near »l
iTan guess.
L. Mohun. \ desire to kno w of biot, wb
the place where wc were 9'*t dawsL, thai i
in tne 6rst three chairs, from
Leicester- fields, to the plAce wji
Mr. Coote supported by U., ' _ ntJe
not from one pnd of the ii' others*
Browne. The place whLi^. .. ^ ^^idownc
tain Coote is at the bwer etid of Gr«e&-ttn
and the place where we fotmcl him W9aM^
was at (he upper end by l^eice9Ur-b4»aH.
X. U. S* I think it is uodentaadi
Green-itreet, which comes out of 81. F
lanej is at one end of Leiceater-a^iavi, i
Leicester-house is at the other ead«
Att, Gctt, Pray, where %nis it thai yeiil
the two gentlemen boldtnfr up cmpttainCaii,
and cry out, my dear Coote * my clear Coat K
Browne, it was on one side of Im ci
that leads out of the fields tovfmrdt
street, and by Leicester house.
Att. Gen, But you say three obmiva ^pt
up towards the upper end of tbe fi^a f
Bromne* Yes tliey <Hd ao ; bill oar
chairs that came away first from tb^ Or _
tavern, set down at Green atreet eii<l|
three gentlemen that came in i
up the pales to them ; hut whitber
I cannot tell, tot noon after we h^ifid <
for chairs again, and so we \\ <
we found the two gentlemen '
Coote, and saying, my dear Cooie : my i
Coote !
Att* Gen, But when yon wero
second time, that is, into the lields, wh
the place you say that yon found tbem i
Broi$ne. ft was witlnn the rails, i
the cross-way towards Leiisestet-!!
L. Mohun. Pray, was that tii4l
that I went from the place that I wm
that in, the lower end of GToen
place tliat tliey aflerwatds weal to, i
the bagnio in Long Acre ?
Brovne, When captain Coote, atid mf I
Mohun were 5et down, and walked aw«y i
the paved stones of ihe i»<|uare, to tbe I
where I found Ihe two ^^cntletnen boMinf s^
capl. Coote, was the qmtc contrary way mm
the end of Green street lo the StaiMkrtl feati
L, H, S* Who is your next
Attorney ?
Att* Gen. Tbe next w tineas thai wm rsR,
Robert A piil egate. ( W h o i
Xr. H. S, Vf hatdo ^ou a«k this wttiseas ?
Mt. Gen. My lori?, Ous uMbe
J013J
/of t^c Murder ofRiclmd Cootet esq*
t)if| canjed a\y lore] Mobuu to Leice^li^r 6elds
" [>ni Locktrt'ik ; be \u\\ m«o your 1oT(f$hi|)^ gn
HM)uut vUvii liecarryeu^ljin*, wlio tic carry cil,
hvbat ha^ipc'ueij atteruuiits, whicb h h\\ U\il
(Sjiune |Jiirpu£;e ^villi Ibe cudt'tice that be
^ye«ten!ay. UuX pray, whti >*aii tb»t
> d on tbe ibirtiefb of OctuWr
ppki^iiit. i carried my bid HioUim fnnn
cker&, at the Grevd^'und Uveru in tbe
ntid, to Leicester fierils.
\^AU. Gen. Pray, bow many cbairs wefe
^e of you tbat went auay together ?
^ AppUgatt. There were thrtt; ut'iis that went
iiy loaf ether, «joe carried Rjy lord ^Vanvick,
' my lord IVIohim, and the third carried cap-
\ Coote, which wa^ tiie Ikbt chair that weut
AiL Gen* Whither did you ga f
App legate. We weol to (he corner of Hi.
'anhi's lnue.
^Ait. Gen, Who do you say were in the
ber two chairs ?
I App legate, My lord of Warwick^ and my
' MohuQ.
WJteti they came out A rat, what
ections were q-iveti ?
^- €* Mv lord MohuQ paid, That he
lord of War^>ick, and captaiD Coote,
{^.£0 all three together dow» to West-
r^and there t bey would «]t lie tug«tber,
ni^eUier that iiighL
fi.G^n. What nnswer was given io what
_ i^rd Mohun paid?
''Applefrate, Indeed I do not remember any
answer that was given at all ; but atWr that
^|y lord IMohuD weut ioto the chair^ i^nd or-
^Bred us to follow down tiie other two chairs
VRwards Westminster, luid «e jiut up the cimir
mxui €ame awav ; aud wliea we came to Hi.
rtiu's lane, tbe cliair that carried cafit, Coote
ufHt up the laue, aud we beiug^ ordered to
the other chairs, went up the lime too;
; inv lord Mf^huo pcrceiviug that I hey were
Igviugdown lo W earn iuster^ chilled out to
p, just when wc were enlered into H\. Mar-
ias lane, over ag'ainst the back door of the
h^n)s»-keyv ta? ern, and tuado the other ciiaira
JtQ ftaud, aiid all the three chairs were e^^t a-
Jiresist beibre that place, and my ioitl 3Iahuu
tol ci^tt. Coote, whither lie was ^oiu^f Aud
f aoswcredf to i^icestor lit Ida : He be4^g;ed of
aa one would beg for an ftlmi, tluU he
L not go that uiu;bt, fi^r the buBineaa could
'one lis at ui^Ct, and it was better to pul
I the next niornta|^.
f^tt Gen. Did they same vibat Ibe busioefls
, that was t<i be done ?
s hut my lord Mohun did aay,
CO he done that uii^ht.
^ft. Utn. \^ I'llf aud what bappt-ued after-
inrda, while you were in that place ?
Appl^gf^ie^ VVhile we were there, three other
idliaira pBiKed by us on the other side of the way,
goiDS' forward up the atreet, capt. Coote
1 tCeir cbairs to foltowi and so we did to
\ iUre^l cRd| ^d there we Bet then) 4owu.
A. D. 1609.
cat! yi
IVIuhll
Pray, can you retnember what
mir irn'il IVIufum at the lime whoa
?
[lOlG
Att. Gmi.
was ^.niid U^
tJiCr
^1;^ KU desiring and Uetf-
ging qI oapi' Cuute tp gii home to Wesfuiin*
ster, (elling^ him that it could not be done tha^l
night ; but it mu9t be deferred till the next f
tuoraing ; but capt. Coote said he would not J
delay it till the ivejtt moruiog^ but he would j^I
to Leicester tiehb that uig^fat ; and all ibree ]
clmiri were ordered to go fo^-ward, and we did I
go Oft llirxvard to Leicester fields ; my ton||
Mohim, indeed, diti beg mid desire as bcartiljrl
ft:s, 1 !»iiv, a tnan for au almsi that thuy would^l
let it alone fur iltat night ; hut capt« CooteT
wduld not, aud ordered hia cb&ir tu go for- I
wards*
Jti. Gen. You say, my lord Mohim be^ed 1
as heart ity aa if it were lor an alucia to defer It
fur that tiight?
Apj*itgtite, Yea, be did so ; ao that I do
really thmk tliat he wm uut concerned in i
ftialter.
Au, Gen. If he were so eameat to defer i
put off the business, how came you to cany
biui thither, lljat night ? Whet ejcpressiona did [
he use partictdarly io St. Mariin^s lane, after \
the other chairs were passed by ?
Apphgate, Ilesaio, Kf you must go, 1 will
go with you and see it ; and he bid ua take a|»« J
and Ibllow the other cbaira wherein capt. Coot# [
ami my Jord Wiirwick were ; and we did go.
AiC Gen. Aud where did you set my lor^l
Mohuu down?
Appk^ate, At tlie bitlier end of Leicester*
square, at ilie corner of Green* street, the lower j
comer of the paved atonea, going up to Leicea-
tcr-houBc.
Att. Gen, What became of the three eeutle- !
u^en that you eet down at the end of CSreen-
atreet ?
Applegate. They went all three together up* I
the ttioue [tavement^ towards the upper eudoif ]
the square^ towarda the btandara taveni, 1 1
li&ink.
Alt, Gen. Did I hey go together, or did they ^
go a«iuodcr '.
Apple^nte* They went together, 1 tbiok ; 1 ,
did not sue them part ime fi-om another.
Att. Gen. IVay, did you see my lord Mohtia i
after ward** ?
Applegate. No, I did not,
Au. Gen. What became of you aJ'ier wards ?
Applegate. 1 t»taid a little at the lower end
of tne square to take a pipe of tobacco, and
when 1 had filled my pi})e, 1 beanl catling
chairs, chairs, nii^ain, at tlie upper end of the
iM|uare ; and when we brought up our chair to
the upper eud of the ficld», the first man tliHt f
did see wa» nty loni of Warwick, who would
have had us puiovcr our cliair wiUmi the rails ;
but we told htui we could not get it ofer a^aiii
if any one was put in it; hut if they would
come out iuto the square, there » e were reatly
lo carry ihera any where i and when we i
to the upper eud of the sipiore, tliere i
tain French, and ure tovk kini into ilm i
I
1047J 11 WILLIAM IlL
and be lid us carry bitn to the Bagnto io Xj>ng-
acr« ; an J at Newport-street eod be woufj
bare had us stop and pall off bts doatbi, for be
beliered be was a dead man*
An. Gen. Pray, wbo df4 you see tbcre at
the upper end of Leicesler-fields?
Applt\^atc. INobody indeed, but my lord of
Warwick and Mr. French.
An, Otn, Nobody bot ibem two?
Apptf^alr, No; nobody bnt them two.
Ait. Oen. Where do ymi say that was, that
the Crtllirtj,'^ for chairs was, nod wbere yoii
broug'ht your chiiir? '
Appk^aic. U was just at the npper end of
I>ei<5esler-field8, by Leicester 'bouse, aad by
the 8tandard>-tiiverii.
AtL Gen, Who was it that you there took
Applf^att. It was captaio French.
Ail. Gen. Wbilher then did you carry birn ?
Applegttte. Wo were ordered to 50 to the
Bagiijo \r% Lonn^f-acre ; ami tbiib^r we, and
MkOtber chair that carried my lord Warwick*
did ro \ and when we came there, wc did
ICDOclc a good wtiilc before we could get any
body up ; and when they were let in, we came
Away, and were bid to call for our fare tbc
next niorntngf.
Ait. Gen. Pi^Yp where was It that you took
up captain French ?
AppUgate. It was the upper end of all of
Leicesler-lields.
AtL Gen. And yia went away witb bino,
did vou?
AppUgaf".. Yes, as soon as crer we took
bint up; It wa« afi soon as ever we could, at
the outside of the rails. 1 was the fai'st chair
thnr^ upnu the callinj^ for cbati*^ arter tliey
came lliitheri wns by tite Standard- tavern, and
troui tbetice we went into Lon<;'Ucrc.
Ail Gen, Wbereaboni is the Standard -la*
^ern?
Appkgatc, It is at the further end of the
fields by I Leicester- bouse ; it is by Cmnburne-
lane, which is the strcet that leads into New*
port.street, and so into St. Martinis-lane ; and
then we were to go to the Bag^nio in Long-
acre.
X. H, S. My lord IVIobun, will you ask this
witness any questions ?
L. ASohun Yes, my lord, I hnve a queslion
or two to ask hira, 1 desire to ask liim, Whe-
ther, when wc were ^oing a!ong» and the cbau*
in which capt Coote was, tnrnerl up St. Mar-
tin*i!'liine, I did not eati out to have bim slop,
and know whither they ijrere gointr ?
AppU^att. Yes, my lord, you did*
*^L. Moh%n. Pray, whither did 1 bid you go,
when you first look me up at lyirk*?!'*; f
AppkguU. My lord Mohun hi*! me follow
all \
and lie together that nii^hi.
L. Mohun, My lonis, I desire this man may
be asked, Wbclher there were not several
ways of going out of the liehls, besides those of
CrFeeu-titreei and ibe IStaiidiinl-Uvem P
Trial of Lord MohuMp
ibo^e chairs; bnt go down Io Westminster,
for he said I hey all ibree would go together,
Applfgaie. Yes, my lonit l» ^
L. Mohan, Then I will tf*fe gk ^
lordsbira to make the oliservatMo; i^^%
no evioence that I was eren ^een t8
nfler 1 alighted out of the chair at (
end; aod^l hope vourlordsliipiidafi
be has told you, I was e^
tain Coote to defer going to 1
Ihe next moniiog, and l>egge«l as ^
bim for it, as ai^y be^^gnr moM 4o I
alms.
X. H. S. My lord, tb^tr lonkbips, wi »
bare made that observation ; for bMC^ did «
L. Mohun. My lords, 1 have tio matt
bim.
L. H. S, Mr. Attorney, who is
witness f
Att. Gen. Otir next witness t< Peter ]
who likewise was a cb&irmiii that
loni Mobun into the place wliere the I
done.
[Peter Ketro was sworn.]
At(. Gen, Pray, will you acquaioli
who you carried upon the 30ih of C
from the G rey hound 'tavern to Leio
Ketro. V[mi the SOth of l>cloberbil,kli]
morning (which was Bundav) v«rv e«iy,<
were call«»d to the door ofr the (jreyboti^l
tavern, and when we c^me tbere, tUm mm\
sererat other chairs there ; for Ibere mi
coach, it seems, to l>e had.
An. Gen. And who was in your cbair?
Keiro. My lord Mohun ; and tbcft <
two other chairs that wc nt *way
wherein were captain Coote and mj I
wick.
Att. Gen. And whither did yo« g§
theoce f
Ketro. We went along the Sirmnd, i
we came to the end of St. Alartsfi*ii.|tac^ J
chair that oapt. Coote was in, we
by bis order turned up the lane ; fof
Mobun had gi?en us order to go
\V' cstmiufiter ; and then when \
to the en J of St. Martin^s-laop, he
to &top, and to have tbe other chairs slnpl^i
they stood still at the back door oflbe T
keys- tavern, which is at the end orf T
lin*S' lane, and all the three chairs did 1
stand at that place, and my loni c^f
and my lord Mohun and C4iptinii C<iote
together ; and my lord Mohun did i
Coote 10 go down to Westminster,
off thebusioess for that night ; tur i
bosiness could be done : then my I
wick ilid soy, if they did go on lie
with them; but my Ion) Mohun did 1
to iiersuade them to go down u> ".
Kludge, for nothiujg could be don<
when the other three chair* f>iuiMj4j oy,
other side of the way, and captain T
neeils go tbrwtirds to Leicester- fielda, i
Mohun did hid iis take upaud fidl^w ibem f I
he said^ if they would go, he wookl |pe i
what OMiie of it ; so we took op, and ft
tbt^ber chairs, and went
s^^
— street, to the lower end of Greco -
%. the squftie, and there our three
ftown my lord Warwick* my loril
^nd captain Coote^ and vrere dis-
?- ?». And what became of Ibena after ?
"There they went np upon the hroad-
tnwardi^ the upper end of the iiehls.
^^^^^^^^Ji. Did Ihey ull go together, or did
^^^ ^* "They went together, for any thing- 1
^ saw no partrnsf, and indeed it was so
vt^*"^^**^ that I cannot tell what hecanie of
^ J?"^^«'they wont out of the cbaira : It was
£. ^W « tlarkesl Luirhts that e»er I saw,
pjltt CL^cw. Wtll then, pray, what happened
*^^^^ ?
***^o. i went to light my pipe of tobacco,
l»«ft)re we coukl light a pipe of tobacco,
\^^^ caUioff at the upper end of the square
^eiiairs again ; and «o we went with our
f to the upper end of the fiehh ; and when
catne there, somebody called out to have
us ^Ht our chair over within the rails ; but we
I tljem, if we did so, we eould not ^et it over
iigfttn, if any body were put inta it ; and so we
wett bid lo go to the end of the rails, iu order
lo the getting out from that place, and getting
in uf any body that was to go into the chair ;
and When we came to the end of the rails we
look up capt. French, and he hid u*> carry him
In the Bagnio in Long-acre, and we did so;
p and at Newport- street end he would bare had
^^is faaTc pulled off his cloathi, for he said he be-
^■Mrred he was a dyin^ man ; hut we canied him
^K»o to the Bagnio in l^ncf-acre, and tfiere came
^^»fler us the loni of Warwick in nivotlier chair ;
». and there we set them down.
Aii^ Gen, I have a question to ask ytin,
. frieiid ; did you not see m^^ lord Mohnn after
jfM S€t him down at Green -street end ?
Kctro, No, indeed, not 1 : 1 did not afker he
wrnl out of lh« choir.
/fif, Cen^ Can you tell whither he went
afWr he went out of the chair ?
Keiro. Nov 1 cannot tell whither he went;
ih^y alt thi'ee went up the paved stones toge-
ther ; but whither they went 1 cannot tell.
Aii. Gen. Bid you hear of any other chair
tiMt was at the end of the fields at that lime P
Ktiro. There was another chair at that time,
«1 the upper end of the Belds.
Jktt* Gen, Did you hear them desire to take
Mr* C<K»te into that chair ?
Ketro. No, 1 did not.
Att. Cm, Nor do yon know any thing of
tli«ir putting Mr. Coote into a chatr ?
Kttrt}, No, indeed, not I ; what they did
ftg to the other chair that was before, they can
belt tell, for I cannot.
Jl B. S* Who ii your next mtnesa, Mr.
Attorney F'—ilrr G^^n. Richard Edwards.
L. H. S. What do you call him to?
Aii* Gen. Because we would not trouble
^our lordships with the repetition of every one
of the witnesses that were here yesterday ; this
Ibllie ima Ihtt carried Mr. Dockwra into the
^Md
[Edwards was sworn]
L. H. S, Mr. Attorney, What do you tak
this witness ?
Att. Gen. Pray do you acquaint my nohlo
lords here, who you carried in yonr chair to
Leicester*6e1ds ?
Edwardt. Indeed, I cannot tell ; th^re were
three chairs that took up three persons at tha
C>rey hound 'tavern in the Strand, afler thre#
other chairs were ^one away, and every otie
had a g^enUeraan in them; 1, for my part^ did
not know who was in our chair ; hut when we
shut up the chair we were hid to go to ihe
Standard -tavern in Leicester- fief ds ; and thither
we did go, and there we set down the gentle*
man that was in our chair, and away we went ^
and as we went up St, Alartin's-bne, we poss^
ed by the three other chairs that turned up bo-
fore, at the back-door of the Cro&s-keys ts-
vem.
AttnGetin Did you see the other three chiirft
in Leicester- fields' Afterwards ?
Edwards. No, indeed, I did not; but went
up to the Standard tavern, and set down the
gentleman that was in our chair, and there left
him, and went away, *
Att.Gen, Pray, can yon tell who it was
that you carried ?
Edwards, Indeed, I cannot very well tell|
hut 1 believe it was captain James, or llr.
Bockwra.
Att, Gen, When yoti came to the Standard-
tavern, pray, what happened ? What passe<d
there ?
Edwards, To the beat of my knowledge, I
took hold of the knocker of the door ; and
knocked at the door, and tbe gentleman camo
out and was set down there : and he j^ave me
a shilling, and away I went with mt chair.
Att, Gen^ When you set him down at the
Standard 'tavern, pray, what did he say ?
Eduard^. He ffave me a shilling, and bid
me go about my business ; and so we went
away.
Ait, Gen, Was you there when yoti heard
them call chairs hack ?
Edwards, No, we went away aa soon as we
bad set him down at the Standard- tavern.
Att. Gen. Did you observe which way they
went after yon set him down ?
Edwards, No, indeed, I did not ; I never
minded which way they went,afWr we set him
down.
Att, Gtn, Which way did you go f
Edwards. Wc went away down towards
Charing -cross.
Att. Gen. Did you see any otbor cbaun i^
the iquare when you went down P
Edwards. Yes ; tliere were other chairs at
the other cud of the square.
Att. Gen, Did you see any gentlemen as
you came down^ walking towards the Standard
tavero, upon the pa ved-s tones .
Edwards, No, indeed, my lords, not tlitt
1 remember; hut 1 did see the other three
chairs as 1 passed by Greett«otreet end : who *
p
Xnd of Lord ^ahuuf
4^u Ctn^ ¥ou koovf my M VbAm,^
jdii ? — Jachan. Ye**, I do, Tcry we31-
/in. Gctt. W«0 not mj )cic4 Mc4ua ii
Jttcks0*t. He i^as, whf n flifl jdi <^te"Ufirf^
c^cd ti» liOtikei'i; ; i^tit I tljil nut be»r »4» ^^^
^oumTt ibtti J can r«mi5ii»l«f, lb I
«[ncfiig Umiif oor 4o I kuow^ or did 1
^lU. Gtn. Were lliose tbe uUier du
tliftt w«^nt ttiyay iVooi Locket'* ttist, »
Hiw At Ctrceu lirett e&d ?
Jackmn. Inde^di my iord«| I baik^
eatiucit sw<»ar i:h«ttl)ey were iho^ thr^
wJicD we ItAd set dowsi ca|iUjii Jsuiu^^
tiot btik back any wiiy dt ail, but iri
bums, it Iremg- sii kle :ind £o dork.
L, If. S, My Jyrd Mwbuo, wM yor^
witness Auy qoestioQS ?
h. 2IcJmn. No, my Inttd*
4^* Oen. Tbcn, my brd,Mre«li^> ^^ »^/
Imill SaJinoni wbo wis tbe surg^dr^zk^^^^c^a
aejLTcb the wound by ibe eorodtr^i .^^ ^£ c^
when he took t^ie iqf^uisttbo upon v .« i||£
tbe body* (Wbo w«s swarQ.) ^
Mr. Caute mJler lie was d^nd ?
^ilmoH. Ye», I did fie it bis
command of ttte coroner ftt tlte «rp
where it by in S(. M^rlin^s bne.
^1^^ G^. Pray tben, wilJ youi*^^^ *^
lcird» t*hfi ii'ounds 3011 Ibynd yjwJD r *^* |!
the
proUi,
and four or live Lriches deep donQ
fklbci' »as a nouod that was in Uh k^*^
uoder tbe sbort ribs, and thai vm& up ^
upon pi'oUing of it, 1 fouud it wa« ^
breadth of an iocb at tLic or^tice, and
depth of ti¥e or frlxiucbci?, and ^ii
the dUpbragipia. ^^
J(^ Gen. Pray I did you obserfc o^^^/^
ence in the wouuds, oriu the orifice i^^^^/
8nhtion* That below was a targ^ ^^
largiT tt^an |hf Qtb^r.
Iti. Gcti. y(tvt t^e wou|id§, ^ ymftM
given ^'itjk tno eword^i or with one iv«{ 1^
&aiiie A word f-^^/ifu^n* I ndef d, 1 p^pM ^ .
4h. Qe^. Did you lo<>k upop ^h^^^
which of IhecQ, to ba murtjit ?
Saimon. I looked upoD b^tit to be Q^oitaL
1h li, lif. If yf)u bare do^ie wiih )iiiD^Mr,
Attorney, will uiy lord A|ob)jQ ask tni^ vkj
questjorig F
L. i^fohua. 1^0, 1 ^batl ask him n<i t^mim^
for t thiuk 1 nefd EU^t : I was never pri^c4 v^
be io the comp^Dy, lu tbe plaice where tin
fighting w^i,
AIL Gen. We hare done with f^dliiw 4
witness^, till we hear what my tord %^bm
says to it.
L. H. 5. BIj lord Mohun^ tfiis h ik
lime (the kioi^s evideuce beii|^ Quidn^) ^
you to call your witne&«e&, aqd make ^m^
defence.
Ii. M^^n^ Ws IfV^j A ^M^ ^ j^ fsmi
I
w«fii ifl tbe^p or what was liernme of them
IhM wer« in fhrrn, that I caunut Udh
jitr. Gf«. Wbut did ihe^ af.^ ^o yoi| any of
ih«m ml tbat titne P
, l^iwardi. Tb«;y a^ked u| If we were ^itiif
ftwmy, aod we told iheu) ^^^ we wi^r^ 4^^-
cbariftid,
Ait. Otn^ But pray, did you ngi meet any
«f ibe other feAtlemeo upoo the paved stoi^es f
MdirariU. No, iudeed, i did not see, to the
be«t of my remeip^i^liee, any other g^mlli^man
lip<^n the parted staue^.
Ait, Gen* What did tbeotber cbaimxeii my
to ym f
'kdtmrdi. Tliey asked if W£ wer^ oomiJig
^wny ? And vf e ietl tbeoi h^bitid tis.
X. fl. ^^ Ilaf my lord Mob on any ^ue&lkros
toaskhimf^L. KhkuH. r^o, ih^vc not.
X* Ji* ^. Mr. Attorney, who i» your npjt
vitQegfi ?
Att. Gm. Jackson, who was tbe chairman
|bat carried captai^i James* (He wa$ a worn-)
Ait. Gtn. I'ray, will you acquaint my lords
who you carried uway from Locket'i^ to Lei-
,c^er fieMs?
Jackton, Captain Jamef : There w«re mK
eh airs in all: I do not know who went in the
ether ohnira, but iu tlie thr«^ cbairs tbat wt^nt
tog^ether when we wvnt, ib^e was <^ plain
podcwra, captain Freuch, and captain James.
^1^, Gm^ And where did you set him
down?
Juckmu. At tlie ^aud^id Uvern^ hi the
•quare in Leicrater iiebb,
Jli. Gtn. What became of him after you
pel him dov n ?
Jackson. yVe knocked twice nt tbe tavern
door, and tli^n be gare us a shilling', and we
ireot away prest^utly, and wi!nt down on tht^
lell hand upon (he paved ^toues, towards Green
street eqd.
An. Gen. Did you meet atiy persouf cam^
ing up upon tbe puvrd stopes ?
Jackion. Yes, ray lord, I did,
Ati. Gen. Can > ou tell who tbose [jerwjna
^era?— -JucAfpii. IndeecJf 1 caimot telh
Alt. Gen. ITow many pere tbey in number'
Jackton^ Tbey were tw<* or ihree; but it
was so d^l^i that J eanpot tell how m^ny they
|i«re.
AtL Ccn. Wbicb ni>y ^^r^ tb^y waJkingF
Jis^hson, They ^(.'re going np towarda tbe
piddle street.
Att, G^n. How far was that from the Stand*
ird tavern 1
Mckion^ It might be i|hout lixty y^iM fpin
tbe Standard tavifu.
^ Ati.Q^n. You say tl^^re were ihrve cbairs
itaading at tha end of GrecQ street when y^M
coJQQeby T
Jackmn. Yes, there were sp*
Jt^ Gen, Had you njc» discourse with tbjpui f
Jack^&n. No, indeed, 1 bad qot.
An. Gm. Dljl you not afik themr vrhy tliey
ilAve4 there?
Jm-kion, No^ iad^} I did ni^t; |Vf paised
z'UMfiy/i. There was one upoa ibe ^.-— , ^
: breaslt near the col Jar bone | wl '^^ ja
lUini^, 1 foimd 10 1*0 half aa inch *^ti»,
Idi i
for the Murder of Richard Coote^ esq.
A. ti. lOdSf.
[lO&i
r 1 tliink there is notliinflr that fixes
:'^ilt, as to cape. Coote^i death, an
1 shall call one wittiete that was
[iderstaDil) yestenlay, but not exa-
that is a person that saw me after-
knovrs that I had a wound in my
pen, and that wound was receivM
by endeavouring to part them,
vere quaurrelling there at that time.
1 stood up.)
Though you are not upob your
u are as much obliged, in justice
1C4*, to speak tlie exact truth, as if
n your oath ; therefore ha?e a care
)ny you g^ve.
Yes, my lord.
What IS the question you would
tness nsked ?
!. What he knows of ihv lieinsf
)ut this time ? and what 1 tfeclared
hat wound, how I receiTed it ?
I will not refuse to ask the qnes-
uust acquaint your lordship that it
iiing in point of CTidence at law,
'ourself did declare atler the fact
It is material what you did to pre-
ichief before it hap|)ened, hut not
id or declared after the thing was
hear my lord's question, what say
I was at my lord Mohun's sereral
lis business napfiened, at the Icfdg-
e lay, and where I saw him : he
1 his hand, and it was laid open, it
inger ; and that, he said, was all
indcavouring to part people from
Pray, Sir, when was this ?
It was sereral days after the death
I told your lordship before, thnt
law such evidence would signify
cause your declaring any matter,
ig was done, in relation to the fact.
Admitted as legal evidence; if any
be of another opinion, 1 suppose
:lare it.
I. My lords, I submit it to your
only desire he may be asked, wlie-
my hand or no ? and how it was ?
I saw m}r lord's finger, and it had
?n some time before ; and he said,
ved that wound by eufleavourin^
:. French and cupl. Coote : that is
f the matter.
But, pray, when was that that he
Ilow toug after the death of Mr.
It wan several days after that.
Yon hear, in point of (aw, thot
ideiice aLall: if you liav^ no other
call, your lordship would do well
our cridenoe, and ni:ike what ob-
'ou think fit upon the evidence
sen ^iven for the king.
I. My lords, I hope I shall make
against this accufttioo, with all
4
the modesty alid Mibroitstoh to yodr lordshipai
that becomes rtic. I am very much ashamed
to be brought befbrc your lordships upon any
such account as this <^t), ilftcr UariDg been
once hefbre yoor loMsuips upon such an ac-
coudt befhre. I may tery Well iray, £ tm not
guilty at all of having any hiiDd in Mr. Coote*a
death ; and I can assmv your lordships, I wilt
avoid all oceasloils of j^titfg yofti any tronble
of this nCttore for the future : I do notdbubt
but to acquit myself of all guilt, In relation to
this matter ; and, indeed, with submission fo'
yorir lonUhi)is, there hai been no evidence
given, relating to me, that does infer any guilt
upoh me, to prove that I tvM at the place
where the'fact was done ; therefdre I shall only
make some few little remarks upon whilt has
been said, and leave it all to your lordships'
consideitition.
The king's counsel flrftt hate called the
drawer of the house, and he haft satisfied, that
I did so far endeavour to part them, toat I
threatened to send for the guards and tecure
them, if they would not go home ; and when
they went into the chairs, J Went into my chair,
on purpose to follow them down to West-
minster, whither I would have had them gone.
The prfek that I got ih my finger, of itself
speaks, tliat I endeavoured to part them,. and
so the drawer he has told you; I am rare it*
was the occasion of a great deal of pain to me,
it being fiirced to be afterwards laid open. The
chairman that earned Mr. Coote swears, that
I, at the door of the tavern in St. Martin's-
lane, did moke them stand, and when I came
up to them, I begged, as for an alms, that thej
would go home ; and 1 asked Coote whither
he was going ? which proves that I was not
conscious of any design of goin^ to fight at
that time. Your lordships are likewise toU,
that when he came to Green-street end, I was
set down upon the paved stones. I was so, in- ,
deed, and I went up about five or six yards,
but that is all that is proved ; but I did taxe the
quite contrary way to the place where Mr.
Coote was wounded. Then there was another
cliairman, one A|)plegate, and truly what .use
they make of him, I cannot imagine, as an
eviJenGe against me ; for he says, I wa9 very
earnest in Bt. Martiii's-lane to hinder any quar-
rel, and indeed at the tavern door, at Lockel's»
I was so at first; and when we came to St.
Martin*H lane end, he says, that I ordered them
to make them stop, and ask Coote whither he
was going? And he sayipg he was going to.
Leicester- fields, I endeavoured all I could to
l^ersuade him to the contrary, and did entreat .
him that he would go no farther, but go down
to Westminster to his lodging, or lodge with
me ; but Mr. Coote would not give me time,
at that time, the other chairs coming by, to
give him f\irther reasons, but would go away;
and then it is objected, that I should say, thak
if they would go, 1 would go and see : that
was, my lords, I would go on till t could haVe'
a further opportunity to prevent linyflg^hting
among them: and tTO witness Ketra says, my'
utaUumm.
to fdbw the
OMle wm. My
to my lode-
ea4 id tEc
SJflMjiiiplhtwMWyiiie^itwy
fit — Jiwy— y »^llMl gbc« where rt
li^lbb Act HVfMi. For the ne^t
"*' ' ' ' r nobody walk-
IVtilj, f liiil ^
nei'. and tor
fof avojdiog
t tlie whole
«Mtarlo jomrlmkki§§, bMr fti any $m\i rs
§wl IpM at^ Mt Mm JNVii to be in the
tdiiHh»tiiHwfcwtiiiyftigfct,orn^Dtobc
K'ht ^iBfiBy vImb tMrr «■• tip aiKi ^ nd
SfWBCMlCMMlHMMindiamti bhis
4iMt aad to 1 thnk I acad gire no funber
tMHi »f oar laMipi^ fcr J beUere vour
4|U|i«HM0l kal boMlkiiiv that m I We
' \ I aa Mtjpialqr of Ufag this goutle-
aaM M7ff k V MifMihlithig'l shoutd go
iplttlMitU to fct'siiOMJ, when my owji
fjlll»,fc»rf WM«MaM» ftr I VRiti of»t able lo
iSUivyaiwiiBay aponi IwmJ, because ai
IMji awii, I mkmk tho aiMtr entirely lo
lapKBiiireto oi«et
— ""Me to hoDQur
Tfiai ofLmd Moktmt
[im
•ve now to ium
bcfitt4»flamuptiaeflMiflif«r ihckinc^, but
Irb foiee wa a loir, and the nmse m the
HaB WM a great, tbal be ocmid not be beard ^
atod tberelbre the liord High Steward moved
tbefaeoa that he might ttand by the prisoner
at the bar, which was something nearer than
the place where tlie king's counsd s^>od^ iii was
dbne the day before } and it was oidereil ac-
oordiBgly.
L. H, S. Mr. Solicitor, pray rabeyour voice
a much a you an, that all my nuble lords
may hear yon.
' [Sereral of the lonis did nave, That one
fShM bad a better roice might sum a up, and
partieifhtfly Mr. Co#per ; but it being otaally
diejiartof the Solicitor General, and he only
bamif prepared himself, he wa ordenMl to go
00 ( hot for the better beariDg of lutn, ^ver&l
of the lords towards the upper end of the house,
raaared from their seats down, a they did the
day before, to sit upon the wool*pftek«.]
8oL Gem, M^ lords, I am of counsel foe the
Joog against this nuUe lord, jny lord Mohun,
the prisoner at the bar, who ha been upon his
trial tbis day, and it coma to my turn to sam
lip the efidencc that lia been given against
liuii,wbich is but a repetition of wlmt yom-
kfdsfaips, no doubt of it, bate tak<^n exact no*
tioa of; but I must shortly siuii n^t the chi^f
of the particulars thersof, and make a tew re-
aaika what of that otidmoo iltokt< particularly
if«imy]ordMoh«Mk Tbo flat witoaa wa
V tan voy
tlie dr«wer of (h^ b6«i«r, at ilie Gn^faeoBAw
the Strand^ who p%i3 yod an a^ani, «ht
wt:rr »t UiA tSiaa^tsf'i k«t^ (He S^tli of Odglir
last, afkd p«rikuJarJyH» tJbat mj liNil MehoowK
there iii the nine i^Mi^iiy wheimi ibk ^m^.
tleman waa Ihst waa uolbrtDniely kil'^ed^aaf
thai he coittidtied m ibai comply lall
lale that night, or rallier, ven^ e«itfr te
momini; * wbea^ after ibe reckoninff
tht^y came all down to the bar amd
ooaches ; and he tell* you, that lie
out, and he teHa you what he ivaseol for. Hi
waa seat for eoacbea, and so cannot giie mf
9&oaaDi what fi^meA while lie was i^mt$i m
vrheo upon calbo^ for C!<»acbeSf oooe taaU ta
ha^J, there vms. order for cbniJV tn br
and ebaifs were brought HI the door; and
he came in agiiin be heard the d;
awordti, and there were three on the
the bar, and three of them on the oilier f
deed be does .«<ay, he did nol see whin tb
swords were draian ; but t^i that time \3mf
were patting^ up tbt-ir sworUi^, my lord Hsbsi
was 10 the compaoj ; opou i«hicii I %niaUi^
serve to yotir iordship* that tliere had hm
sonie figUtmg ; for ihe wttneiss says, ojioiii^
lord^t 4)ut>sibn, that my lord colled for a ot^
to put his band in, for his finger was cm ; mi
he said, this is all thai 1 have ^oi 1^ eodimai*
lag lo nan Ihem \ ^ that ii &hevr9 iJbemnii
noarref^ and my lord IVIubuti was in 11 W|o
toe f hairs were broach t to thif dtior, lUtj wmi
into thetn } there weni Mr. O>oic iom «^
into the second my lord (>f Warwick, and di
the third my lorU Blob u a ; so tiiat Mi ny Ifli
Mohun was in the c^tnpany, and they vii
away toijrether ; and though il is pr^raiM^
my lorti, that he did all ne cnubl to pctiti
the quarref, yet he gave direciioni to the dn**
men that carried him to fellow the oilff
cbairt, and your lord$Li|^ pereeire wbM It
buvinesa was that they went about ; iodtN
other three cbajm iuHowed alter ()reHodj,0
thai they all went away together ; iiiv, i^
lord himielf does not disown hi^ bemf a
the company till tliey came into Lficcsuf
fields. Neit 1 would observe vt hat fell fia
Browne^ who carried the very geutlemia tkt
was killed, Mr. Qoeie, that my lord >la^ai
was in one of the tbree lirxt cuair&f aiht ilM
they all went together » till that tuy lord Muba
called <Mit to stop, upon the turoint;; up tnU ^
Martin's^ lane ; and though they stopped in^
Martinis- lane, cind my lord Mohun did hixnA
them 10 ht it alone at that tiute^ yet k wum^J
to let it ale ue till the morning ; and mhm iM
other thrtfe chaim passed by on tlieotbefa*
of the way, and Coole would havelbcrog^"-
my lord Mohun sud, if tliey would go a
would g^o with tbem and see it. ^ppl"'
the chairman, that carried my brd M
uyi the same : and so it is |ilam my im
huD (lid go on with an ioteuuon Uf m$kf »
the affray ; for Applegate saya, that irl*
lord Mohun could not iire^aif upon hk i
^ious, tuid when Coote went tiray, i
otU^ thre« fduiti w&^ gi^m^ ^j> b>2^
I for the Murder of Richard CootCy esq.
A. D. 169^.
[I05S
ill, if you do go, I must go and see it ;
iy (lid go all together : and the chair roan
le set my lord Alohnn down at the end
?n-street, at the lower end of the fields,
the other two chairs set down captain
ftad my lord of Warwick, and that they
^e walked up toother towards the Stand-
em ; still all tnis proves my lord did go
and that he himself did say he would go
i it : and it is plain that my lord Mohun
as far as Leicester- fields, and it is only
laration concerning himself, without any
that he went away and did not go into
ds, to the place wliere the fact was done ;
; think it is sufficient proof that he was
them that were concerned, because we
re, that he was all along in the company
very time that they came into the place ;
the thing was done. Then there is the
lan that carried Mr. James, and he tells
ordships, that the three first chairs that
p St. Alartin's-lane went to the Standard
, and there knocked at the door, ami paid i
lirmen, and went out of their chair ; and
I the other chairmen that carried capt.
Ta and capt. French ; and they say also,
lien they came down the paved stones
they iHrSrd chairs called for, hut they
»t interpose at all in the matter; but
ler two chairs it seems did, for they
up to the upper end of the square,
there were two persons hoMing up
!oote, and aAer they nut the chair over
ils, in order to have him carried away
hair, but they couhl not get him into
lair. I would likewise observe from
idence of the surgeon, who gives you an
It of what nature the vi ounds were ; one
the breast, near the collar-bone, on the
le ; the other was under the short ribs,
left side too, which could not be given
f the person that he was fighting with, he
a rigiit-hand man, as was proved by his
t. My lord Mohun has calltKl but one wit-
vbick is only about a little circuniKtance
being wounded in the hand, and having
wnd laid open, but that was two days
Jie fact was done ; my lord Mohun
lot but know that the matters be was to
r, related to a time before. It must be '
I to me, that they all three, my lonl of |
ick, my lord Mohun an I Mr- Coote, went :
ay together, that they were carried to
ter-fietds, that they were set down toge- '
ad walked up together upon the stone
rDt, when the others were gone towards
would go and see it ; so that putting these two
circumstances tocethe r, his uoing in one of the
chairs with my lord Warwick and Coote, and
what he said after when the chairs stopt in bt.
Maitin's lane, we think are circumstances to
induce your lordships 'to believe, that he was
present at the timu ct' tire fact committed, or
very near the place ; and if that be so, how far
he is guilty must l>e submitted to your lord-
ships' cunsideration ; and this is all tnat 1 shall
trouble your lordshii>s with without repeating
the particular evidence, which your lordships
1 am sure very well rememl>er.
L. Mohun. My lords, i desire f may say one
word in answer to what Mr. Solicitor has ob-
served. 1 think 3'onr lord?hi|>s have had no
evidence given you where Mr. Coote was killed ;
but only the chairman that was desired to bring
over his chair \«itiiin the rails, says, it was
towards Panton -street, which is tpiiie contrary
to the place where 1 was set down, at Green-
street end ; 1 must then be at a very great dis-
tance from the place where the fuct was done. .
L. H. S. If all have done on both sidefs, then
your lordships Xvjsa notliinif left hut to consider
of the evidence which has been given, w hicb, I
suppose, you will do among youiselves.
Jjordt, Ay, adjonni, adjourn.
L. H. S. Is it your pleasure, my lords, te
adjourn into the llouse of Lords?
Lords. Ay, ay.
L. H. S. This House is adjourned into the
House of Lords.
[And the Lonis went back in the same order
to the House of I<ords, and there they staid for
about two hours time, debating the matter
among themselves, and ufttrwanls returned
again into the court in Westminster-hall,' and
were seated all in th^ir places, as they were
before, and the Lord High Steward was seated
in the chair before the throne.]
CI. of the Cr.
clamation.
Serjeant at Arms, make Pro-
Serj. at Armt. O yes, Oyes, O yes, my lord
hi;;li steward of England, his grace, does straitly
charge and comniand all manner of persons
here present to be unrovrre<l, and keep silence
upon nam of imprisonment.
L. H. S. Is it your loniships' pleasure to go
on now to g^ive your judgment ?
Lords. Ay, ay.
L. H. S. Then I must pray your lordships
to give me time to write down your opinions
distinctly, that f may be able to arqunint you
per end of tlie fields ; so that in all pro- J with certainty of the numbei-s.
jr, tbey all went together into the place
the fight was, and were all concerne<l ;
10 my lord Mohun must be erpially guilty
be rest, my lord Mohun knowing vihut
SB it was they were going about. It
M left to youriordships, whether heshall
f preramed to be there when the fact was
sipectally his saying when he could not
1 10 St. filartia*8-laoe, to put the matter
•aolber time, that if they did go on, he
L XIII.
Lttrds. Ay, ay.
[Then the Ijord Ili'^^h Steward stood up,
; ami put the question to c\ery lord, beg-innin|^
i with the youuijtst baron, to know \%hat his
! judgment mmk ; and tlio lord to whom he
called, stood up in bi« place uncovered, and
I layioif liis rit;ht hand upon ]m breast, delivered
I his jiidgintiit in the manner ioUowiog.]
L. H. S. My lord Bernard, Is Charles hrd
3Y
J050]
ir WILLIAM IIL
I
I
Lfc
Mohun gtiilty of the feloay and murder whereof
be stands iudict^, or Dotgfuilty f
L. Bernard, Not giiLIty, upon my honour.
[The wime questioa wts asked si»**eralty of
■tl the Lortl«f who in the same foroa dehvered
ttie stiiD« opiuion,]
rrben the Lord High Steward scatetl him-
pijf a^aia in the chair, to tuk« the Dumber of
the |>«erswho had g'iveo theirjud^^rnent,]
I. H. S. My lords, 87 of your iordshipt are
nrftseatf and you all are unanimously of opinion,
Thalniy lord Mohun is not utility of the felony
and iffurd«r whereof he slandc indtded*
Lord^. Ay, ay.
Z. H. 5. Let the priaooer be called to the
^.
CL of the Cr. Segeant at Arms, make pro-
clamatron.
Sefj ai Armt. O Ves, O Yea, O Yea, my
Lord High Bxt»wanl of England, his grace,
dees fttrajtiy charge and command all manner
of persons here prefeot to keep tilence, upon
fain of i m prisoDmefit
C/. of the Cr, Seijeant at Arms, mike pro-
clamation.
Sery^ at Arvnt. O Ye*, O Yet, O Yes, chief
governor of the Tower of London, bring forlli
the hody of your prisoner CtiaHeslord Motiuti,
whom you have committed to you, in order to
be hroughi hilher this day, ujiod pain and peril
will fall tbeieon.
Then he was brought foi-th to the har, and
the Loiti High Steward addressed btmself to
him in this manner :
X. H. 6\ ^T^' ^<i»*'^ ^fnhun,you have been in-
dicted for i' of Mr. llicljard Coote,
upon whicli t; ui yo4ir tonkhip has been
arraigned, and upon your arraignment haa
plcadecl not guilty, aod'for your trial you hare
put yourself upon your peei-s, my lords here
present ; and the\* have heard the evidence,
and have contidcrod of it, and delivered their
jfidgmeot upon the wliote matter ; and I am
to BCflUaint your lordship, they are all unani-
mously of opinion, that your lordship is not
guilty of the felony and murder whereof you
itand indicted; and iheri?fore your lordsliip is
dischargeil from your imprisonment, paying
your fcea.
Then the lord Mohun made lib reverence to
thfl Lorda,aud exprcuH'd himsrlf thus :
Trial of Lord Mohum [W
Lord Mokun. My lordi, 1 do tuetknowi
way to ejtpren m^ great Ibankfttbesi i
knowledgment ot your lordbbipa' great I,
and justice to me ; bat 1 crave leave lo|
your lordships, that I will eaideavour l«
It tba huftbesa of the future part of my
to be bare myself in my eonveTsatioii ie
world, as lo avoid all things tbztt may bctog i
under any such circu in stances, as nuy i
roe to the giving your lordahipa an? tn
this nature for the future.*' [And tbeo
his reverences to the lords, be weol awj
the bar.]
CL oftht Cr, Seqeaal at Anaa, otkepi^ I
clamatioQ, i
Strj, at Arm, O Yes, O Yes, O Ym^ai
manner of persons here present, areoofmiiidW /
lo keep silence, by my Lord High Hcnrmfif i
England, his grace, upon pain of impnait f
ment,
h. H, S. My lords, the trial being it uiil I
there b nothing remains to be dcioplitTr,ltf i
the determining the commiasioii*
Lords, Ay, ay.
JL H. S, 8ir Samuel Astry, let i
be made in order to the dissdring thee
sion of High Stewardship.
CI. vfiht Cr, Serjeant at Anus, Dilir|l
cldmation.
Serj, ttt Anfts. O Yes, O Yes, 0 Vrt. l
Lord High Steward of Eu^lantf, hi* i
does straitly charge and command all i
of persons here present, and that liwtl
attended, todep'sr" h-'v— ■-* ■*— ..-"-</{?
and of our tov^
(jracHJ, the Lord il.^^ ..,,: . .. i .,
intends now to dissolve bis commiitiin
And then the White Staff being adM^^ j
his grace, the L^rd Hi^Stewai4, heiti^4|
and holding it in both his hac^, bnikc ^f*^ '
and then leaving the chair, oame dflVti t' i^
Wool-pack, and said, Is ityoiirlorditiipi'fi<^
sure to adjourn lo the House of Lordi^
L§rdt, Ay, ay.
I. H, S, This House is adjoumcJ *^\
House of Lords.
And so ihey went back in tlie saB* ' ,
that they came into the court, and lU*
ibly broke up.
* He was nev crtheleaa kilkd in a dutl h ^
duke of Hamilton, who ttoo ML Bm ^oL t
p. 9^0, note.
W«
>1
Trud ^ Ckartes Dnncambe, esq.
A.D.
[lOGe
k A brief Account of the Trial of Charles Duncombe, esq.
before the Lord Chief Justice Holt, at the King's Bench Bar
in Westminster-hall, upon an Information for false indorsing
of Exchequer Bills, and paying them into the Exchequer, as
if they had been first paid into the Excise Office upon that
Branch of the Revenue: li Wiliiam III. a. d. I699.* [Now
first printed from a MS. in the Possession of the Earl of
Radnor, who has obligingly imparted it for this Collection,
A. D. I81S.]
June 17, 1699.
;S Court waited a long time lor D'Acoata
lew, tiM loof^a erideiioe, upon which ray
Chief Juatice rcprofed the kiag-'s conn-
Ad aaked them if they bad ordered it so on
use; to which Mr. Attomey replied, that
Mflta profluied to be here. One of the de-
lat'Booanael nid it was the Jews' Sabbath ;
IIm Jews would not fight on the Sabbath,
■Iber be cut in pceees, and that the king's
•tl might have dispensed with the attcnd-
o(f the defendant's oouosel. Mr. Attomey
■red, that D'Aoosta promised to be there,
Mide no ebjectieii as to the Sabbath, bnt be
mtA the defendant's counsel had put him
i(ddrit
r. P'Aouota being come, the Jury was
B aa follows : Warwick Lake, esq. ; Leo-
Hammond, esq.; Richard Berer, esq.;
M8 Blaekinore, William Fenn, Francis
b, Francis Peters, Michael Shepherd,
<* Another sort of offenders were this ses-
nimadTerted upon by the commoos, but
lie good fortune to escape with impunity,
ezcbe^ uer bills were at this time of very
i use in the nation, by supplying the
sty of money, during the re-coining of the
r speries. Now because there was an
est of 7/. 19f. per ano. allowed upon the
id leaning of tnese bills out of the eiche-
, after they had been paid in, on any of
ting's taxes, whereas at their first issuii^
if the exchequer they bore no interest, this
maged several of the king's officerti, both
• excbeqiier, the customs, and the excise,
Mirive together to get great sums of money
dm iodoraemeota on these exchequer bills,
ra they bad drcnlated about, and been
fhl iato aov branch of the king's re? enne.
Most eooaiderable nersons, who bad carried
Hms iw warrantable practice, were Mr.
riss DoDeombe, reeeirer- general of the ex-
i Mr. John Knight, treasurer of the cu8-
I; Mr. Bartholomew Burton, who had a
lis Ibo eKciao-oflke ; and Mr. Reginald
m^ one of the depo^ tdlera of the ex-
W; whM^ 1hI» la prooore hia paidon,
Richard Poatou, Matthew Fern, Robert Hedin,
James Cole.
The Jury being sworn, Mr. Attorn^ exhi-
bited the Information, which being read,
Mr. MontaguCy counsel for the king, opened
it to the effect following :
The Record now read, is an Information
brought by Mr. Altomey against Cliarlcs Dun-
combe, esq. for a high misdemeanor in the exe-
cution oi' bis office as cashier of the excise. It
shews that the lords of the exchequer had di-
rected bins to be issued out, and that Mr. Dun-
combe being cashier of the excise had received
$0,000/. and more of the king's money upon
that branch of the revenue, and according In
his duty ought to have paid it in specie for hia
majesty's use aa the commiasioners directed.
On the 5th day of May, the commissioners of
the excise ordered him to pay 10,000/. ; not-
withstanding which, he, intending to defraud
the king and to lessen the credit of the excho-
eom|KNinded to accuse the rest. Upon a ful
proof of the matter, Duncombe and Kniglit,
who were members of the house of oommona.
were first expelled the house, and committed
prisoners to the Tower ; Burton sent to New-
gate, and bills ordered to be brought in to
punish them. The bill against Mr. Duncombe,
whereby a fine of near half his estate, which
was computed at 400,000/. was set upon him,
quickly passed the house of commons, notwith-
standing the oppositron that was made to it,
particularly by sir Thomas Treror the attor-
ney-genetiil. But, being sent up to the liousa
of lom, and the house beiog equally divided,
the duke of Leeds gave his casting vote for re-
jecting the bill. But, Mr. Dunconibe being
set at liberty by the onler of the house of lords,
without the consent of the commons, the latter
reaented it to that degree, that they caused him
to be remanded to the Tower of Liondon, where
he continued till the end of the session. Tho
bills against Knight and Burton had the same
fate ; and so alf the noise this sort of for-
gery had made, in towb and country, was
bushed on a sudden, and no more heard of it."
lOCSj 11 WTLLIAM III. Trial of Charles Dunambe, esq.
qucr liillu, did on the Gili of May pay in 7,860i.
Jirinri|iai money in exclicqmr bills, t*iils<-ly in-
Inrsed, tor money that he ou<jlit to have paid into
the e^cheipier in specie, he koowinij^ that those
bills had never passed the revenue oi the excise.
Mr. Aitotnetf (sir Thoman Trevor) ar^ed
next to the effeci Ibllowiujr, viz. That Mr. Dun-
combe had received into his hands as cashier
of tlie excise the sum of (20,000/. and more of
the kinf^'s money, which liad been paid in fur
the revenue of tlie excise in old money, sent
afterwards to the Tower to be re- coined, and
' came back a^in io milled money to Mr. Dun-
combe the cashier. This money beinir in his
handd, he was to have paid in according; to the
direction of the cominiss>ioiiers of excise. They
ordered 20,000/. to he paiil for several uses,
and part of it beiu<r 10,000/. and more to be
paid into the exchequer by their order of the 5tb
of Mhv for that pnrpimc. But Mr. Duncombe
iotrndin^ to make an unlawful jrain tn himself,
nnd to prejudice the kin^ did not pay in miiltrd
money accordini; to their order, but' purchased
to the value of 7,800/. in exchequer bills upon
a ;;re:it discount for it ; at that time exchequer
hilts i«kucd for such aud such sums were dis-
Gouiiteil at 5/. |)er cent, so that he savett 5 per
rent. ; this came to 400/. more or less, that he
gained by this bargain. But those exchequer
ills he could not pay into the exchequer with-
out bein^ indorsed, lo ^jew that those bills bad
been really paid into the excise upon that
branch of the revenue ; for, by the act of par-
lianu-iit, they were to he paid into (he exche-
qiKT ns iiuuiev tluit hud fonnrriy heen |taul on
the re\i owe, and ihe pei-son.s weiv lo write iheir
names ii}ton theiu as ihey paltl tin in ; where-
iipmi Mr. I )iiiu'«milM- prevails witli Mr. DMrnsta
lo si I jiis own name and oilier leigiied names,
8 »nie ut* ilu'in <'f persons !i'>t in biioi^*^, others
the iia.nc s ol jktsoiis that wcie nut privy lo it ;
an<l Air. Daiicoinbe ki)Owin<r that tUev ucrt'
falsriy inilorse"!. j'a.d ihem into llie exchequer
in pan of lo.OtJO'.. ihoiji;li he knew Uiey Here
iu»i paid ill to ilie »xci>e. It \>as a "misde-
ini an(»r in Iii»j oiHee :.ij.l a jleceii to ilie kintj,
lor him w Ij. •»*;;-. niinisit.-d to pay the kiiij^'s
int)ney to l.ny ixcluijiicr I'iils b\ which 1m*
Huins so uinch per cent, and pays iht-m iiilo the
excliiquir at so much dani'i^e ai»d lo.«>s lo ih.e
kin;; : lhi> v*e shall provt b\ <uir \\itn«.SM >.
Mr. .S.rj,a:it Durnt! «p ike nr\t, Jiml i:">i<t-
inpf a iiiih- iip.)!i the icit'onnaliun. calicd U'.- tiK
kinif'.s e\itItiK*i>.
Tin' {i'sj \, a , >lr. Claytnn, wiilj liie oiuv i oJ
the lonls oMlie iri: s:r\.'
."^I. />./».-'. ""ir. I l.iv :.»!', uivea.i a».'cc»ui. I o:
what "s I u know of cxrlit,'|uir bilia issued b\ lin.
lonls of I ho iri.i<nr\ .
Mr C!:ij\'u. Tills .siUe or.!, r of the lords
of ihc lri'.iMi.\ . vvliii ii \'.:;t. re..d us follows :
April Jo, lc.i:.r, S:i ,.:ien I '\, Ch.irles Mo:i-
** ta^jMf. ,l,»hii N niiii, Thon.as LilllclMi.
** 'lo su- lii'iiiii Howard, auditor ot liie
*'cxcheiiv.Li."'
'* Whereas by act of parliameut forgrantini:
** an Aid to his majesty by a land ti
*< for one year, we are authorised t*
" of the exchequer not exceeding 1
" and to issue the same in such propi
** shall think (it. And w hereas, by
*' parliament, and by the king's pn
'' when the receivers of the rcvenui
*' bills into the revenue, they are to !
*' struck, and their bills are to be ci
" more fully therein appears. Th
** pursuance of the autlioritj^ STant
*' by the said act, &c. fi»r issain^,
** back, and cancelling the said bdl
<* lowing the orders to be (»baerved,
'* you if you cause indented bills t
'* tor such sum or sums, as any tbr
^* the lord hig^h treasurer for the
<* shall direct, and that you see the i
" bered and marked with the pni
" lowing interest of 5 per cent, am
<* keep an exact and true account ol
*^ and deliver the same to the lellrr
" chequer, taking their receipts at
*' an exact account in the nature of
** and chariT: the tellers with the n
** vou delivered, and keep a true ac
** bills they leceive from you ; an
** said tellers be required to observe
*' ticular directions, and such fuitl
<* ue shall fn»d necessary; and tb
** ha« c the better intbnnation how th
** complie<l wiih, you are everj- Fritl
*< mine the accounts of the tellers
^* and to Leop ihc ir receipts and can*
*' separate from the other acrounts
** chequer, and this shall he your w
Serj. Darnci. We shall next prove
mission ot the excise to appoint Mr 1
their cashier. Show the commission
L. C. J. How do \ou prove it to
commission .-*
Mr. Attojnei/. It is a true copy ex
the Six Clerks oftice.
Then the Commission was re
Sir Tho. Poais^ one of the detenda
St I. It were prt»pc r before you com
this ohjev lion, that \ou should lay it
formation, that the conimi>s>ioner$ c
ney bills to he issue! out, to be |>a
txclieqner: lliey are tirst to prove
it.; ^ have not yet pruved it, lor this
ueiiM.il insirnction ihat they should
\thi.n coniinaniUd.
Ti « n an Order of ihe Trea.^urv
•Iriud Orili \pril. 1097, signed, Fo,
l.iir.tlon ; «:;iecl«*<l to sir H«>ltert He
p..: t■nl^ *' That foreniar^^ieirthecapit
" ihe Ji.ink of Knu-lund, there should
" ciM t'> lilt loid Kanektu^h n[Mm ai
•• tie.! ortkr in his name, SJ2,648/.foi
'* et lr;> n;..jtsi\'s foices, and c
" eliar<;es lo he applied, to pay OKHM
" ijuarierinif of soldiers betwixt V
" l6*-u, JOO.OOO'. ; to clear qoanen
'* sisteuce io l£n gland, 77,648#. ftr th
1065] JvrfaUe indorsing of Exchequer Bills.
'• in Flanden 55,400/. ; ami that they should
" take care that this should be duly paid, and
" charge themselves M-ith it."
Mr. Attorney. Call Mr. Clayton. Mr. Clay-
loo» were the bills issued according* to this
onler ? — Cluuttm, Yes.
Sir Tho. Fowit, U|mid what account were
tkey iaued?
ClayioH. On the 1,500,000/. act ; for we did
DOC make out any bills upon the second act till
three months after.
8ir Tko, Ftavit. If this be sufficient proof, it
Is strange ; it recites the Capitation act, and a
Sd act for deftciencics, and makingr good the
slock of the Bank. The order recites direc-
tions for exchequer bills to pasx in all payments,
txorpt the Si. Aid, mi that there are no rxche-
qocr bills made according to the act ; for their
OTiier is subsequent to b<»th. I'he first orders
sxcfaequer bills to go in all payments, so afler
both are passed, here are exchequer biils that
ooght to be made to pa*:s in all nnynients, and
Bot to pass in all payments, so that there is no
exchequer bill agreeable to the intention of the
Sdact.
L. C. J. The firRthath an exception. The se-
esnd says, all exchequer bills shall pass in all
'Baympnts whatsoever. The first and second
nving both |>a8sed, they ought to have made
Ibeir bilK payable ncconlingly .
Mr. Attorney, Their order is only upon the
iMie of the first act, that tlie exchequer bills
•hall be current in all payments but the three
ihiliings aid.
Sir Earth. Shomrr. It is before any procla-
matiooy p. 384. *' Be it further enacted, that
dcbeqner bills be taken not only by receivers,
kit by all collectors of the Land tax and sup-
ply,' &c. Observe this order of theirs re-
cites both acts, therefore they ought to have
framed their exchequer bills to be current in
all payments, and not with an exception.
L. C. J. The exchequer bills are made ac-
cording to one. Will you make two sorts ?
First, the one act says, they shall pass in all
paymcDts except the 3s. aiil, and the other act
says, exchequer bills shall be current in all pay-
mts whatever ; they have authoiity in one
k 10 make exchequer bills current in all pa v-
»ts except the 3s. aid, and in another to make
Km current in all payments whatsoever.
Mr. Attorney. It is another act that makes
I current m all payments : so that you are
nsiaken, sir Bartholomew.
8ir Barth. ShoKcr. It in to make exchequer
I general when there is u clause in one act
tkat tbey shall be current in all payments ex-
cept the* 3s. aid, and then by another act in the
nmc sesuon thev are made curn-nt in ull pay-
ments ; then, wliat authoiity had they to make
Cttliequer bilht with an exception, when the
net authorizes them to make them payable in
A. D* 1609.
[1066
produced that they are to make bills according
to their order.
Blr. Attorney. Though there be a general
clause in the act, yet there is another proviso
about contracts for exchange.
L. C. J. At this rate, gentlemen, there is not
one exchequer bill in £ntr|and good ; yon will
destroy all exchequer bills. Go on with year
evidence.
Mr, Attorney. Call Noel. Mr. Noel, did you
know Mr. Duncombe when he was cashier of
the excise ? — Noel. Yes.
Mr. Attorney. Call Rumney. Mr. Rumney,
What do you know of Mr. Duncombe's receiv-
ing milled money P
Rumney. On the 4th and 5th May, 1697, he
received <J0,135/. 5s. S\d. recoinetl from old
money ?
Mr. Attorney. How did he receive it ?
Rumney. He received it from Mr. Fouquier,
accountant to the excise.
Mr. Attorney. How do you know he re-
ceive<l it P
Rumney. I went to Mr. Duncombe's office ;
I helped to carry it, part on one day and part
on another.
Mr. Attorney. What do you know of money
paid to Mr. Duncombe, Mr. Fouquier?
Fouquier. On the 37th February, 1696, he
had 357 ounces 8 dn is. hammered money ; On
the 5(h of March, 5.^8 ounces inimmered money
repaid to his clerk : On the 4th of May,
produce of the money so brouuht in on the 97th
February ■ ; on the 3d day of Alarch,
then there was paid him on the 4th and 5tb
One of the Dcff.ndanl^s Countel said. You
' »k. Did you sec it carrried in P
ways received it and paid it
speak by your book. Did you sec it carrried in P
Fouquier. I at
1.
Keij. Darnel. If the fact were so as sir
BvtlHilomew alledges, it will not conclude that
\ can be no exception.
thus to his clerk.
Mr. Attorney. Mr. Blessington, produce the
order of the commissioners Ibr the payment of
the money into the exchequer.
BUisingtoH. There is the order of the Com-
missioners to pay the money into the ex-
chctjuer.
Then it was read, dated May 5th, 1697.
Mr. Attorney. Notwithstanding this order,
he bnught those exchetpier bills, caused them
to be indorsed, and paid them into the ex-
clie«|uer in part of the 10,000/. Mr. D'Acosta,
give an account to my lord and the jury what
number of exchequer bills you sold to Mr.
Duncombe, for what, and when ?
D^Acoita. I did, upon the desire of the lords
of the treasury, furnish billi« for his majesty's
service in Flanders the 19th March 1697 ; I was
to be repaid in exchequer bills when they came
out. The exchequer bills were according-
ly delivered to me on the 9th of May 1697, and
wanting money at that time, 1 contracted with
31 r. Duncomlie to sell him 83 exchequer bills,
amountiiif^, with interefct,lo the sum of 7,894/.
9s. Od. deducting 5 per cent, which came to
394/. 4s. 6d. The remainder Mr. DuDOonba
Mr. Munday. It appears by the evidence paid me on the 12th of May.
1067]
11 WILLIAM in.
I
I
I
I
Mr. Attom^, Wbo did you deliver them to,
and From whom did ^ou receive tbeui f
D*Acmiu. I dettvercil them to ftlJermaQ
DuDCOoihe. I received theivi from the lords oi
the treasury, on tljo 4th of May 1697. J
bfuuglit iheoj to hitn luyseif; be rtcehed
thrm, JMid looked upon ihem; he lold me J
i^uld ftet my huid to them, and I did so to
several.
Mr, Attamey* Why did you wti your bftnd
to them f
D'Jcosta. I thought it iiece««ary lor the
currency of those htllSf tbey being' but come
mbout * week before ; hut con«i(&rii>g^ wiili
loyseti' at the same tiuie, that it might be a re-
fl^tkm Qfion me to discouut to many biilst I
ti>1d Mr. Duncomhe so thea ; he bid me put
my own hand, or the name of any other pt^rsou
to them ; so 1 piU my own name to part of
them, and to the rest, i aet other names.
Mr. Atiornet/, What names did you set T
D^AcottiA' Any names I could think on ;
the names of perstms ttiat dealt with me oir
otben.
Mr. Altorfuy, Tiie discount at 5 per cent.
you stiy atnoimtetl to 394/. 4s. 6d, ; did you
■et your hand to those bills, when Mr. Don-
combe was by ?--~D^Acos(a. Yes.
Mr. Aiionu^. How came it you did i»ot write
ibis indursffmc nt ?
D^Acosla, He desiroil me to do nothing,
but to set my hand, without filling up any
thiD^.
Mr. ./it /ornery. Did you wt\U your name
upon all of them?
D'Acoita, I wrote my name upon several of
tliem.
Mr. Attorney. Whose names did you write
opou the rest ?
D'Acosta. 1 do not remember any other
names hut that of my partner, and some others
that dealt with me*
Mr, Atiornei/. Look upon those bills; yon
know the uuinoers of those tnllf you sold.
D^Acosta looked ii[>on some of the hills and
said, I think this is my hand ; thi» is the name
of John Romberg, one that I dealt with.
Mr< Attorney, Did you write that iodone-
mentf
D^Acotta, No, I wrote nothing hut the name
upon it ; there was a blank, I know not who
wfole the rest
Mr* Attorney. When did you pay thoae ex*
chequer hills?
iXAi^im, On Uie 9th of Majr, IdQT.
Mr. Attorney, Did you write no indorse*
ninrt tipon Ihem ?
Hi'AikMUa, No, only my hami and a biank.
Bir. Jrfomsy. Did you set down no day ?
D'Afo^ta, So.
Mr. Attonmf. Did not you scruple the put-
ting your name to them at first ?
D^Acoita* Noy 1 made no sonipls, becauaa
k« told me there shoukl be a naoMfo them ; but
wiiiaiilMiiiy at last that it was a large pai^cel of
faiO^ and that it woukl be a reflection upon
Trial ifCkarlci DuAcjmi^, tsq, ^
tkolhtng ti»c;'
lyAcmla. No, he desired notyag al "1^
up, or any d»y ; 1 ixily set %ny own vookcx^
other names to them v '<>v this tkiog
wrote Of er tht: names, I know nmkiog ;
some Mher Unly hsth writ it.
Mr. Attorney, Did he giv< y^il
tions what names to writ« ?
D*Acotia. He gare n»9 no
said any name.
Mr, AitoTHMy. What wai the
set down teigned |iersoQ»»8nd feigned*'
Sir 7; Pount. You wrote your owti «-j
many of the bills ; tell the r«siion wb»-
not write it upon nil f ~'~
D^Acoita. Bt cause 1 was afraid
disoblige the lord tt of the iieaMirvio i
BO many, and wrong my • , ft
it 60 to Mr, Duncombe, a. < i imn
name.
Mr. Attorney. Was there any adriaU^i
that time by setting names to the billi; 11
you discourse of any advantage by n\ or^
know of aoy contrivance in lu
>ou
V
was it for your own sake or Mr.
that you wrote your name ?
D'Acoita. Mr. Dunoombe desired i
my name to them ; I knew of noadtaonj
it ; the bills that I had were ihc fust i
were issued, and the lirst ili%t I bad, 1
to Mr. Duncombe. Those bills were i
to me on the ith of May, and betwixt thiti
and the 12th that I signed them, 1 couli i
tell the manner of them. Mr^ I>ui]cuuaki i
sired me to set my name to Lbeoa, and 1 1
it was necessary to do so, and aocordu^lv
my name in bkink to them.
Sir T. Pomii* W hen you put yoor i
upon so many, you were utiv>iUiii|r, j
to put your onme to any root e ; wns it I
own sake, or dlr. Duncombt^s, ili^t ye
pled it ?
D^Acii^ta, It was fur my own sake.
bir 'i\ Ptt&fi*, Did ht; direct %uy body t
name to be set to the bills f
p'Acoita. i brought iboee bills, aa|
aaid, blank ; i delifered therai to bim;
me I must set my name to thetti ; I
several of them, and theu cotisidArtHJ tber
(lection it would be upon me, if I sgnadi
many of them, as I said hefure, and nnrnd
so to him, and he bid me $et my nnrue.
Mr, Nor they. Did ymi lake it tu he u( m
import, when you act your name lo UMnf
D\icoitt(i, 1 tttou^Iu ii to be oo mora htk-i
kind of rt*ceipi, as thf iudorving af biUsail
twixt merchant and merchatit.
Sir B. Shower, Vou say you diarfiH
theui to liim at 5 per cent* ; Waji tbat taiai
more than the lord^ of the treasury
you ?
D'Acoila, What the lonls oftiial
allowed me was upon anolber poiaL
them my biUs to be paid tn Flandfllf
Ifvrfl
JbrfaUe indorsing of Exchequer Bills.
A. D. 1699.
fl070
discount there was on the other side
u^B , was upon the account of exchange ;
acs d sea we give so many gilders per
i^^^-^riing.
;jEr* - Shower, Had you not a greater dis-
^ ^"^z» ni the treasury upon that exchanging,
^^^V**^*"*! common exchanging; was there
.^^^ ^>f that betwixt you and the lords of
LV^[^ ^€>9ta. 1 cannot tell how much 1 had,
cVl «2<iurse of the exchange Taries every
fl^^^*^ every post.
01^ >^'" -^Vor^^ity. Mr. Duncombe had no occa-
^Y^*^ sink the value of ihose bills ; for we say
f^ ^W^** *"®'* allowed to Mr. D'Acosta over
j^tirjv^ the common rate of exchange.
^^'^^ C. J, That was upon another account if
> , ^ ^^ so ; but I do not see of what use it will
^ te ?!!?'^ ^^ ^* ^»s 80.
^f^^^tk vou remitted the money to Flanders^
•7 5?* D*Acosta, did not you write to your
•*. <w^d to accept the bills so and so, pray now
.^[|M this money paid, what exchanging had
% « D^Acosta. I have said already the exchanff-
^g varies every post, 1 cannot positively tell,
) ^Qt my bills t^crc paid wiih honour, and I re-
^ ^'ved the value here in exchequer bills.
. Sir Tho. Pmeis. Did you deal on the same
.Wms when yon received the value in exche-
filer Inlls as if you had received it in milled
* liioney, cannot von t( II the difference ?
^ D^Acosta, When 1 made my bargain on the
^ 19th of March, the bills were worse, because
** the second act was nut then made : when I re-
ceiTed them, 1 was to tnke them in payment as
«. they were then delivered nic there, being none
issued out upon the first act ; thc^' were dis-
» ooontetl sometimes at more, sometmies at less,
they were discounted aflerwards at 9 and 10
per cent.
Sir Tho. Powis, Would you not have had
more allowed than 5 per cent, if you had re-
mitted them in milled money ?
jyAcosta. Yes ; but how much I had for
them 1 cannot say, for i took them on all ha-*
sards ; I have known the exchange rise in one
year from S7 to 36. Can any merchant say,
then, what profit he had on individual bills,
when I made use of my money in Hamburgh,
Ilmly, &c. and received all sorts of coin.
8ir Tho. Powis. Cannot you remember about
llarch how the exchanging betwixt Flanders
and England was:*
jyAcoila. If I had known what questions
would have been asketl me, I could have been
provided ; but now I do not know.
Sir Tho. Powis. Do not you know how many
stivers you had per pound sterling in March,
1696?
D^Acosta. I do not remember.
''\ X. C. J. How much had you per cent, can-
nolTOu tell ?
jyAcosta, I gave my foreign bills two
'months before I had the exchequer bills ; if I
had bad the value of the bills when I drew
them, I reckon it would liave been IQ or 13
per cent, but I had them two months atler.
L. C. J. How much per cent, suppose you
had received the value in money ?
D*Acosta, 12 or 13 per cent, if in money
when 1 delivered my bills, but I was to have
the value in exchequer bills when they came
out, but did not then think of the second act of
parliament, which made tlicm better.
L. C. J. When you came to discourse of
those bills with Mr. Duncombe, was it he iiro-
pose<i it to you, or did you propose to sell them
to him ?
D^icosta. I proposed it to Mr. nuncombe,
telling him I had so many exchequer bills to
dispose of, at
L. C. J. Did you deal with him on the ac«
count of the public, or only with Mr. Dun-
combe?
D'Acosta. 1 dealt with him as Mr. Dun-
combe, and not on the account of the public.
L. C. J. Had you any message from Mr.
Duncombe to have those bills from you ?
D^Acosta. No, I went myself to him, hoping
for a better profit.
L. C. J. Did you think at the lime that the
discounting of the exchequer bills at 5 percent,
would have sunk the exchr<)uer bills ?
D'Acosta, No.
Sir Tho. Powis. Were those the first bills
delivered out of the exchequer ?
D^Acosta. I take it they were the first bills.
The lords of the treasury ]nt>mised me 1 should
have the first payment as soon as they came
out.
Sir r. Powis. How long did you keep those
bills?
D'Acosta. From the 4th to the 12th of May.
Sir T. Pou'it. Was there not a discount upon
exchequer bills before Mr. Duncombe nad
youi-s r
U^Acosta. 1 think not, but I believe there
was about the same discount amongst mer-
chants.
Sir T. Powis, Do you know it ^-as so ?
D^Acosta. I do not know it of my own
knowIed|app, I did not see it dune ; but those
that did it told me they did it.
Sir T. Pomis. Did you agree with the trea-
sury for other remittances ?
b^Acosta. Yes, about 3 months before.
Sir T. Powis. You discounted 5 \yer cent on
the bills, had you more or less for the
second?
D'Acosta. I cannot positively tell how much,
but 1 furnished more gilders ppr £. sterling
I than before. Those bills after the 2nd act were
I more secure than before, therefore we had rea-
; son to allow more for them.
' L. C. J. ^Vhat disconnt was there upon the
second bills after the second act ?
D^Acosta. I have known the discount to be
more than 9 percent, upon the exchanging be-
: tween man and man.
I L. C. J. Did you discount more upon the
i second bills than upon the first ?
' D^Acosta. I discounted less.
r
m^
1071] 11 WILLIAM m.
Sir T, Posffii. Was not your eoniriict fin* \
llioi« remillaiicea bciore itny bills were mtit^iS 'f
D^AcQila. Yts.
8tr '/*. Pifwii^ Uow Aianv of iltose bUit did
you iJeliver to Mr, DuoctJiiilic f
B'Acotta. Eighty thi^e.
Sir r, Fomii. ^Wtre they deUvensd out after
tUe secoud act ?
D"Ai:mta^ Yei^ after tha 2nd act Rnd jiro'
d.tniatti»n, but the C4)f)tra(^tu<ift matte be lb re.
Mr. Jf£<jrwa/- Call Mr. Fern, Wr. Fern,
what tlo vou kiiow of Mr, Duncombe^i pay iiig
tbdsc! biUtt into th^ exchei^uer ^
Fern, Hfa man i^^houM have paid mnncy
iiilo my office, and offered lue e^rchequer bilts^
bui I would not receive them, and so be weol
to anothi^r.
One iff f Ae KjMg*i CoumeL It waa a settled
coiifisc atiiongthem for such and such branches
of th«? rciT«jnje to be paid into thi; respective
otiioea. Tbia uioncy shouJd bdve been paid ioio
Mr* Fern*a office, Mr, Duncombc'a mesaeu^^r
offers Mf, Fern so much money; 2^1 r. Fern
lokea down the buma, but when be cauae to re-
rcire the money it proved to be i^xcliequer
bills^ upon vcbidi Mr. Fern said, Thr^^ biilh
were hut isautd out last week, you t^nnol ha*e
re«eiv€d thcnv in the excise as yet, I cannot
take them ; if you woo't, aays be, 1 will come
to yon again hy and by.
rern. Upon the 3th of May, 1697; Mr,
0QiieoinUe'is man came to nve to lell me bow
much he was to pay that dn-y. I entered it, and
he went ta the next office where tie was to nmke
some other payment ; lb en he came to nie
again and uffered me exchequer billv for 3/222/.
13£. 6d. 1 refused ihem, because we had is-
sued them out ao lately, thai 1 knew they
could not have circulated throut^b the revenue
so soon, 1 asked him if they bad been re-
ceirod in theexcis^f \ he told me be believed not ;
tbeu 1 told h\m I criubJ not take them, and
upon that be went away from me.
Mr, Aitornt^. Do yon know the man?
Pern. He employed two men generally. I
cannot teM well vt hich of them it was ; but it
waK one he used to employ to tt^ll inont'y.
Mr. AUarm^. Did you evi^r see him before
thai time?
Fern. Ve0, Eie^eral times ; be used to come
lo me S9S Mr> Duncombe's man.
Mr. Aiiom£if. Wby did he come to you ?
Fern. He came to me as clerk to Mfi Carj,
one of tbe tellers ; it felt to my lot to receive
part of tbe eicciie.
Mr, Aliorntjf. Do you know the man wht^n
yon see bim ,*
Ftrn. 1 think it waa one Stent or one Rum-
oey, hut ciinn^tt tell which.
Mr, Attorney. Why came it to yo«r lot to
receive this money f
Frrn. Bv as^reement amongst ouraelrefl, we
aubdif jded ibe receijit of the kmif's revenue ; I
received that jiart >ome lime before^ tberefure
fac came to me.
Mr. AHotncj, lo part of what sum was it
ta be pud ? — Fern, Qb tbe S-3ds «zeise*
Trial qf Charles DuncamBet esp
[1071
turn
Sir T. Pojx 11, Ti;*y all ih» while e^d^voar
lEt aficcii Mr, Dunoombe ^itb fr^ud i.ad d«cnt,
liuit he paid it iu»t into hia own otEof bui tnm
another ; pray bow ikH.* Any ibib^ thii a
bath aaid jiiove a trauil upon him ?
L. C X ijti tb4 iti go<m M Jib tbar etidei
Mr. wllioTAfj^. When tli** servant caixif,
be not till you Uc L*^nw to pay it frotu tl
ejcciae f
Fern. I enterfd it iu rtiy bmik uptm
2*3 ds, and additional «ixcificf/bfil wheo be
me it wwuld l»c exchtfjatjer bills* I msed it QQl.
Mr. Atiarnt^. Did be say be wxiuld ply
up^n thcexriite and from Mr. Duocfjinbe f
Fern. Vt^, and 1 set it tlowu upOQ tju^
particnliir jnopartiotjs ai he directed m^^
dritwinij Iht* bdk, amd he oflered exchc^ig^
bitls b disdiarge of that iOooey ^ ^
Mr. Atim-tifj^* What aciswer did he mtbrni
yciur obje*?tM>n.
Fern. I uiktA him, if the iiiow4»y wu^
into ttic eirdie, and he ^^Dawcrinl he hdm^
Mr. Aitm-ne^. Whpn wa*^ Ibia f
Ferii, It was upon I he 8Lb of May.
Mr Attortity. U'bat Jireuli&nv bai |va
before tbe 6th of May about reeelria^ a*
dinner bdii?
Ferru 1 hnd no directions but the act.
Sir Tho. pQiAU, It waa only diif^reooi d
opinion,
1. C. J. He toW you f>n what accouol k
refusetl the excbequtfr bills before, beemoilli
knew they cauld nut U^if^ circylated Itua^
the revt^nue in so little time^
8ir 1\ Pomh, Wait Mr. DuDconabe mebef '
of the ejccise at ibat time T
Fern* He came from Mr. Doncopiik it
tbattime^ and I did noL know Mr. Duncotabc
W3* out.
Mr. Aitorney. Call Mr. Peters. Mr, Petiii*
acquaitilmy lord and tbe jury i^itb what jo<i
know of this matter P
FcierM. On the 12tb May 1697, Mr, Daa-
combe'ii servant, but which 1 cannot t^
bnmgbt me Ihree parcek of exchequer bilU ia
three paperii ; 1 take it to be Rumney. Tbej
were indorsed Principal and Interest ; he Um
me I must charge tbcm on the ^ariiculart df
ibe excise, on additiunal duty, .^^ ddiibtt
excise, , Eji^cii^e far QQ years,
Low wiuet, &c. sweets, duty *iti ctmls^ ^
Brandy, -, iSalt, - ■ — . I cbu^
more upon the addiaonat dutv» , vam
tbe oxcise, -■-. Low irities and apini^
— — - two thirds excise^ — , Excise 6f
09 yciirs, — , Duty no salt, 5fc. whicfc
came in all to 1,01(9/. Os. 4{d.
Mr, dtiiftnejf. Did you see any names apM
the b«lli f
P^itrg. I found one w ilh the naii^e *^ Fraaer"
upon tt, 1 took them to be alt uccortUng^ tatlie
aci which nblif^cd u^ to take tbeoi, I detifoad
tbem lothe derk to examiuef and white thatvii
doing, ^tiuek n tally and entered *^ recetred ii
eaish," ■ tbat he paid in exc
billA.
107SJ for fake indorsing ofEadiequer BOh,
A. D. 16d9.
[1074
Mr. A Homey. Do yon remember any in-
ilorsement upon the bills ?
Peters. No, nothings but a name.
Mr. Attorney. Were they paid to you as part
of the excise ?—Pe£«rs. Yes.
Air. Attorney, Did you not endeaTour to
taiisTy yourself?
Peten, I took them upon Mr. Dnncombe's
credit ; hts servant did not tell me one tbiDji; nr
9lher concerning them, nor did I ask him, but
Urack a tally for the sum.
Mr. Attorney, Was it your lot to receive
Uiem ? — Peters, Yes, in a great proportion.
Mr. Attorney. Were they indorsed with the
4? of the month ?
PeterM, I saw nothing but the name.
Mr. Attorney. Had you known them not to
fcate passed through the excise, would you
bare received them ?
Peters. I would not, but the method then
iras DOl generally known, for afler that time
W€ received bilfs from Mr. Burton withctut
iMines, and sent them back to the excise^ and
they indorsed them.
fir. Attorney. When did you first discover
Ibat they had not passed the excise P
Peters. About three or four days after tliey
vrcre taken out as cash, and delivered to the
dcrin of the Million office, they said they
ctMUnot receive them, hut I cannot remember
Whether it was because they were not indorsed,
or that they did know the niethod of them.
Bome time after I acquainted Mr. buncombe
^ilh it that they were refused ; and he answer-
^ he had got his tslly for them, and would
net take them again.
Mr. Attorney. Did you offer tlicm him
Again, upon any discount?
Peters. I desired him to take some of them
vgaia, about 3,000/. worth, but he would not,
biit I offered him no reward for it if he would.
£. C. J. What, did you go to 3Ir. Dun-
bilf ■ ■
» to tell him the bills were refused, and
i him to take them again ?
\ Peters. Yes, I desired liim to take some of
1 win.
L.C.J. Were they indorsed ?
Peters, There was a name I endorsed but not
Ubday.
X. C. J. Who pat the day upon them ?
Ptters. The clerks.
L.C.J. Why did they put the day upon
Peters. Because the act of parliament says,
<lha interest should cease from the day of their
feng paid into tlie exche(|uer, and therefore it
IW thought fit to enter them on the same day
he paid them.
L. C. J. If they had been indorsed and paid
hj a brewer into the exchequer, it would hare
tied the interest to the king undoubtedly ;
t as you say the interest would have been
CMUMted sank from the day he puid them to
jnr^Peiers. Yes.
Mr. SolieUor. (Sir John Hawles.) Was
Acw toy loas by those bills being received ?
Petan. Yea, there was a little loss to the
VOL. XIII.
king afVer ; the interest should have sunk from
the time they were paid into the excise, there->
fore they ou<<[ht not to have been paid into the
exchequer.
Mr. Solicitor. Are those bills any of them
paid into the exchequer, upon Mr. Duncombe's
account, (a parcel of bills being shewed at the
same time) ?
Peters. 1 know nothing of that lock upon
them.
Mr. Solicitor. Do you know any of the
hands that have writ upon them ?
Peters. Yes, one of the hands is Mr, Pres-
grove the present clerk of tlie office, anotlier is
Samuel Edwards's hand ; another is Lawrence
Cook's hand.
L. C. J. Let me see one of them ; and look-
ing upon it said, How came it to be indorsed
upon the bill, * paid into the excise?'
Peltrs. It was the method of the indorse-
ment ; when they were taken out, we wrote so
upon them, because 1 received them as paid
into the excise, &c.
Sir B. Shower. The clerks of your own office
made the false indorsements ; it was their fault
and none of ours.
Mr. Attorney. They relied upon Mr. Duiu
combe, because he paid them as if he had re-
ceived them from that branch of the reyenue.
Was there any loss by the payment of those
bills?
Peters. Yes, there was 250/. loss to me.
8ir B. Shower. Your lf)rdship sees no\v, that
here is nothing at all but u man's name on the
bill, and that vt as necessary.
Just. Tar ton. Neither the name, day of the
month, nor indorsement, are in Mr. Dun-
combe's hand.
Mr, Attorney. We only say he brought theia
as such ; one teller scrupled ine taking of them»
anotlier did uot ; so that all the time the bills
remained in the tellers hands. Were not those
names set to them when they were brought to
you, Mr. Peteni ?
Peters. Yes, I took them to be the names of
the people that had paid them, looking upon it
asfomial, and knowing nothing further ot it.
Sir r. Powis. What did Mr. Peters take to
be meant by those names ?
Mr. Attorney. It is a prosecution for a crime,
why should he be asked that question. Would
yoii have reccivetl tiiem, Mr. Peters, if those
Dailies had not beeu -,iui to them ?
Peters. 1 believe not.
Mr. Attorney. Who^o names do you remem-
ber to have been put to thi:in f
Peters. I remember but one, that is Mr-
Frazer, and 1 took it to be acconling to the
act of parliament to warrant our taking bills as
cominsT from the excise.
Sir T. Powis. "What hills came to you, were
they not in several parci-ls ?
Peters. In three. .
8ir T. Potcis. Were there not some indorsed
as received in the excise ?
Peters. 1 looked but to one, and gave ths
rest to the clerk to examine.
3Z
imj
liWHjaAif UL
- Tnd tf Cfcyfai giwMwh;^ tnHS
' BbT.Famit. Tou ny «i
iWi. I «ir die nuM PrtHBr upcm om
tiOfttd of .all ofthemtlMitwtrataiMttoiiKir
fkf eheit, dwrowMiiocaiijof ttwrnbAdany
tbyw «ln apoD tkem biit « iMiM.
ififfT.Plpvti. DidymncilherAtaiaitiine^
iqriilMiy tmm after, tee tbajpoiD ofdioaebilla
' JtMi that haii mdoraciimiihi upoo tham at
repaid fartothoeaoiwr . .
iM* Not onaJ
ar 21 Pavti: Dad TM IbMir nbOilna, or
BVM aae tbat Mm or. 1,^/. ladMd at
nrari. llmoiriMttiiiag^ of it at thai time,
teallcrwirdt oodtritolMrtbai 1,900 and odd
. _ . wcM itpnariy lodoiatdt
BbT.Pmii. Wlim did yoii.h«ar that r
iVtri. IhtaiditatthanrlitmeqtHooaa.
B.8kmer. Wat there l,dOOl. rq^ulaffly
PMril Ihe«rdaO|biitkiioirllBot
Kr.JMikgr. .What cBtry did yao make «r
rirnn. igife
PMm. I gaf» it to the deilc to otaipQle.
—- *' -*^ Who had you that aooocmt
_, ^_ . _. of Him wore refolarly ia-
wMHif haditvoofimnaayoirthedeflitT
M. No, iWarditmmMr. Daneomhe
H^hatnetiilwDhogatemetbobiUt; it
waaaAff that, and 1 iraderat6od k.waa 1,396/.
, mt. Nmikijf. Howdid yoo enter thote Ult F
JPlBlfrf. I entered them in paroeb, at I taid
Mr. Northey, Why did yoa enter them as
jaid into the excise?
Peters. Because I took tbcm as such. These
three parcels were in covers as I received
them, and having seen one parcel, I gave them
to the clerks to examine.
Sir JB. Shower. Was there any interest com-
puted to a further day than the 19th that you
receiTed them from Mr. Doucombe ?
Peters. No.
Sir JB. Shower. Was there any indorsement
of the day when youreceifed them ?
Peters. No.
I%r B. Shower, Can you tell when Mr. Pres-
f rove indorsed any of them f—Peters. No.
Sir JB. Shower. Can you tell whether they
had the same indorsement then as nowf
Peters. No.
Sir B. Shower. It must be the fraud of Pres-
frove and themi
L. C. J. Sopoosmg that Mr. Dnncombe
hath no interest after the 12th of May, that does
not excuse him from having the interest to that
time.
Sir B. Shower. We ought to have it, the law
aays so. Mr. D'Acosta had interest of Mr.
Duneombe to the 19th. Were there any bills
in the parcel that made up 1,300/. and odd
money P—Pe/er*. I cannot tell.
Mr. Attorney. Call Mr. Pn^grove. Mr.
Pre^grove, on the ISth of July the chamberlain
Sef the Exchequer issued out some money bills P
Presgrove. I pAid ihem aooordiogly | there
I
weraUlbghwiiM^ertiioU^
par the aame with. , .
Mr. Jltomey/ Do ymilmaarif
(ahevirhig them)were|Ndd by Mr,
Presjgraoe* Yea, they wwe^ 1
faidoMd hi my hand, and tbemnra tmi etfML
. Mr. Attmrm^. How canae yos |b Willi ith
Joly, when the Vib were taken ciit iM ti^
anameopoDthemr
Prmrooe. I lumemhawi tlwt li Ifcf
hefare, £|»iae wna wratei^eD tlwm;' iai i
teded np the popen, hnvhiff,eaBitled tevdl*
mgngian them, w weoi^ aiOi||lit Jtap e^
■onj we toppote Mr« I/w^eoiMeevhiipl^
pie wrote Eicwe^pon the cgforef the fihi
welowidit'writlfla«M the hiliv£i%
wcretdranontortheMaf'tdM^
SurT. Powlk When iiegrwn
Mr, ENmeomhe, doyeknow Mtmnr.
wnt npoo tbeir eolaiae P
JVctfroee. Yei,npontlM(
faiwhidithekiniwert '
anyeftiie'kiRi.
Sir r. Pom. Can
UiiiHr.
Mr.IHenir
Pi
(i^Kf^lr^dd^^
Amtker ^ %U Dl^Mbtfa CiamrfJl
ftters remembert no ether mune kit MM
^eannot hepvt of tboat hilia. J^
nr. AUofwjf. Do yen ramembwafWa
i^l,S95f.-*Preigf«V9e. Idonot.
Mr. Attorney. Were any of those three ji*
cek marked with the day of the moolh nil
they came through the ex€ise ?
Presgnwe. No.
Mr. Attomeif. Mr. D'Acosta, look upoa th
names of those four bills.
D*Acosta. To the best of my
they are part of thote tliat I deltvered ts Ik
DuncoQibe; Arthur Pa^ indorsed thnitf
them ; I take this to be his own hand viijii^
Mr. Attorney. Was there any more M
names writ u^ion them when vou defifmi
them to Mr. Duneombe T—D^Acostm. Me.
Mr. Attorney. Let the jury aee tks:
[Which was done accordingly.]
Mr. Attorney. My lord, we have done am
our evidence ; we do not chai^ Mr. ta-
combe with having made thoaa mdunciaa^
with writing every name or aettingdoeaii
day of the month to deceive the trosteea, Jg
should not puzzle the canse^ It is plaia wKf
of fact we charge him with, that he caassiV^
D'AcosU'a name and others to hepnt ogpet J*
bills, and paid those exchequer billa laliil
excise as in the information.
Sir T. Povis. If they aredone, weareef eW
eel for the defendant. The nratter now IM
your lordship and the jury is whetlier Mf.P'^
combe hath done any thmg, oreomouttd
such offence as the fact is la& in tUtinlbimi
and if the fact be a dime withm i>>yj>f^
being or tbat was in Iwing when thatwIU
ia charged with waa done. WatueMii
077] Jorfake indoning of Exchequer Bills.
A. I). 160».
[1078
ourl of Uw, where the natore of the crime must
w tried, and that we are to enquire b, if it be a
cgml offimce ; for other power we meddle not
vitb.
£. C. J. Other power! lliere is no other
power in £uff]aDd but a legal p<iwer to punish
looordioff to law.
Sir Tho, Povit. Aly lord, 1 say other )K>wer
I Dicddle not with, nor with any thine out of
iiy sphere, but I shall shew your lordshiii that
hm bath nothing been done but by act of nar-
liameut and upou a right understaniJing of those
lets of parliament^ or that which wise and good
■en may take to be so, and then we shall see
bow it rodly stands in his condition.
The information is brought against him for
these two crimes, for we agpree as to the acts
of parliament, that he was cashier and deputy
ibthecommissioDers of excise, and answerabie
lo them for the money that came into bis hands
as their cashier. Hie information says that on
As 5th day of May, he was ordered by the
Bonmissioners to pay 10,000/. or more into the
Bxehcquer ; so far we agree ; the first crime
lint be is charged with is on the 12th of May ;
be had the money paid into his hands on tne
5lb, OD the 7th he was discharged from being
eashier, then he was ordered to pay, and says,
tbtt on the 12th be did buy 83 ezcnequer bills,
aaionnting to 7,884/. principal and interest, of
I^Acosta, to the king's loss of , and his
ova aniawfnl gain, &c
He pakl them into the exchequer afterwards,
«s if they had been reserred in the excise, in-
akised with scTeral false names ; this is all in
tfte information that is criminal, and this they
■ijf be did to the great loss and prejudice of the
kiug.
We insist upon it, that he had by law
|Mver and right to do it, for which the two acts
iMit be oonsnlted *, the first directs bills not
^loxding 1,500,000/. to be issued out, and to
^ Koeired and paid in any aid except the 3s.
It was not a general currency for all pur-
ttHBWfaatsoefer, but with this particular ex-
vplMD, and to the intent (hat these bills might
we a general credit, not only in {lay ments to
the king, but to the merchants and all other
frposcs ; then savs this act, after such time
^nsmiliesty shall by bis royal proclamation,
a%Biry that tne lords of the treasury have con-
tided with persons,. &c. then they sliall not
«aljr be payable to all reoeirers of the revenue,
kMiato the exchequer, for any duty or revenue
illhe king, by any person or receiver whatever,
i^ any account whatever : So by this act,
■iiy of the king'a receivers that liad received
■ooey in the country might have iM-ought bills,
iml psid them into the exchequer for money
be was to pay to the king, though it never
«is paid into the revenue, tbereibre we iusist
(ipoo it, that if we be within a less compass,
were is no reason for tftie prosecution.
JL C. J. If it be so as yon say, there will be
berime.
- 8ir Tka^PamU, It is oar great disadvantage
that the thing is to be taken to be otherwise.
I proposjB to make it out by the words of the
act, the last act which vhews that money
bein^ scarce, tliese bills were to supply the
species of money in every thing, not only in the
revenue payment of taxes, &c. but to supply
money in any payment to the kiutj^ ; so that if
any payment u hatever be made to the kiu^,
and though a debtor to the king, an officer m
any part of the revenue, or that paid liim next,
he might bring exchequer bills to the exche-
quer and pay the king's duty.
It will extend to any sum whatever upon
any account to the king, so to any person, not
only to the king's debtor on any score, but
to any person, though the king's officer in ex-
press words : This was the express meaning
on the frame of the act, we make these bills of
universal currency in payments by any man,
as if it were money, nay they shall have inter-
est for them till they be paid unto the king ; so
they were better than money, and by an es-
tablished method a man may make it mo*
ney when he will, by giving a recom|)ence to
those tliat exchange those bdls for money, so
that the goldsmitns desired rather bilb thaa
money. VVe can make money, say they,
every hour of the day by thea», and tnerefore
make it our interest to take them before money »
because we have 5d. per day per cent, till it
come into the exchequer, but it shall not be of
this conveniency till notice be given of the con-
tract made.
These receivers shall pay it mto the ex->
chequer on any account whatsoever, but they
have narrowed the contract and raised the
premium to 5 or 6 per cent, and so make
the contract narrow, and will exchange them
only if brought through the revenue, if deUver-
ed out of the exchequer immediately, as soon
as they found the bills sunk, then |>eople were
Cuzzled with exchequer bills, there were specie
ills and other bills, there were many that did
not care to know, thcin, and when they found
this puzzle they diil not care to meddle with
them ; they would not lie troubled with dis-
counting, and with the difference betwixt spe-
cie bilh, and those that were not so, for the act
doth not nHjuire the indorsing of that branch of
the revenue they came through ; so that if
tliey see what part of the revenue they came
through, they will exchange tliem, and if not
they will not receive them. It was those diffi-
culties and the narrowing the contract that
suuk the excheouer bills. Jf sir Francis Child,
or any other goldsmith, give a bill, every Chiki
will receive it, but if goldsmiths make a differ •
encc in their bills, and say such a bill shall be
a specie bill and such a one nut, there is no-
body will take them : your lordship will find
this to be the intent of the act.
The present case as to Air. Duncombe was
this ; he was to pay money tu the king that
remained owiug by him to the king. He was
debtor and not accountant, not that we make
this our defence, we do not need it ; but this
was his condition he then stood in. If he ha
lOnQi lltnLUiMUL 2Vtfff<Si«<teJliiM^«p>. 1^
h ■rr.Dito«ib» ; doHiy thtt, y«
1ft fa kni mHM HMMy . and omM
Wnulie
CTti
lawim bMhlbryimliiidSO,OOa(.iBluuid.
ttliigfato Ar Awn being ft Ikohjthat if it
iNn tbetoORn ofthe e»M|Mr fbrmeilf that
IhnraMifci* mifflittabrfag Ihe jwry nmmm-'
M wumm wnd ^mon tbtt thjev rcwfd Ibr
Ifm limnne, this net o««r-nd«s it, and aa^ if
I on anj aeeonot whatever, Arc
nea tlM aat, To. 80, Uia Idag ibr
_ tba aneiaot oanrae of tlie eaelie*
f« te. 'Tiien there eomea a daaee; that it
AmM not otend to vary or alter, &e. aa lliaf
itover rulea the eame of the exeheqnar, and
aa eooM not direet that payment in the method
of Afa apt sbonid be diaCofhed by this aet.
Hf. Dnii^fntie paid billa fbr l,59fr. Of. 5d.
Iqr hiai nioeived in the dotyof exeite, and ^egn-:
My Inddiwa the aame. The aet aaya, men in
eSabahonId haveinteiMof 5i. par davi &o. and
Man aiaaay Aom any office n |Mld faito tb^
dBJohcmiar, there moat be the name of the per-
daihaad. tlie day act down to atop iotereat, and
thoaa ^'he reeeived ao in bia office of '
dvanr one of Aoae the intereat of them ia Imme
diakiyMoj
ao he migdt, and probaUy he would
flatalyatoppedi aoMr. Doneombe acted re^lar*
H, Ttmy aay he might have carried in tM reat
iliapecia;
tev^done ao, if it htui not been fiyr D'Aooata, for
H ia not proy^ that fifr..Duncombe fished abont
Air etcneqner bilk ; biit Mr. D'Acosta know-
ing him to be a monied roan, came and asked
him if he would have exchequer bills, upon
which be sold him 7,884/. 9s. 6d, at 5 per
cent, discount. Now, if that be no crime, as it
is not, the act allowing bim to pay it without
discount, if he paid it so, he answeVed it to the
king according to the act, and so ho hath hin-
dered the discrediting of Uiosp bills, the first
time they were delivered out they were dis-
counted ; for, says D'Acosta, they gave him
these bills with discount, they made a contract
before they came forth, then he should have sO
much exchange and discount beyond the ex^
ohan^, because he was to be paid in bills ; so
that before ever they came abroad, they were
disparaged with a witness ; for, if the.
think them less worth than money, every bo<ly
will think so too. Mr. Duncombe takes tliem
with leas discount than they allowed them at,
ao that he rather gave credit than otherwise to
those bilU, they rose higher and the discount
was less upon them, so hitherto there is no
crime. Then the proclamation comes out in
the words of the act making the said bills pay-
able on all accounts whatever.
Then as to the indorsement, if that was a
crime, it was in D^Acosta your own evidence ;
he swears he pnt his own name to them, and
he knew no hurt in putting Wi^ name to them.
Thos^ bills he paid in to Mr. Duncombe on his
own private account j but those that Mr. Dun-
comlie had received m the excise for 1,300/. he
had abnacd the king if !fe had not indorsed them
he itemi thaaa, an ly^y aiiy wa^i
intareat Ant ttMn tin ba pnM
aaya. ware not Air Mr.
Ibr Mi awnaaka^ aadthaatofalaBl
Whan Mr.
tbia
V be hnd a mat Aid nf anal
lia*aii:wban
banUfril
iMiMM
in,taMMr.
anintbaaBfliaa^il
oaae worae} hut Hiay bavn
Mr* jPatsni ■ an nniWBi
bi»«wnabadidnol«aK
that Mr. Dunt^mbeisiiiftiietilti hell»Al
from accuiring htm with it, Ibal he <4eijalAl|
and ii^ayt, he ioH him tm audi thing. *^
We »hat1 pro? c distinctly ibt? pared ttakf^
in the excii^, thai it wii« a {i&rcel r^gutarlj m-
dorsFd. There wa? no occasion ibr tbdrl^ei^
dt^eeivffd, Ihey bud the oppovi unify of cannf
them up, Eo ilmt thi? wng a gtmd |fayia«ot a
point of bw, im^ the king ImS no ibrii»g«>
Sir B. Shoncrr. We BiHmiit it to (b« coadfr
ratioT) of}' our lordNhip anil ibe jury iipiolM
evidence, if it^ had any iiifention lodtfSmodiki
king; we shall shew we con Id not haft iij
sst waj 1
and Mt
for the inierest wai to ^
such mtenaoo,
when the bills wer« paid tti.
Bfrears the loaa wai hia nwn aftd nol ili« ka0i
fit) that tlie king hod no prejudice m hd,
D'Acoptttdischarfrt Mr. Divncombe frotn i«
desigis to delVaud the king> h^ *iiy8, il w«li
oirn mottoti not Mr. Duiicombe^s. Thetiiflrw"
fiect of that oci nbout lb*?iir iM^ing rectrtedi*
the es chequer, Mr. Diincoinbedid noltrlllls
Ihal ttiey were paid into the Kxei»e» Mr. I^
combe's man toltl Fern at ibe s&me tmaM
t he J were n ol pa i d into the excise . Then n i>
pniof that he paid Ihern as such j on ^Mfcif
hlavi kie was directed to mftke lht» pajai*!
on tne Tth of May he was reinored ; m ^
l£th he paid thuse bitis into the exihifisi
judge then if lh<nre can b^ any prkNwi n
satisfv the jury thai be de^i^tied a deceit «|M
a distinct parcel bein^ l|30(Ji. are mratiearitl
fre taken in the excise, and the other aal*
Peter a pnssetl tliem, and so it li not poa#b
there coulti he anv deri^it m thi*« matter. H*
bills were in 3 parcels, some of tba ciali
must take notice which came fhnn the attaa
and which not: the interest waa cast aptala
12lh of May upon 88 bills, ao tij a iT . s n^
Icnow they came not all from the exctae. ^*F
the other point of Mr. Duncombe's b^
cashier of toe excise, had thehr money in ^**
and paid it in exchequer bills ; tt^e jurj w*
consider if Mr. Duncombe did pj thrm il
comiugf from the excise, Mr. Duoconilei*'
havincT siqncd or indorsed thefn aa
If Mr. Duncombe had been i
paid in the money, the first in
to have been for paying that in atfcari^
ferent frotn the eoin he waa tOfay-iM
1
081] Jorfdte indorsing of Exchequer Bills. A. D. 1699.
[108S
iticlfls to the coDtnrj. Bat tbij was a
layment •• debtor afterwards ; or it* Mr. Dud-
iooibe had died, hia executor mnit have been
ued aa another debtor, and be migfat bate paid
D theae bills as a lawful iMiyment. Exchequer
lilh rose upon an exigency of state ; page 130
rill tdl OS the frame of them, and the reason
(fissuing them out.
Then the Clause was recited.
This transaction was after b(fth the acts,
abcn botli of them were in force. Another
cbune provides, that the receivers of the reve*
ne aboald out of such milled money as thev
bid ID their hands nay the value of those bills
to any nan that offered them, so that the re-
Kiverawere obliged to take exchequer bills,
•d to give money for them.
The second act makes them generally cur-
at, indnding the tliird aid ; and also at the
naipt of the excheouer from the said commis-
ieoera receivers collectors ; but if it be said
bene worda do not take in the cashier, it is
■d in anolher place, any other person or per-
■■a, eertainly this will take it in, no man can
«e words larger than. those nniversal terms,
■y penon in any payment on any account
rkalever ; but there is yet a stronger than all
Us: the act of parliameot was Mr. Dun-
•■ibe*B rule, he was subject to take notice of
he eootraet bj wliich they were to exchange
H bilk coming through any branch of the rc-
"CBiie or not. The second act, page S3R, was
ead, and page 592. The two proclamations
Mre aflrreeable to this act.
Mr. Doneombe was far from anj fraud in
hii matter, we must open tlie evidence in this
■tiff to remind yon of it, and so went on as
Mfiwc. Sir. Duncombe doubted the doing of it
vhn he was cashier, but Mr. Burton made no
sniple to pay those bills when sent up to him
a Billed money or bills. But when the mat-
m came to be questiooed, he consulted the
Muniflsioners of the excise upon it, thej dif-
bcd in opinion if they could take them from
Aceii is eflkers, Mr. Duncombe was obliged
• pny them to the kin^ as cashier to the com-
■Hionerji of the excise. Mr. Burton upon
Ua, between the 7th and the ISth of May, re-
cived and took excheijuer bills, for that which
Inold have been paid m milled money or gui-
«By or speeie money received upon the excise,
ad Mr. Duncombe having notice of it, Ihonght
le B^t as lawfully pay them to the king, as
f r. Kiiton might receive them into the excise.
If. Bnrton paid in excheouer bills for what he
lid not receive so, but there was no notice
■ken of it. He did for six months, till the con-
nct made them scruple it, not that they thought
t to be an offence in them or any one else, all
be oficers made use of these exchequer bills.
Bat BOW because the contract was made, they
mjrted whether they should pay any but spe-
tie kills ; we submit it to the consideration of
Mr lordship and the jury, if Mr. Duncomlie
■d Isken exchequer bills of his own he might
■ilhatvpBidtlMiii unto the.king as money. If
this was then the received practice and opinion,
though that would not excuse in all cases, yet
if the words of the law be with us, and if the
reasonable construction of the woi-ds of the la%v
be on our client's side, we hope the jury will
not bring him in guilty. If the practice be
that which wise and good men, such as Mr.
Duncombe is supposed to be, would have done
in the like case, we hope they will not find him
guilty. If there be such words in any act of
parliament as oblij^es particular officers to pay
in the individual pieces of money they receive^
it is beyond the memory of man that ever auy
one was prosecuted for not doing so.
In the act, the proviso respects auditors, col-
lectors, tellers and receivers, we insist on thi»
proviso (which was read. Provided always, &c.)
It shews that they had in their other law made
an alteration in the method of paying it into the
exchequer ; if in the other act it be said, it ia
to be at the receipt of the exchequer, &c.
Serj. Dolhin. Mr. Duncombe had a right io
pay it by the act of parliament and ^ roclama-*
tion ; no man that read the proclamations could
tell what was specie and what not ; any man
that came to the exchange could not imagine
that the contract was narrowed, because the act
of parliament led them into the mistake ; if it
be their duty to receive it, it is the duty of the
subiect to pay it ; but they distinguish his case
and say he was cashier of the excise. But we
have proved he was not so then, so that this
part of the information must fall ; but if he had
oeen cashier, it was not his duty to pay it in
specie ; if he paid it in current coin as these
bills were at that time, there was no fraud at all
in it ; so that that part of the information u out
of the case; and while he was cashier and aer*
vant to the commissioners of the excise, it was
their payment and not his; he struck bis taU
ley, so tbat the payment %vas by them and not
by him ; but say they, they were indorsed in
fake names, but that appears to be nothins' at
all by the eviilenoe : the act says there shall be
indorsed tlie name of the person that pays, and
the day of the month, but we did not pay it in
till tlie , indorsed without name and date;
so that this indorsement, such as it was, was of
no signification, but the indorsement taken no-
tice of by this act says, the interest shidi cease.
The bills thus paid in were paid in part of
the 7,800/. Mr. Peters does not speak ad idem,
Mr. D'Acosta believes the bills were the same
that Mr. Duncombe had from him. D'Acosta
says the bills that he sold to Mr. Duncombe
were indorsed, See. but none of those that Pe-
ters had, had names ; none of these tliree par-
cels tbat he had, had any names, but one that
had Frazer upon it. Those shotied to the jury
have no names : we have the right of the king's
subjects to make payments in exchequer bills.
There ia a penalty in the law ofexchtNjuer bills
be counterfeited, therefore Mr. Peters ought to
make it apiiear to the world whence he had
tliose bills.
Mr. Norikey. My kird, I shall bo; leave to
•tnte the material poiotv in the inronnatMui,
MBS]
11.WILUAM UL
■II
I ibiMI fMu at tiM tertieuli
Ihit tfilv wm -Mid mio ihe
HMgf hsftt pm&i in 4m iiiAN
ttMB ily.it ill1MtlM«ll0W«d ft J
•mflMwet, might pay* in «sdi
A W DOt «||0 ftlMtlOB, tlUMttil if H
Diiy tlie act B6 migl^ do It
oaaliM k drns wlMtiMr Mr. Dam
itii|Vlain
ToeMietioft m Hn^ wbcttM
«Im BftM tbem il^ Mad tlMOB in «c ti M if tiMV
htd ba«i:TMei¥«dnlbeeiaiMbjlKiii,uidir
•• Iraly iodoncd ftQOordiBg la iIm act, w|tiS tiia
ttia&*a naae iImI paya tiMM is, and tlie dajr
whanbapayatbams thagr ara paaitava wa did
. do ao; we are poaitiva ta &a
Hterad Mr* • Pataia aat and
IwillitliaBMn^
;
and the daya
ii thaaa we laid him we leeaiffod Aoaa
Tbia-malnaanand af ilua infor-
or witnamaa prawa it: weehaarftt
Ihilijy hk own endapice it waa jmapawbia. it
ahanlf hapaid in, aa narifed iij iia.ior esam^
iir Ihenfll amoina the indorainff to alop the in-,
ft, hoi TaiaiB ■nwiiid iiiiaiMt foi thaaii liilh^
mihe Itth of May ; Mr. Doncomhe waa dia-
ehamitherth of May, Mr. Burton eame in
Mapiya,.and.told PMam who knew thk, thai
be.itaildanow tham ee it to the latb, whaa
Mtji Doneembe was diaohaigad on the 7th,
TUa demonatratcd that be 2d not teU Mr.
VaUnithal be raoaiTad aU tboaebitta feres-
Ma} he caald not ttU him be raeeif ed tbam
that day §x eaeiae ; thia ia postif e proof in
the matter.
We observe furtlier, tliat Peters witnesses he
look the bills by consent and delivered them to
hit roan ; be did not ask him it' they were rig^ht,
be bath a memory for that, but though he
knows Mr. Duncombe's servants, be cannot
remember which of tbem brought the bills to
him. But we have the servant here who will
refresh jiis memory, when Mr. Duncombe's
eervant brought tliem those bills, they say they
had not seen the act of parliament, and that the
lords of the treasury had given no directions in
it. We shall read the king's proclamation of
the 8dd of April 169r, to shew that if we were
mistaken, we were led into it, by the best
exposition of the act of parliament that could
be. Then the proclamation was read reciting
aH the clauses or tlie act.
Sir B. Shower observed upon it, that nothing
could be more olain, but least the officers
should mistake, tiiough he could not tell how
Peters could. Jt says we do hereby, &c. en-
join and tellers. There is Mr. Peters.
We have this for us, what can be plainer ? It is
Slain by this first witness, there is no fraud in
[r. Duucombe. This man told them that the
hills had not |iassed the excise ; then, says he, J
cannot receive them, but he cannot tell why. It
is plainly contrary to the proclamation, which
eiyoioed him to receive them. Peters should
have nten if the bills had been regularly in^
dorsed, be took them upon credit ; and here-
upon it ia alledged agamst as, that we paid
fUf if
lie iMlfa done. It it luul been eDmctedgea^r
rally before, if allowed b^ ihe commisnoiicn §1
the CBCise afterwards, luiii by t\ie direclieiif
fjke hwds of tlie tri^asury. It is hard for lb i
to be pro<seciited for such iii«f»|
t wbat lie did wo^s doite in many m* •
b«l^>re^ but wliedier their practice iDi|
him tbt^re m no ueocssLty of aii^nijief !
erd' reh iag upon, llj&t be is strictly jut*
tiied bv the law, though where m peraoa iiia^
dieted^ a fact in its own naUire doulitlult At
praetiee brothers may givesooie tight lowa^
the vindicatiiig or condemniug^ hitii. TkHi|l
Mir. Dancombc be gq indicicd, there is iKrt om
fiMal alledged apr^inst him sufEckot to Mm
^kmiuty to beliei^e bim j^tiilty.
Tnetoformatton IS not for htspa^iiig^iltf
money, or if it were, the act iaiW
to it. Had Mr UuDcombe brni m
lor that, the aoswer inu«t h»r« ^
the eel itself; and $uppr)f>iijf: this faot bad Imi
daajgnid to be done betbre the act^ it cmdl m
haie bt«n baiter excused than by thk aa.
Tbe exchequer bilU were not fftbrljf m
* tbe ill form atioD is mistaken iu ilM
there ts no other iadoritmeiil be
what tike ad describes, and o tiaioe widHil
a day mentioned i^ nothli^g ; it was tbrirffdl
they took them m p^id iuLu Ibi^; exci&c, WmI
looking upon tbe Sd parct'l tbvy paid t!if«a a
as beiny; truly iudorsied* It id the mmt sbiuti
thing iu ibe e&rtb| that we sliould come to ftf
bills that bad not tbe dsy of the mooib tfm
them as if they had bi'en paid iolo tbe «sai%
as if we bad not coouuoti sense ia see thit l&i
exchequer uould not be Impmied opon ia M
manner.
In tbe next place, it woufd not bate bis
criminal hud he paid tUem so. If a persoa UA
receif ed moocy, and told them timl be 4i4 !»■
ceife muDcy tor the excise but bills, tbcutlif|
had proved Uicir inform aUon, but tliey uj hi
paid them in as if t bey had beeio reoritedit
excise.
Your own witnesses put it wholly affli
these two. If you Ikil in proring tboMtm
then we must leave it to the ocMisidBratisaw
my lord and the jury, whether yoo hatepnili
¥our information. The 1st witness sm Ifcv
Duncombe's servant disowoed it, and ih
fore be would not take them, the other
he takes them ; so that what is criminal i& dflOj
by the wituess, he commits a notorrous fr<iiiiia|
justify himself, and makes lalee indoi^mijino
if we had done it. g^
Mr. Munday. How far the feet chami
the information is crimuial bath been bi
taken notice of. — It is manifeal fieoB U*i0
evidence that he was the first panon ibati
a contract about exchequer hiUi | n^
lords of the exobeqoer Ibea^arifaaM ml
^ they would have, therefore tbey i
^ract with Sir, D*Acti8tR, ttllowintf ^
exchange ami {tisconnt upon the
tries amon^r the brokers bow he
em off, aufi at lii!>t timli out Mr,
Itnowing^ bim tn b« a raonieil njan»
-A.«€j«ta's ret|u«sl» Mr. Duncorabc took
%.licHie bills at 5t. wr cetit. dhcount,
^^^^ .'t^^uch less than the fords of ihe Irea-
^ YT ^ ^iscounte<l to Mr. D*Acosla, tliis is
^V^^ ^*^ advance the vohie of th^jse bills ;
Bfci^t-^^ *^«rxt rontracl Mr, D%Vcosta made with
^E^^^^^ it was for a much less value, so that
^5^^^ ^Of the purticular reputatiou, that Mr,
Jlte ^^^^ &a*e to those bi IN thai they were not
ii_?*!\-^^«^erialaed. It is plain, iheojhat he did
I *^^**^«b the credit of the exehejuer bills.
l^^ ^W next place, it is af) plain tlial the king
/^rt*tio% defrauded far the discount, J must
^y '^ say?; your own witness. The interest
^twi \i^ allowed (o ibc time they were brought
Iti, l\ier€'i?i no coulradictiou, no deceit there ; so
tJiat it 1^ manifest that as the fact was not cri-
iniafil, oeitber was it done for aoy such pur-
jwie as to defraud »be kiu^.
inn the country collectors and rectnrersbad
c«%Jt iri thtir liantls from o!d money carried into
the country raiiitSt and tbey fjive billa in Lon-
tlnn i'r>T f^old or new milled money, yetthe mer-
*y it in those bills. Consult the kin&f's
:, they will tell you that it would give
Qfciiit to those hills for the exchequer to take
t/ieoi, and if so it was beyond contradiction an
^dfaDCeinent of their reputation for Mr, Dun-
^oinhe to buy those exchetiuer bills^
Mr. £yrrj. I shall put 3'our lordship in
initiH of a case that was before your lordship
in the GuildhiiU of London^ but I do not oiFer
it as the oflence in evidence. Dyer the news-
utrtter had an information preferre<l ag^ainst liim
%i having wrote a news-letter, with tk desie^n to
casta sinr upon the justice of the kingdom,
coBcerningf the prosecution of the gentlemen
for the LaQoashire plots, and iayingthat in Mr.
Staodish's house there fias so many arms
found, that hu> say, so many birding pieces^so
many hunting sadcfles, ^c' but there was no
such things found ; though this would bare betiO
in ofleaee, if it had been charged that he did
Lwith a design to scandalize the justice of the
ktkili, and as not haTJng told the whole truth,
Init having charged it upon the falsity of the
tnfhrmation, he was acquitted.
Zi. C J, You mistake it; it was upon a mis-
take of the session of gaol delivery that he was
0^aitted ; the mefining of the indictment was
fbr ndicultng the Flots.
Mr. Eyrts, I submit it to your lordship ;
the ijocstion now before us is, if there bath
been any fraud or deer it committed by Mr.
HiiRCOiiiDe, what a coudilion wouhl many peo-
ple lie to ? if all that nvied the kio^ nioney,
lliiHitd have infbrmaltons brought agiuast ihem
bere ui the court of King's-bencb, that they
Jiavc not paid the kiu^'^ money in specie but
btllf, with a design to lessen the credit of the
c<eb«|U«r or to delraud his majesty.
I
I
The question is, whether the king's
receiver having actunlly in his hands the king's
money, whether he can iletain their money to
bis own use, and pay the king in exchequer
bills, and if those receivers be robbed, whether
the king must actuall}' answer it* If a bailiff
receives \m master's rent in the country, and
keeps the money in his hand till he can coo-
venientty pay it, if he be robbed in the mean
time he shall be allowed it upon his account ;
but if he put the money into another man's
band, and that man be rubbed of it, be mighl
be accountable tor it ; so that I 4fo not see the
taw dIIows the king s otHcer to convert th«
king's mouey to his own use.
Then the JS9lb page of the Act was read.
Mr. Brawn, Mr. Peters tells it, he obargea
himself with so much muDcy ; it is impossible
the king should be deceived, for Mr, Peters
discharges Mr. Duncoaibe of so much nioney
paid.
IMr, Attorney, Let them go on regularly ;
sonoetimes they go on with law aod theu wiiJi
matter of fact } let them go on with their evi-
dence first.
Mr, Brcwn. Tliis we prove, that Mr. Peters
was teller ; theu that he received those exche*
quer bills from ns ; that he owns the receipt
of them, and those bills to received are thrown
down into the tallev-office, and a talley is
struck trom them, wuereupon Mr. Dun combe
hath his quietut ; for that the mistake is in
Mr. Peters, and not in Mi\ Doncombe^ for
Peters ought not to have taken them if they
ought not to have been taken, hut it is plain be
charges himself wiili the money actually re-
ceive, 90 if the king was no sufferer by this
transaction, we shall show that Mr, Duncombs
was very fair, and if they had not been wilful
in the thing, they might have distinguished be-
twixt those that were regularly indorsed as
coming through the excise and those that were
not.
Then the I30tb page about Ihe Capitation Act
was read, afterwards tlie *2ud paragraph.
Sir B, Shower observes, that the 1st act not
on I)' allows them to pay exchequer bills in for
the aids, but allows the payment ol' them from
those who have the receipt, the receivers have
the liberty of paying it. Read the next clause^
we shall shew your lordship that the king de-
sires those bills Vat her than money.
Theu the Clause was read.
Sir T. Powii^ Your lordship sees that upum
the first act adapted to pay the aids, money was
scarce in the country, and Lheretbre it makes
those hills not only payable by those that re*
ceivc Ihe revenue,' but a breach of their trust if
I hey did not exchange these bills for tnoncy,
so that if { had exchequer bills, 1 go presently
to these men the receivers; and say, take you
the bills and give ine money for thetn, mod
they are obliged to it to give credit to the hills,
and to stop the interest due upon them frotH tlie
11 WILLIAM III.
Trial <jf Charles Dtmcomift fff-
I
Icin^. If the Hilts he not hroujrht in, then die
receifer kept the mimey nnd the \h\U paid in*
tewa. to tliat it in better i'ur the \un^ to have
th« hills than the money.
L. C J. But suppose exclieffiier hills come
to the receiver, aod the receiver huys those
hillsi iJoeA he Jo well in thtl f
yfr r. Pimii, Yes» he dei'rauds not the king,
for if Mr. Dtmcombe had brought hi« money
In WestMUDster-hall, I or any man nn;(hi hate
stopped him uid dcmnnded money for exche*
quer bills au^l it would have been a tault in
Lhtm not to hare given me money for them*
Mr. AUornt^J The extent of the Act is no
further than tonioney naid on tlieduty charged
that session. Read Itie rluose, page 132. —
** And be it further enacted/* &c.
Then was rend the 2d act, page 384. — ** And
irhereat by an act/' ^c.
I« Sir £. Sfutwer, This clause is plain, it ought
ID hare Iteen paid into the exchequer ^vithout
Gfftning^ into any other aid, aud he shall be al-
lowed interest till it lie paid into die exchequer,
«o tiiattt is payabletnto the exchequer without
coming ioto any branch of the revenue.
'Then the next clause was read. — ** It is
hereby enacted/* 5cc»
Then page 3»8.— " Provided always/' Sec.
Then pa^ ^22* — " Provided, nevertheless/*
Ic.
Then page 593.
Then the Proclamation of $3d April, 16^7,
which isir B. Shower observe<l was before the
f 2th &f May, the lime when Mr. Dunconihe is
accused of having defrautled the king* and that
Mr. Peters was enjoinetl by that proclanaatiou
tp take them aj a teller.
Mr. Northey, Subsequent to this, there is a
•lause in another act already reacl.^'^-i-Then
111* Prorlamatirni oiJu\y SOtli, 1697» was read*
* " ■ We don^t in^iiA upon these thiugt tojustify
the fact, but to shew that this was the tifciicral
nrectice of all persons whatever to take tlioee
Call Mr. Cooki Mr. ^heldrack, and sir John
Foch.
ftir T, pQwii. We shall now prove that there
?re hills drawn by rnaoy ,in the country «
Mr Mheklrack, pray acquaint my lord and the
jnrvt whether when receivers lo the country
hud ilie product of old mon^y reosined, paid
back to ihein in milled money, whether whr^n
they draw bills upon merchauts in Londou W^r
s# tatich milled inouey of the kiosk's in their
hands, did th^y dmw the^ bills expressly to be
|iaid in mil led money and ^(M, anil wnelher
they came with exchequer bills, if yoa^took
those bills or made them pay monev P
Mr. Shtidnick. In May, iec>r/l had appli*
csition made to me, having- tiie rare of the bills
<if exchange. Merchants came to me and urged
me to lake exchequer hills m discbai^ of the
bills drawn upon them, upon whicli 1 went to
fif. Dujiooiii^ wImt w«t lli«ii Guhitr of tbc
I
I
excise, and acrjaajti '
t here was anew ca*> .
aifoiu^ outf apd th
for a day or two, te I ^
ceire directions froEii the ui:'^
werx^utd not receive hiMf y€-\
of the accounts of *2'
to lie made uti andtj
combeand Mr. Burion t »n thr, ijiii{
about 11 o'clock, 1^1 r. Duncumbe
office, the transfer was uiii«Ii£, «imI all
and notes examined by Mr. Borloa
brother, and as soon aiii they were Bali
were bills to au^wer the siuns, 3fr. Burton
chargfd Mr» ihincomhe.
Sir T, Po7fi$. Had you ever aay
ahout takingf excbe(|uer hiiU f
SfieldracL Mr. Burton told me that the
chequer bilU bein^ uewly issued, it
B!^y to credit them as much as we
same directions were g^iveo to the
and I tt^ld them it was proper they
tend the new cashier for his #rders.
i^ly r I, What money did yon
in e\ Is?
6rW ..*....... 1 rom the 7^'^
of October we received *
pay meots, mak 1 1 u ► ? i r n
them bills mad
jiey, the value ,
[iressin^ whence tiiey paid
two or three that enter them
to roe, that can witn^
8ir r. Ptmii, Hi,
gold money darii^ <
i>heldrnck. BeCWf
2 2d of Oclobei t'
more exchequ^
13 2 f/ :■' " ' * 'II, nuntiji Mi'i'«iL\
b. Won this Vkli
comu» — ,.,ri-v,i J
SMdruck I gave lliera an aoooaiilcC
under my own h^md. tiud cnrtioisarly tins
when the sum
chequer bills an I
8ir r. PmU,
for a ?
Skeidmck. No, Mr. Duncombe nkct iini
ilker* and asked uie how I hkod Mr.
our new cashtc^r ; 1 auawered bioi J
to be a veiy hoaest |>^entlefitaii. TliCfi
me what 1 did aliOut excbeauer hQIsf
swered, that Mr. Burton orocred i^e
them in all payments. Betwixt ihm 7tb
and the 12tlu we recsiied 4,00Ot in exdbopv
bilU, upcm several bills of exthutgK drAimwP
the country by sei^ral raeilicf>» aoott of liiaB
payable at 20 and SO ikys iiA#r dale,
the UZd of May, we had hilb in
100,000/. n^ost of them ooeordiu^ lo
timo, at S8 or 30 days after dal#,
that it was 40 days before Ihcy
and ivere not usually uaid in tliree wwd
und then paid in eximqiiar hilh aod
count of 7{ per ceiiL
Sir T, Fojifit. It wn belter for ibe
be io the cottotryi aad for lbe.kii^ to
*^^'- *"thrt
< m I
d and rndleda
he col Ice Ion, I
'' rt J
f y m
v, t6QT,ai
knnim to
f»o itiitDbiBi
stilled m9m$m
I>id iUey ever repnwaji
1089 J for false indoning (if Exchequer Bills.
kh^ for vrh#n they cattle in the mterest ceased
Dtiin^ fMJ in the cuyol ry, so ihat ihey dirl ir
to con»i<1eraii«m of ilie kitit?*s iiilerest — Mr.
^ehlrackf when you had biLh di'awti at 30 days
111, wtMiltl ihey hive pairi them sooner if you
I taken it la exchequer bills f
IShridrack. No.
Ijr T* Pitcis. How do you know thai ?
ISheldruck. I am rharered iiilh all liills, an<f
re Kivfn tutt bills seveml times, ami the klng^
ng to |iay 5rf. ppr cent ^ler day, it looked Hke
eat abuse, ami I hey i>ug^ht to have piven
Beral directions m their collectors tn pay it at
: days s^^h^, u|)on which sir Julin Foach ant!
lordereii us to atier the intthod of it aic^
* lo the tra'le of iht* country, and orderetl
bttU were not paid in twelve davft a tier
came dui% to return them to the col-
hbey came from.
Be of* tht King*» Voumtl. ]Vf r. SheTdrack,
did take ejrchequer bilk from the mer-
ata iustead of lhc«e \\t\\*^ diJ you ever kuow
r money brought up to town by the receivers,
ccl)equer hills brought iuto the revenue
id of money ?
'drack, I know nothinc^ of that.
rr. Foais. Those tnercliant^thit accepted
inilleil money und j^fottl, if you had
upon them J they were not able to pay it
ey at the eml of the lime if" you would
; fiave tiik«n hills front them?
fSMttdrack. f lost twenty of the best mer<
Hts^ that paid BOO.OOO/, ; Mr, Walker and
oy, ^muel Trowel, Josiah Hityardi 6cc*
Bute I would t]ut take any moi^ exchequer
Br T. Pou>it, Did you use to exchange ei^-
uoer bills broug'bt to you ? — Sheldrack. No.
C. J» You make fuuch of this^ because
expressing- to be paid in gfold and money
aid ill exchequer bilU^ was it therefore a
By meat ?
*, Shatter* These collectors carried in
Bey to the mints ; they had it recoined,
ad ot'»etidin^ it up iney gel gooil biUs
By able in money or ^idd', and yet mer*
if-paid it into the excise in excheqiier hillii;
lews that it wax the public pi act ice.
[7. J. But you seem alii I to infer that it
I and lawful payment, and would im-
'iipOD the courti but we tell you it was
bv there was no necessity of taking it so,
merchants were ohligeil to pay them in
BiUed money or guineas, bat thi^i that you talk
of is done by consent^ whereas you ullcdge that
it was good in law.
Another of the Kirig\ Couvsei.^lle consult-
id his merchants about it ; he thought it was
belt to pve credit to those bilb, but they did
Aol Bay that it was to be dime by law.
Mf- Montague. Mr* Sheldmck, when the
colleclom paid money m the country had they
■Ot the beuefit ot'ili<»rotuit in it ?
SkUdruck, Nodoiihtol'it; the collectors ona
nd the merchant one half
\M. Skowrr. We say it was so far from
I cheat that it was idvnDtageoui to llie
VOL. XIIK
A, D. 1699.
[1090
king ; we do not ui^ it tliRt it was a good pay^
ment, but that it wa>» the* opintoit of ttiose thiit
were trusted witli the king** reveaue to make
thtir bills current.
X. C, J. They hud authority to do to.
Sir B. Shimer, They hsd uo mora than tfa
law gave them,
Hir 7*. Pawhi. All that we use tt for is tbisf
we are chnrged whh fraud and a design to dB
ceif e the kmg, whereai it appears that tho
officers ititruHted with the revenue thought it i
far finom heing so, that when they gavr hjDs l«
be paid in milled money or gold, they look^'
upon rt to be no deceit, but allcHved il.
Sir B. Showfr. Mr. Duncombe did not do I
tilt Mr. Burton did it.
Another tf the Defendonth Counsel . Did th«
priceof exchequer hills rise or fall after yd
were forbid takioi^ them?
Shrldrack. They tell.
Q. Had you any direction,<j from any I
else but Mr. 'Burton about them P
Shcidrack, No.
Q. Had you any directions to indict
body for it T—Sheldraek. fio.
Q. To sir Jotm Foach. What applieatin
was there made to you and the other commii-J
sinners of theeicc»!*e alxjiU these exchequer bilbr
Sir John FiMch, Mr. Burton, in two daji^
afler his entry upon liis oflice, came and ao^
quainted us luat there were a grreat many hills^
as Mr. Sheldrtck f^ays, and the merchants
would not pay them but in exehequer bilk, upon
which we ilehated it amoni^t omseltes and
ronanlted the act; and upon the clause, p. SB4,
some were of opinion that the parli.iment had
made exchequer hills silver and gold ; unon
which we represented it the Tuesday monuiig
following to the lords of tho treasury, and dis-
tourtied with them an hour or two uf^on it;}
The lords debated it, whether the law w<is i
or not, and at la^it desired that Mr. Attornejf J
and Mr. Solicitor should attend on the Thurf*|
day following, when Mr. Burton and Mr, Kno
waited to know their opinioDi and they told iii#l
the lords had given directions to lake tliem |J
alter wfaich^ they were taken to a great manyl
thousand pounds without any contradiciion.
Q. How did you know the lords of the tres*
*ury ordered it so ?
A. We gave credit to Mr. BurtOD> wiio lok
tisso.
8ir r. Powii. Had you any directions froB
the treasury to the contrary ?
A. Not till October following.
Q. Did you attend the lords often f
A, We attended them ©very week ; (hi
knew thatsoch payments were made.
Q. When was it that you first attended the
about it?
A, 1 1 was betwixt the 7th and 13th of Ma^^^^j
■a day or two after Mr. Barton came in.
Sir T. Poipu. The lords of the treasury trave
power to tssne out those bills in such a method
as they thought proper, hut could not vary it
from the act of parliament, so that there was
itothing to make it crimioal but tbs opinion of
41
WMra ot' the excMe.
Jl^CLX MiMlwetlMNimWQf tlwi
'Sr r. Paint. NOyWa do not My i*^ Wit
tht ionr mint not tluok that ife acted lirwda-
kntlTiB the matter.
' 'qftkeDrfaidttme8C9MM$el. It was
do|»pion at that time, aadcaaatantly
Jy the torda ef the Uianuijf appwwred it
ipaynMuta, and theooipnuamiianiofeiclaa
' Gomtantly baibie the locda ef the
If r. 'Cooper. Sir John Foach» iipoo what
eooaidctatMm waa it that thoee hiUa were al-
lowed to past; yoawerementioiuiigaoai^rea*
aonaoT state why those bills were allowed. to
hetakcBr
A, Some were of opiDion we ooold not by
law reoeire them, others thought it was fit to
five Ihem creiiit.
Q. Yon said there were some merehania
refiised to pay money, bat only in exoh«|ner
A. Mr. Burton told us he was so inibrBaed
^hiaoflkers.
. Q, That was then one leason why they
wen reoeired r
A. The lords of the treasury permitted us
to raceire them till October folfowmg, that we
we prohibited.
Q. Was there no notioe taken that you had
avad them so, by those that prohibited youf
A. Never that I beard of.
Sir B. Shower, It was reckoned gooil pay-
ment in every body but Mr. Doncombe. Call
Mr. Fitcb, Mr. Sturton, Blr. Dawtree, and Mr.
Milner.
Q, Mr. Milner, M'hat do you know of the
payment of exchequer bills, tor bills drawn in
milled money and guineas f
A, I had all from one Petit in 1697, and he
told me if I would I might pay those bills in
exchequer notes, which accordingly I Hid for
what bills 1 had drawn upon me to be paid in
new money.
Q. Did they insist upqn it that you should
do so?
A. They came to me and told me I might
do so.
i. C. J". They were hb friends ; suppose a
roan be bound to pay wortii in guineas and
ailver, will paying it in exchequer bills be a
good payment, or a rule for others ?
Sir B. Shozcer. No, we do not say that this
is to be our rule, but we Kay that those that
consented to take exchequer bills in lieu of gold
and money, designed the public beuefit.
X*. C. J. Had Mr. Duncombe the same de-
sign ?
Sir B, Shiwrcr. Certainly he had, for we
obliged Mr. D'Acosta, who might otherwise
have gone to the brokers with his bills, and then
tbey woukl have been 10 or 12 per cent dis-
count
L, C. J. It is imposin;^ upon the court to
8ay» becaose some did it that th«rafore it is
lawfnl.
tfaid^itft
X.C.X YeiiMkte
firlftsuPswJs. Mr.
exchequer bills wspe
the eieha officer
A. I wwi enplsyei hj
aboettheenWor-- ''
deraUe nuidieror
nuae of the-p^non or
upon theae tliatwan
tbcre wero bills thus Mndttlj
1,500 and odd poonds.
0. John Cook, do jsnkoeir sa/ilsMrf
the payment of the saaw Ub iala the «.
choppier JhNB Mir . Doaeonbe lo Mr. Mhi f
. J. CosJk. On the 18th of Mmr, iMf, Ifc
Duncombe reoaved rxchsqtr iSys fiein Mb
lyAcosts^nnd goingtn tlie enliemMrisnr
them to Mr. Aeis, Irid Vm hehai &^
•Mpsivitf
oeatheodB
paroeia of billa, ooeof
therevenne and tbeotharnoi
1,300 odd pounds that
office waa indorsed, and the
D'Aoosia came not through the
L. C. /. Did yon hear Mr. !
so dirtinetly F-^. Yes, my Isrd.
iMe ^ ike DefemdmWe C
were divided into paroab ; the Act
JLC.I. Were the faiUadelivei«iliyj«%0
by Mr. Duncombe f
Cook. I carried them, but mysMitftf*
vered them with h» own hand, and tiU U*
the difference betwixt them.
Mr. Attorney, Call Mr. Peters. Mr. Pdm,
as to Mr. CookP
A. I knew nothing of bim or of bis rc1ati«il»
Mr. Duncombe ; 1 Jniew not if I saw biai ika
day or not, but am positive Mr. Duncoaitedil
not deliver me the bUla ; it waa either SteHir
Ilomney.
Q, Are you positive that Couk waa not daic^
when you received the bills ?
A, I cannot be positive that Cook wsiaa
there, but I am positive thai Mr. Dancodb
was noi there when the billa were deliverd.
Q, When was it yuu saw Cook fint ?
A, I saw him a day or two after, but kiiff
him not to be his servant, and some time aficf
I had charge<l myself wiih the money, I fss
Mr. Duncombe come in at the wicket gitrff
Westminster-hall.
Q, Was Mr. Duncombe there when tbekil
were brought? — A. No.
Q, Cook swears he was there, and tMj^
the diiference betwixt the bills expressly ?
A, I do not know that 1 saw him at M
time.
8erj. Darnel, Was there
Ibebills be had from D'Acosta
the excise ? — A. No.
j^lr. Attorney, Did be name D\
time ?
A. No, upon the oath I have
Q. Did yuu look upon the bills T
A, 1 looked upon one pareeli
, signed Frazer.
r any thing isidM
iostabadnst ps«i I
1093] far fake indorsing of Exchequer BiiU. A. D. 1699.
[lOM
Sir B, Shower, Mr. Peters, belliink yoarseir,
did not you at first Rcriiple the takin||r those
bills as nut comini^ through the excise ?
A. No, I (lid not.
Q. But you swore it you shall ha? e it by
and by.
Mr. Attorney, It was Mr. Fern tliat said,
irhen those bills were broug^ht to him, be refused
them, because ihey had not passed throug^h the
excise, aod therefore it is the more likely they
would conceal that objection from the other
Mr. Petert. 1 knew nothing of D'Acosta, till
I Maw bini in the declaration.
Q. Did Mr. Buncombe bring you no parcels
ofbills that day?
A. I saw him not till 1 saw him come
through the wicket gate.
8ir B. Shower. You saw him so near as the
IkUI gate, what did you say to him P
■ A. I said to bim, Mr. Duncombe, I have
charged yonr nsoney.
Another of the Defendant's Counsel. Were
Hkm bills in 3 parcels f^A, Yes.
Q, This hel|i8 to clear the matter, that there
was DO fraud in it ; shew him one of the bills,
m tbat your name ?
A. No, there is no name of mine here.
■ Sir jf. Powis. Did the king lose any mo-
ney bvthis?
A. No, not one farthing.
Q. Had not Mr. Duncombe a demand open
the loan at your office, of 5,000/. payable be-
fcre that day, and there was not money in cash
to answer bim ? — A. It was not paid.
Q» Mr. Stent, did you carry any bills to tlie
tichequtr from Mr. Duncombe ?
: A. No, I never did.
Q. Mr. Itomoey, did you ?
A. No, I never (lid.
Q, Mr. iStent, what was it you carried then ?
if. On the 8th of May my master c^ave me
a note to strike a tally, 1 came lo Mr. IVtera,
and desired him to take three orders on Mr.
I^lnis, and toM Mr. PeteVv, licre is my note,
•ad threw it down. Mr. Peters told me I must
ao to Mr. Fern, it was to be paid in his odke,
ror I have no money, says he, before Mr. Fern,
li take them, and I will take them np again by
and bjT. Accordingly I went to Mr. Fern, and
told mm 1 bad three orders of conrt on Mr.
Plalma, and that Mr. Peters ileairotl bim to take
them again, but Mr. Fern refused to do it, upon
which I went to Mr. Peters and tuld him so,
then he went himself to Mr. Fern, bat be still
nlnscd. Then Mr. Peters said to me, come, 1
will not be obliged to him, then he took the note
and struck a tally, which 1 brou|;ht on the 8th
of Mav to Mr. Brown at the excise office, and
then I went to Teddington to my master's
house, and was there on the 12th of May.
Mr. Fern. Did Mr. Stent bring you any ex-
chequer bills ?
A, He shewed me no exchequer bills.
Sir T. Povif. We say tbat tlic payment by
Mr, Duncombe was a legal payment, and though
Ihat payment by merchaati was not because of
their undertaking to pay it specially in gold
or milled money, yet that will be of use to us
by and by ; but Mr. Duncombe's was as legal as
if there I'lad been an actof parliameullhHisuch
a proportion of lead so and so stomped should
go for money of such a value in all payments :
this at that time was as good lo the kiuj; as
gold and silver if made so by law. If a re-
ceiver in the country had met a man with such
a parcel of atanipe<l lead money, and had said
to him, 1 do not likethiii money, I will ijrive you
this for the king, and the receiver had accord-
ingly taken it and •^iven him other money for
it, this would have been no abuse to the king ;
or sup|iose I have so nianv guineas, the king
takes titem at 2^t. and if 1 say to a receiver,
if you will take them at 2U. 1 will allow you
so much, thus he makes a profit of them, but
does no wrong to the king at all. It is the king's
interest that all the exchequer bills should oa
brought in and sunk, for so they must do accord-
ing to the act, so the act says when they
come in on a proper fund, then that is the kinf^'s
wish, he is not wronged by having them paid in,
if they be paid in on a fund they stop the inte-
rest, if on a right fund they arc sunk and never
go ont to pay interest again. If people who
have these bilb, stay a week before they call
for their money though due when they re-
ceive those bills, it is a great deal lor the kin^
to |»ay so much interest every day, so tbat it is
better for his majesty to have them all paid into
the hands of his nfiicers, aod if they keep tbem
two or three days in tlieir hands there is a
profit to the parly, but no inauner of deceit
to the king. We tlierelbre stand upon it thai
it was a legal |iayroent according to the act
and procfaination. The opinion of the offi-
cers of the king's revenue shews tliat it is
no deceitfid payment. Will they let a man
that hatb the king's money in his hand |iay in
exchequer bills? jes, becawe tbere is no deceit
upon the king for so doincr, the king is no loser
by iU All tko<*e roercbanU that ^d exche-
quer bilU instead «rf apneas and milled money
may have informations agaiiwt tbem, and every
one of tlie comnnssi<uiers of excise may have
infommti4»n8 against tbcni of the like nature, for
the thing is the same. U e took not those hills
whilst lie was in the office, for tliose he to(»k then
weK regukirly indorsed, all those complained
of were' taken on the 12tbday from D'Acosta,
and why might not hetake tbein ? If any man
had owed money to the king, he mif^ht i>^ by
law andssk those that had exchequer bills to lei
him have them to pay to the king for renewing
a lease or any other debt, he brings tbem to the
exchequer and they take from him, ttie king
has hb own to a farthing, and the receiver
charges himself with the money.
Sir B. Shower. We put it upon them to dis-
tinguisb it from a coll^rtor of the excise who
hath milled money of the king's in his hand, and
let them shew one word in any one act of par-
liament that orders exchequer bills to be paid
in upon any branch of the revenue btfore they
be paid into ibo exchequer. It is in any pay-
1095]
11 WILLIAM lU.
inent whiterer, and the (ellcn wn to reoeiveiC.
We submit it to tbe jury if we have not satiified
their information by Mr. Cook, and contradicted
Ptften by two other witneflses, and as two other
eridcuce swear they ware not with him that
day, they ferity Cook and falsify Mr. Peters.
Mr. PeUn, Jt was to the best of my opinion
Rumoev that brought roe the hilb, but oomine
down that same day or soon after, we talked
with Stent about the matter, and he said it was
he and not Rumnev.
Mr. Sunt. I told you that 1 was with you
about three bi-ders of court, and not about ex-
chequer hills.
Mr. Attorney. The information against Mr.
Dnncombe is, 6ec. We have prored that he
was cashier of the excise, tliat he received
SO/KX)/. in milled money, that he was ordered
by the commissioners of the excise to pay
10,000/. &c. that he paid 7,000 odd |iounds of
it in exchequer bills bought by him from
D'Acosta at 6 per cent, discount, and that he
ordered feigned names to be written upon the
bills, and wc have proved that the bills were in-
dorsed with false names as if they had been re-
ceiTed into the rereniie of the excise. Mr.
Peters hath sworn expressly that he took them
to have beui received iiito*lhe revenue of the
•seise. Air. Peters hath swurn expressly that
lie took them to have been received upon that
revenue, he understood so by the names in-
dorsed upon them, for that was at that time the
usual method, und thence heconcluded that the
persons whose names were iudorse<l upon them
liud paid tluiiw They contradict tliis, and al-
ledi^e the (lilltTciice l>vtwi.\t the bills regularly
indorsiMl and those that were not was told to the
teller. If that be made out to the satitituciioD
of the court I know not, that must be left upon
the rriditof that u itness and Mr. Peters. Mr.
Peters denie.< it t>ositively, that eitiier Cook or
Mr. Ouocoiiibe were there that da\ , and swears
he did not see Mr. Duueonibe tillatler, so that
iJi>ok is expresMy coiitradicte<l in all bis evi-
dence ; Mr. IViers expressly denies any thing
said to liiin by that man at allf il'Mr. IVters ma\
be civdited i'n this matter, an«l thoujfh he does
not say pv»sitively thai Mr. Onncond)e or his
man mmu hiin expressly that those bills were
paid into the excise, yet except they had de-
clared the eontiary, the oiiicer iiiUht take
their, so. irthut Le so, then the information is
j)r.i%idin every particular. There is no other
tjurt of our c.idenre in question bul thai of his
laving p:;id tluin into tiieixche(pier as havini;
come ti:n.i:i;li ilietxcisc, Mr. Dnneondie knew
it plainly iii,\l niev had not heen <tt p-t.d in, iiv
ki:ew ihcy w*.re l':dsely indoiard, and that liy
hi.^o;v:i linuclions as D'Aosla s\\«ars, that h\
liisdiiv;Lii;».i se\ci;tl laUr and li ii;nMl nanus
>\ero v.To.c upon tliern. It" tins I.e pro\ed, this
ii» an jfii'uce, liiey c.unio; Ki.\ it is no crime.
JSir li. ^ji'uiit tr. Ti.rit dtjiiMnIs upon some
ilanst oi tlic;u i read t'> yoni l(>rdsliip, by which
tho- hi-'.s mijfhi ha\e l»een paid hy Mr. iJun-
toiiihe i!i?)nj;li ihey had never l;een received in
any bi'auch of the revenue, the Sud cUuse of
TfialqfaarteiDukeambefetq. [lOM
this Snd act, and tbe flrrt act lb. 131, H Sf-
paais, 6cc.
Mr. Atiamty. That it a mistake, thai 6mm
is in the first act that makes bUh current sni
to be received in all payments by oolkrAm
and receivers only, in all ac^h aids as was
£ "anted that session, only ezce^ the 3i. aid,
c. They are bound incMfd if any body com
and desire to have milled money in lien of bib
to exchange them, but Mr. Duncombe'smoaqr
was not taken in upon any aid of that iiMia,
80 that he was not bound if anj body bsd eoiM
to him to have exchanged their ezcncqner biUi
for money ; that clause does not extend la Hi
case. It is restrained expreasly to the dssH
in that act of |mrliament for the ease of Iki
people in the country, the act aays tbey shodd
exchange bills brongbt to tlicm upon sock tfi
sudi aids, but does not extend to other ai^
granted that session of parliament.
Sir B. Shover. Tbe next clause b upon ik
subsequent act, fo. 385, theratbre Mr. Da-
combe might have paid them in LXthcfwr
bills.
Mr. Attorney. There b no ground for ttat
Then the cUuse was recited.
Thus far the clause makes tbeoi nvMl
only to collectors, receivers, or cooaii-
sinners of any part of the revenue; ikj
are made current at the receipt of excbc^,
not only to the receivers bat from thtiv-
ceivers to tbe exchequer, it waa higblf M^
sonable they should be able to pay them ■ii<
charge. The lost words they ground Bf«
are *^ from any other person and on wliilM^^
<*ouDt soever," hence tliey would infer, tkil
they may be paid by collectors or recenei
that receive money in specie, but this canMl
be. This pnivision is thai they shall pay ihca
into the exchequer w hen they have received
them ; they shall be paid by those reeciiei
into the exchequer ; the latter clause ilocb Ml
extend to collectors or receivers but tu uj
other subject, as supjtose they are a fine tVsi
lease to the king, they may pay it id fs*
clie(|uer bills, but receivers may nf>t, IW it s
other persons ; reoeivt* rs and collemort are bki-
lioned immediately before. This cUiu>e «ili
not iin|K)H-er receivers and c«d lectors to p»y
evcheipier bills f«»r money received on the kinc*
duty, there is not a word in tbe act empoiNr-
injr* i-eceivers or collectors to pay exrue^««
hills into the exchequer when they did ooi if
ceivo them on the revenue.
Thontrh the otfieers of the exchequer wfrt
iu>t bound to r(><^ei\e exchequer bills thai vM
ni>t indemnily him, if this payment was us*
lauf'nl and made to procure advantage to bia*
si It', as it is apparent it was, for he got S90iM
ptKinds by it, as is sw«»rn by D'Arosta, »lW
so much Iff the kini^N mone\ he (^ot by v
nn thtid : this is payin*^ it deceitfully ; ^
sii(»uld have acquainted them with thetmlhrf
the matter, tliat they were not paid into iki
excise, and then if "they had taken tbfSi it
would ha^ejns'.itied him.
Fur the proclaiuatioo, it b no largw ibH ^
k-^. <1<3«9 Dot explain or con^tnit; it, but noiist
^%:»3 ^?-crt CO the same eoostrucuiun. As to the
^v-^SA^ practice of mere ban Is und others, if
ft^^cl been allowed by the treasury, it will
K^&^vefore foHow that he sLioultl do it. If
^ 'v^^^feiAld imiiili^e »ho»c |>eo|jle tb^is that hud
^ "3^ tx> pay Ibr the l>€nt;lil of the couiiivy, it
of pet^ons, that when brlh were returned to be
fiatd in milled tnouey and guld, ihf y paid ihetn
notwithsitanditig in exchequer biiJR; it wa» per-
mitted because persons retused to do otherwise.
It was the kiu^s iuterest rather Ut ui«ke an
abatement of 5 pr ceot. than U» sue bo many
persouii^ Could not Ihe king have given
i»e indulged to them on thiu account, but i iiiiich money to D'Acoita and got 30a/. by it
'ill not excuse him. VVe have provud the
lotion as tt is laid, and us for the contra-
**«^»:». between Mr. Peters and jVIr» Dim-
**^^>^*© servant, it most be kt\to the jury. It
^■^ uji warrantable payment and a iteceit to
^lig". There was a contract made for ex-
^ingt exchequer bills upon any of the
but that is no help lo bim that makes
c**^:judicial to the kiu^, for ihe king^ must
^Hem acoosideralion tor cvchau^fingf ibem.
^^^g^vates tbii ot^'ence that it wu» an ad-
"*J^^e to himself and a prejudiqe tolbe kin^*.
^T** *Soiiciior, The defendants have said
-b that 13 not proper, ami w hteb, if there be a
CI aiiraiost him, we shall hear of ag^aio at
kcf tune. The puint now in dispute is,
ner Mr. Dun combe be guilty of the in-
Mion of cAusin^ 83 bills to be indorsed
the name of D'Aeoata, and we hove prov-
* i cau^io£r i\mse bills to he indorsed. We
Hot say with what ilesi^n this was done,
we have proved that I hey were pid into
, -- * excht quer. They liave a witnejis that aays,
* ?***when they were jiaid in, the teller was
»^^ that some of them had not passed Ihe re-
^^De of the excise. After this was found otit
^y the officer Ihey would have hail Mr. Duu-
^CM&be take some of ibetn a^aia, but he would
%ot Though by the act of prliament a per-
^tta may pay thosi^ bills into theexchequer upon
biS pri irate accouot as a tenant or debtor to ihe
Iciog', yet when he pays them into the ex-
cbtquer he ou(^ht to indorse Ins name on tbem,
J I' the peraon ji^y I hem to the king as having
f received them ou tlie revenue, \\e is not to iu-
dorve h»s name onty to the delivery of the bill,
liiit it ou^bt to l»eindorsetl with the name of
Ibe payet*' — ^Tbat is the set. It is plain the
kills were not indorsed with the name of iDun-
oocnbe^ h^ did not pay them any otherwise
tbaii as casliier to the excise. If be paid ibem
; m$ a private person, they ouirht to liave been
with his own name, and not with
^ of other persons. Nereis the evidence
oftbe fact, as well as the evidence of .^Ir. Peters,
lie did ibink they had been passed that re-
venue, liad Mr. Duneoiubii iuieoded to pay
tfnem on his own account he should have set
hi* own nauie ujiou them ; but doing the
contrary, it 19 plain he paid tliein in as
cashier. If Mr. Duncomhe had been met
iPtFiih here in the hall, and had ext^hfNiuer bills
tendered him to be exchanged for nmney, he
was not obliged to receive tliem^^ he was not
an officer hut a de|mty of the commi^e^iioners of
OCifle, and discharged taking any anch bills in
iliiB imne of the comtuiaaiiHiers, nor wore the
eommiflsionera bound to exchange such hUls
Iwooght to them. As lo the frequent practice
OS well as Mr. Duncomhe, why might not the
king have done it liimself ? It is not to our
purpose to say how much the king is damnifi-
ed ; if he be damaged, it is sudicient ; th«
question is, if it be not a crime to design lk&
damnifying of the ktng. They have adreii«
tured upon a point of law, we shall argue that
afterwards,
Mr. Serj. Wright, It is admitted that Mr.
Duficombe kept the cash of the excise ; that
he had his authority fi*om the commissioners of
the excise, and that on the 5th of May he re*
ceifed so many exchequer bills, t^he next
thing is, he having this money in his hand wat
ordered to pay it, upon which he pays in ex«
chequer bills to the value of 7,0D0 odd
pounds. It is plain that D\4costa was not tbc
contriver of the false iudorsemenlST ami it is not
denied, but Mr. Duocombe ordered D'Acostft
to indorse them : When D'Acosta questioDed It
because of his own credit, Mr* Buncombe
found him an expedient. We ditier in th»s»
that he being thus ordered to pay this money
into the exchequer, he pays those bills, parcel
of the money, as if he had received thein in Iho
excise. It U plain what we meaa by indorte-
ment.
Tliey would excuse him thus ; first, that he i#
not guilty, and secondly, if be did pay the said
bills, that it is no offence ; that he i>: guilty of
the payment, is fiositively proved by Mr. Peien,
GO far as he is a good witness ; and so Fern says
there w&s an efisay mftde upon bun on the 8th
of May, to have bim receive them, hut he hav-
ing refused them, they went to aooiher. Mr.
Peters says they were brought to him as so much
money paid into the excise. If Mr. Dancornhe
had acquainted him or had not acquainted him
so, it IS not material. What pretence had he
to make a payment into the exchequer at that
time, but in lieu of money that he had received
in the excise? Jt is plain he paid tliem in as
truly indorsed, when indeed they were Jdady
indorsed; this they do not contradict. Tbib
an to the legality of the payment they inatft
upon ; they insmt, that hy the letter of the act
of parliament, ihey were made current, admit-
ting them to be as general as they would have
them, if they extend their own case. It it
hoped the king^s case will be as good as that of
a private man ; if a private man, Mr. Dun-
combe or any other, send his servant from the
excise lo the exchequer with 10, 000/. ia milled
money, and by the way he nu^els a liargaio of
cxohequcr hills, and £0 gets C>i per cent, to
himself, and his master loses it, would any
private man be so served ; if any man send hui
servant to a goldsmith, to receive l,OlX)/. m
new money or guiuea$> and he buysexcheqiior
L
1009] iiwuuAiftnL awtf^cayfte jiut^ j^ <y
Unto
■od brimr lum MMt ftr Im awcy,
mcbtbitf TlMraiiao
^io this cue, betwixt Uie kmg tad «
pivatv DHni, ooly the act malEei Amb emrciit
m ipyacot 10 the king and not to other peeple:
H m 9f breoeh ol trust ftr any men bami^
of mother iii«i*e io Uo baadiy to hay
bilh Olid to pay them iaalBail of
little mooey was coRoM till daooriod
byaotofpafliaiBeBt, mppoae any man*! aer-
«attl had booflrht Kttle noiiey witb hit maHer^
, it would have been
.ftriMtaador
HMKXML in apecie which carried an intrinaie
ftthw in it, he boofi[fat bilh that bad not the ib-
trinie vahie in them and paid them to the Idttf.
The aol intended that all people iadebtod to the
Umt Ibr rant, teanf, eooMiB, dee. migbt pay
IhoUnff m that coin, but doca Mi anthonsoaer-
wrti to boy np other apeeio, and to pay the
Unff m tiiat; Un wae Dancoanbo'a eaae, he
kiptthe kiBJfa /Bai^ and difoited the meiiey
■0 vaoMfod ni apedOf brotwfat op eiaheyier
Mi at a diicoiint, and paidtheni mto the es-
alwferlnftaod of the king, and therdbre wo
hapoMr. DoAcombo will bo Iband goil^, if
Iho ftet b9 with at. That it la ao there Si no
f WBl luaMu todoobt ; there can be no eompari*
Mi'betwixt Mr. Petera and Cook; Ibr thoogli
Owk aaya, Mr. Dnncombe deli?ered them
arilfe hia own hand, and told him the diteeooo
of the billa, Mr. PMera poatirel V deniea it, and
makea a far more eonmleraMe tonro Aan
Cook ; the thiogr speaks so plainly of itself, tbe
truth must be on Mr. Peters's side ; It is plain
be paid them in lieu of money received in the
excuie, which justifies the information to be li-
terally true ; it is plain he paid them in so, and
we submit it to your lordship and the jury;
Mr. Serj. Darnel. A great deal of what the
defendants have said has been improperly moyed
at this time ; they ou^ht to have reserved that
to move in arrest of judgement: we hope we
sball have a verdict against them, and then they
will have a time for that purpose.
The Defendant's Counsel, We hope not.
Mr. Darnel. Your plea sets out and con-
cludes, that the name is not falsely indorsed,
though we prove it is, we do not charge you
with the false indorsing of the day and the
month, but with indorsing the name and no
more. 1 would know what the meaning of a
false indorsing of a man's name and by so many
fictitious names is. It appears by all our wit-
nesses that the}' took it to be indorsed as if it
had been received from the excise.
Cook is falsified by one of the other two evi-
dences in every particular, and one of them in
another.
He swears Mr. Duncombe gfave Mr. Peters
tbe bills with his own hand ^ Mr. Peters utterly
denies it, ^c; but that we must leave the
jury to judge, whether Mr. Cook falsifies Mr.
Peters, or if Mr. Peters falsifies Mr. Cook.
The. defendant's counsel justifies his receiving
10,000/. io money and paying it in eichequer
thminthoaoti
■at one word in any i
brancfat to theolBeeon a I
bat this will not extend to a I
hiir i*«> aiMl iMUiV vao of tho hii«< 4M*
to hay thorn. The tot-tBiavoowaaaMOMV
by Mr. Attar»ey, it mrtenda to tho lauiiiMi #
theaMhil09r. '^
They offnr that it wna beneAcial to theUtf
It waa for the kug^ ndvants^loalspteWW ^
restof theemhemwrbiili. bottbnoi
biOaeannotbo tunk tilltlMy bopudin^ftf
the fond from which tfaay I d -^
Mr: Gonyen. '
thinga opoirMr.
noBrBtwDal
net oontrovortod, that ho Ail
itwaaagainto
tholong: ho gains 51. per cent ;- bo
^51. per cant whioh wni n pflndjen fc'
kmg; Ibr iftUambBijhlrioomo into «•<
chequer fa ■paeio, thoaothat had daw "^
the exehefnerimglit hare pnidapae
to anawer their daoMUMb. Tbay
of intmat k bomilcid to Iho U^i
biUainateadof I
paid faiotfio«i
per cttit theroiaalamtotlmkiaf ofM
oeiit. ThtewaadolMalthat tivb fcyiWl
was an officer, thoogii not at the aetiw^
payment, yet be received the money wbci hi
was an officer, and next he paid those enbc^
bills as if they bad been reserved upas Ai
excise, which we most leave to tbe judgnoittf
your lordship and the jury upon oorevidaMU
He brought them in three sep^rale pareeh. k
is not said that some of them were actosHy fiB
into the excise as they say, but theoffieeradi'
ally receives and takes them as oaid frsm Ai
excise, and takes them particolarlyinbiibMk;
so that it is plain, be that took them st iM
time did think them paid in for excise; thi
as to the' indorsements upon the bill tbttdwy
were falsely indorsed, and done so by bitdiMe'
tions, we nave fully -proved ; there was *
settlement at that time what rate they were tiki
paid at, they put first tbe name upon tbti^
and afterwards what they tbouffbt proper, »
D'Acosta gives evidence ; So that it is phia •
was a false indorsement and dono by Mr. Dm*
combe's direction. ^
As to their plea from the act, lb. 384, it oi
not admit of any such construction as they f^
upon it, whatever is said of collectors asa W
ceivers it will not extend to any man that MT
received tbe king's money to allow bin ta |^'
exchequer bills for it. '-'^
They say it hath been done by several stht^
but if 80, it is a faolt io them aod no sacemt
him. They are guilty perhaps, and saiif
they are all ofienders upon one act of |M
ment.
Mr. Cooper, My bird, it ia
BIJ
Jhrjdu indoning of Exchequer Bills. A. D. 1699.
[IIOS
etitioD, bat I shall abuse your lordship's in-
genoeas little as I can. iind it been a parallel
e to that oft' coin it would have given us light
lee into the nature of this offence. But tVom
I act read, those bills are not to be sold to sup-
r the room of money in all eases, but at first
ii narrow limitaiions, and afterwards with
uutions again ; the first issued were issued
DD tinking the fund, the capitation act, the
id tax, Ss. aid, and to be sunk. Tlie first
Iginal of those bills were to be received in no
icr aid or tax but that on which they were
M issued.
Then this provision was further made, that
cavers and collectors of those funds, if any
; tbem had money in their hands rising from
ne aids and revenues, it is limited to them in
le 1,500,000/. act, &c.
Nona of these so authorized to make such
lebange; no other but those, that those provi-
Msare made u|K)n can make such exchange
y the recited clause of the act. What a ridi-
■kos care it would have been in the parlia-
■m to keep the execution of the act in the
Ittbof the lords of the treasury, if it was in
k power of receivers, collectors, &c. to substi-
me another sjiecics in the room of money. To
ifcroe Mr. Attorney's exposition, the SS9th
*|e of the 2d act in every paragraph makes a
iliiiction, considering, &c.
The interest stops when paid unto anv re-
Bnrcr, collector of .the aid tax, &c. : shall that
fearer and collector keep that in his pockets.
Id 1,000/. at tlie same time, and then clap
«K bills instead of money into the exchequer?
kii moat be tolerable, if that which the gen-
fiOieo of the other side say be law, for the
iledora in that case may keep the king's
Ooey, make use of it, and when the day
VMS, pay bills into the exchequer instead of
e kii^s money.
Pkvug into the hands of the public receivers
coileotors is the paying of it to the king,
kcr the king's officer hath it in his hands,
^ will say, it is profit indeed to our client but
k dindrantage to the public, but that will not
tagctber excuse it, the faster these bills came
lo the exchequer the faster they issued out in
■ebaige of tallies, to that it was as much to
• edvftntage of Mr. Duncombe as it was to
« detriment of the public.
The question of fact between us is, if Mr.Dun-
inbe boii|(ht these bills on a discount in order
' make this payment, and if he ordered a false
doraement witli feigned names, and if all their
iCcui cuggcst no other cause fi)r these names,
)d if it appear that he sent his servants with
low UIU to discharge a charge u|ion him on
le aoeount of the excise, it must ap|>ear to lie a
led upon the puUic, sup|»o8e on the |M)int of
wdit betwixt HI r. Peters and Mr. Cook, though
•boukl be in the opinion of the jury against
■» it will be BO colour for them to acquit H^lr.
Seppose Mr. Duncombe had brought them
Tfm toe exchequer indorsed as paid into the ex-
■H^ M il IP plain ha didp tupposa he found
himself disappointed at one place and then goea
to another, wdl that excuse him ? they speak
as if the fraud were in Mr. Peters, as it it were
so that Mr. Peters's fraud could sanctify this
matter; though he had trusted Peters With the
thing, as it looks like something of this : that
the leaving out of the date and putting nothing
but the name was a temptation to any clerk of
the exchequer.
X. C. J. That is not in your information.
Mr. Cooper, No, nay lord, it is not, but sup-
posing the privity of Mr. Peters, it viould not
justify Mr. Duncombe ; they insist upon his not
being an ofiicer at the time of the nay men t,
but as he was keeper of that cash and bound by
articles for the performance of his trust till he
made his last payment.
Mr. Montague, I shall only crave a word aa
to Peters's evidence ; suppose what Mr. Cooper
has said to be true, and supposing that what the
other side says gaiu credit with the jury that
Mr. Peters be guilty, and Mr. Duncombe not
guilty in that point.' If Mr. Peters took them
from him as from Mr. Duncombe and not aa
cashier of the excise, and by him received upon
the branch of the revenue. If D'Acosta had
paid it to him as to BIr. Duncombe and not aa
cashier, and if Mr. Duncombe had paid it in aa
a private man he should have pdt his own name
and not D'Acosta's to them. We charge him
with having made the payments as from the
excise, leave out Peters's testimony, wc need it
not for that, for it will plainly api>ear there waa
a discharge given to Mr. Duncombe, as if 1^
had paid it as coming through the excise.
L. C. J. It was never the iuicnt of the
act of parliament that the king's cashier
should keep the king's money to buy bills, and
then pay tliem in as if he had receivcti tbem on
the revenue ; the law does not allow receivers
to convert the king's money to their own use
and to pay it in paper, but that cannot be well
and therefore yoii gentlemen who are counsel
for the defendant, and have urged this as a
lawful payment, we are all of opinion that the
law is i^inst you. Mr. Duncoml>e being the
king's cashier, and having specie in his hand,
and he to pay 7,800 odd pound in exchequer
bills, whereof he hath converted the money to
his own use ; this is a crime, but whether he
be guilty of iter not, we must leave it to the
jury.
The information is, that being ]K>s5)essed of
10,000/. of the king's money, that he paid ex-
chequer bills into the exchequer f(»r it, that is
tlie question, if Mr. DuncomlK. be guilty of
this crime as laid in the inforinatinn.
8erj. Darnel. With submission, my lord,
that is not the question.
L, C. J. It is ; I have read the brief.
Judge liookthi/. There is i|0 evidence of any
bills when the uiuiter was so indorsed on these
bills.
L. C. J. FIc paid them in as if received by
him into the excise, that is the point.
Mr. Muntafpic. He paid them, in as paroel
of that sum.
1103]
11 WILLIAM III.
h* C* X Tt b 6Eiifi he paid ibem oc at &c«
Mr. 3l(Hi^*i|r«'tf- §u(>|»t>fte that be Idt out.
J uclge TVrf on t Th e iodorspment goes tin] j^
to tlve natue.
Judlffi Riwlc*l»sf. As to tile iDatier<»f bir, if it
ipjiear that there is an atff nee with in thli iti*
formation, b^ tbat lie is oat only com plui tied of
MM n nubject [iijuriaTi^ t» liis anvereiifii but as a
wsryaat itijurintis to his master* He wjii.^ tO'
IrtiHietl >VLih the kind's moaeytjuid wb^o he re-
ceived it, defVawdeit bi<t master and paid it iu,
that thiit h less than the iniiinsic talue, for
Wbat be paid to the king- (br 100/. was btU 93/.
/«, C. X That is true, but is that id the in-
Ibrmation f
Attotftcr Judge, That g^eneral clause cannot
extend to Mr, Duncoaibe, for if it could be so,
he tuigbl have as well paid the tnotiey J 4
tnotilbs af\er aa wheu he did^ he mtght have
kept Ibe monej and alLc^dged the act^ but that
he dill not.
L . C J* Oentlemen of t he j ury » th e chargfe
agaimt Mr, Dunoombe h fbr traud aiHl deceit
against the kins;. It sapposes thai he vi^-as
ca^liier of the excbef and as such received a
Ifreat sum, beiti^j possFSsi?d to the value of
50,000/. in miUed mnfiey. He firalt i^jth
D^leosta ^i*rexche^]ilerbiUs^ for r,000 and odd
pounds, those be hou^bi from Mr, [I'Aeosta
%t hL per cent, fliteount: thi& a;>pears upon
evidence, bit. m iu tbe inforroatiou, and
he ia cbnr^ed vtiih |>ayin^ in Ibo^e bjlla into
the exchetjuer, as heiog- trulj indorsed, and as
if he had received tbeno ufion that branch of
the revenue* The question is, if he be guilty
in such a maimer as he is charged. The pre-
limioartes to it arc proved » as that he was
cashier to the eitciie on the 4th and 5th of
May, 1697, and that he wasi turned out on the
Tth, and thai be had this money in hia h^nd
la pliiinly proved.
That be did euntraci iviih D'Acosinis proved
by D^AcDsta bim^lf It seems that D'Aooata
bad contiacteil iviiti the commissionera of the
treasury tor paying money beyond sea for the
ktDLS and vrai to have ibe vaUte of hii bills in
exebec|uer bill«f» This contract was made
tome time lielbre, nnd he had alloTranee ac-
Cflnlinglv* because it vrat to ilepend upon the
credit of HO aet of parliament. He says, he
did ^ve fur those hiJU bdk uf e3fchan;p^, and
baTini|^ occasion for money, be came to Mr.
Uuncombe to know if be won Id buy any, aOer-
wards he dealt with him, and let Mr. Dun-
eomb<* have those btUs on the 12th of May,
Mr, Duncambt? n^re^m^ with him for money
at ibe di>^connt of v^L per cent, and odd
money. Th«n Mr. Dnticombe desireil him to
let hia hand upon the back of the hill, which he
did, but heffiimmg^ to reject upon bimst^lfthat
be should ftirfeit his credit with the lords of
the treii,<3ury to discount so many hills in so little
time, he wds uuwilliuj; to set bis hand any
furUier, upnn whkh Mr. i>um^am)>e bid him
let any name, he did s^o, and Mr. Dun com be
had the hilla, and he hi.s money.
ThoM bdb were afler wards brought ta Mr, |
Fetera, a teller in the office, and *efe r
by bim tor f.OOO and odd poautlt, hn\
they came tiiitber, a servanl of A(r*
oombeU comes to him, &ayi Fenn »i
couniea bim on Mr. Drmcumbe''i icicoun
paTingJin those eiicht^u^r bit is, and asle
if fie wtiuld receive th^m, he say^ no, h
not think they had circulated tb rough
ciae in an short a time, tod tJicrel'vre hi
nqt receive them, Mr. Duncnmhe^i sem
they had not bcefi paid into the excii
wail ^imt days before they were paid ii
Peters^ and supi>osed to fiare t>een ati
by way of pr«|>aration for wh^t was doe
On the 12tb of >Iay, the exchange in
betwixt Mr. Doncombeand Mr. DUoiM
Peters says, that Mr. Diuicofube'saervai
inio hiaotiiee vvith Ihoie biHa,and gave
the pBrtici liars ibey were recetf<^ <bi
Peters gave them to his aei^ant lu kw
and be Innked all of ihrra over^ he laj
were not indnr«ed v*ith the tlay of the
but only with a name, so «ay« D^Am
look It for granted ibey bsfl been ptt
the excise, and thcreopon cbarsjei himii
the receipt of to much money, struck a
and discharged Mr. Duncombei after ihu
dis/!ovcred, that liiosc bitla were not pai
the CJEcise ai they seemed to be» truly i
it wilt be damage to me, I shall be a ii
and therefore desires I^lr. Duncomb« t
them again. No, say a Mr. Duncombe
not obbged so to do. J have got a laity
discharge, and will he concerned ao fi
Peters say» it is a damage to bim off.
hatb totd you they were in three parcels
of the excbcijuer bilta be found ri'gulii
dorsef] as paid actually into the eact»e, ao
were put up into a ehe^t with a cotc
tbeni, indursed e^rchequer bills upon the*
They JuLUid an omission of the day wbc
were ^aid in, and indorsed several of ihei
sup pi led that omisHJoii, This \% the sut
of the evidence to induce you to twhef
Donrambe guilty. First, 6&y they, ht^re
fraud in Mr. Duncombe la convert ttie
money to his own u«e and in pay exd
bili^ in lieu of money. Tben tb«re «%s
tempt made belore on the clerk of tbe
where Mr. DuncomWs servant coiuw
if he would be put upon, this waa hdk
agreement with JJ'Acosta^butin pro«jiQct
are to s u p pose* U u t of il>e tru ili whenf
must judge, and then he comes v> Felet
supposed them io be rem veil in the excti
accordingly Mr. OuiienmlM was diaehsfi
so much money ai» paid nut «if the exdie
The defendants say IVIr, Dunoumbe hi
done an ill thing in poitit of law, takittf i
truei that Mr. Duucombe paid thoae biHl
much money j^aid into the ej^dse they i
might have paid it in bilU received OQ aaj
account. If so^ he that hatb tbe kiiig%l
iufiteaif of tbe individual money [lay enl
bills. This is atfeck^d to he \%w^ Iput I
court is of another opinion. W#lllUi
b«ea more reftsouable tbr them tolii
tem toliM||
•J
TruU of Spencer C<mper and others.
A. D. 1699.
[iioa
he kw would MTer allow the king't re-
r to go awa^ with the kiog's money and
irt it to their own use, but when those
itors have received these bilb and pay them
mey, then they took them for money and
but reasonable they should be aNowed to
hem to the king as money, but the con-
was never the meaning ot any act of par-
nt ; therefore we are to expunge all that
rf the defence out of the case, and must say
such a payment cannot be just in law.
e offence laid in the information is, that
lid in so many exchequer bills as if tbey
een paid into the excise. They say Mr.
■ft is mistaken, all those bills brought by
>uncombe's man were not on that account,
swears he brought the billn, and ihat Mr.
x»mbe was by when he brought iu three
Js, and he gare Mr. Petera a jmrticular
mt what those bills were, he says that for
) and odd pounds they were indorsed as
ioto the excise, and he gave an account
lers that those bills were actually received
be excise, and that there was no question
1 the other amounting 7,800/. paid as part
1 10,000/. Cook is positive as to this, he
by Mr. Duncombe at the time, if so there
freat alteration in the case, though it was
4t in Mr. Duncombe, to convert so much
Vf to his own use, yet it is not the fault
B the infonnatioo.
aiher, if the evidence Cook swears true,
lib being in several (larcels, if Mr. Dun-
combe had a mind to pay them into the ex«
chequer as tliey had been paid into the excise,
why in different parcels ? here is a plain dis-
tinction in this circumstance they insist upon
to falsify the evidence of Peters.
Here again there are two other of Mr. Dun-
combe's men called, Mr. Peters says it mmt
be one of tliem that brought him the bills, but
they both swear that they never paid any ex-
chequer bills, they don't remember they were
at Peters's office. Peters says, he did see Mr,
Duncombe at that time, bui that lie saw him
afterwards in the hall but not at that time, this
is a plain contradiction to the evidence*. We
must leave it to you gentlemen of the jury,
upon the whole matter, whether you be satis-
tied that Mr. Duncombe is guilty of the crime
or not as laid in the inforniatkin. If he paid
those hills into the exchequer, as if they had
been fu'st paid into the revenue of the excise tor
sojmuch money. If you lie satisfied he did, you
must brincr him in guilty, but if you be satisfied
that he distinguished between the bills and tokl
Mr. Peters what bills th^y were, you are to
bring him in not guilty.
The Jury did- immeiliately, without going*
from the bar, bring him in Npt Guilty.*
* ** This is a copy of the frial of Cliarles
Duncombe, esq. taken June 17, 1699, when he
was tried before tlie lord chief JMstice Holt at
the King's-bench bar, Westrainstei^. ' Testified
by me George Ridpath."
I. The Trial of Spencer Cowpeu,* esq. Ellis Stephens, Wil-
liam RoGEus, and John Mauson, at Hertford Assizes, for
the Murder of Mrs. Sarah Stout: 11 William III. A. P*
1699.
July 16, 1699.
edamatioD was made for all persons con-
rfto attend.
. ef Ar. You good men that are em-
ailed tDenqntr^, 6ic, answer to jrour qames,
Mve year fines. Then Ellis Stephens,
am Rogers, aod John Marson, bein^upon
mdanation was made for them to attend,
I Dbey aeooidiDKly did ; and Mr. Cowper
noght into court bv the under sheriff.
^J^r, Speooer CSowper, hold up tliy
(Wbieh lie did.) John Marson, bpld up
nd. (Wbieh he did,) Ellis Stephens,
ip thy hand. (Whioli he did.) William
ra, .hold up thy hand. (Which he did.)
^Atr, * YoQ stand mdicted by the
«t of Spenoer Cowper, late of the parish
3l John's in the town of Qertibnl, in
CMiily of Hertford, esq. John Marson,
Hr, Cowper and Miss Stout are theMoMo
•an of Bin. Bfanlcy 'a New Atalaotis.
L. XIII.
bite of the parish aforesaid, in the county
aforesaid, gent. Ellis Stephens, late of tlie
parish aforesaid, in the county aforesaid*
g^nt. and William Rogers, late of the parish
aforesaid, in the county aforesaid, gent, for
that you not having the fear of God before
vour eyes, but being moved and seduced •
by the instigation of the devil, on the iSth
day of March, in the 1 1tli year of the reign
of nis present majesty, by force and arms, &c,
at the parish aforesaid, in the county afore*
said, in and upon one Sarah Stout, spinster, in
the peace of God and our sovereign lord the
king, then and there being, violently, felonif
Qusly, voluntarily, and of your malice afore-
thoufriit, did make an assault ; and that you
the aforesaid Spencer Cowper. John Marson,
^llis Stephens, and William Rogers, a ccr«
tain rope of no value, about the nerk of the
said SJrah then and there feloniously, volun-
tarily, and of your malice aforethought, dkt
put, place, fix and bind ; and the Mok and
throat of the said Sarah, then and thare witli
4B
iWQ UWnXUMIIL
finfiosafbre-tboagiit. Hi
• gllpe I .and ditl T0« tiM iiM SMMte 0«PMr,
«Mi Jfawa, BUM StolNM, 1114 WWUm
•^MiMoff m4 fripuur «f the MMk Md ftiMl
iiFAe«& amkiviSi the UiOi^f jFW llw
Mid BpwMMr Ctowpir, J«ha lliiWB» SSim
and WiiSMi BMki, «lM» M
ywinSin aAitt-tlMiasliC, dM dioiik wid
Iflli^^ife 2 • bv MMm ^whkdi ohMkinff SBd
" iTlMrtWMidStiah'" '
fc^y««
Md flpniMrCoimr, J. MMm,
Imm» ADd W. Ikgmv Willi tiwMM
Aaacflkaf the add OMili ■»»■>■■
odHrdM
MldttffMt
iftfMI
y*"fr
aforatida in the county aformid, in manner
and ^Mn ybresaid, felooioiisly, Tohintaril^,
and of your malice aibre thought, did kill
and murder; and the said Sarah Stout^ as
aforesaid, by you the said Spencer Cowper,
John Marsoa, Ellis Stephens, and William
Hogers, feloniously, voluntarily, and out of
your Budka afore-thought, choaked and
strangled ; into a certain river there, being
called the Priory River, then secretly and
maliciously did put and cast, to conceal and
hide the said Sarah Stout, so murdered,
'affaintt the peace of our soverdgn lord the
JuJig, his croirn and dignity, &c.'
Bow sayest then, Spencer Cowper, art thou
gnUtv of the felony and ronrder whereof thou
ilaiidest indicted, or not guilty ?
Mr. Cowper. Not Guilty,
Ct. cfArr. Culprit, how wilt thou be tried?
Mr. Cowptr. By God and my country.
Cl.^Arr. God send you a good deliverance.
[Then the other three pleaded Not GuUty,
•Dd put themselves open their comtiy m
aibresaid.]
Then Pn^mation was made fiv iofbrma-
C/. qfArri^wx the prisoner at the bar,
Iheae men tbil yon sliall hear called, and per-
•ooally appear, are to pass between oar sore-
i«i|[n-|ora the king and you, upon trial of yom*
■erani lives and deaiha ; therelhreif you w3l
MDaOraMjof themy yoortinieto
ftralL
thatr-x^Hiojierf. Yespjcs.
fThm dte . ^_
«rtlMlEk^a^or«ha
afdUjiii^affbt
. Cbwper, tf your totiMip pieaw, cbt
II now gome Ihneugh , 1 desir« t^cy laif
ime legal catsse foril»eir eballengn*
Mir. Jotiej. I ctme^if e we that are
ftrthl kkig are not bound to i^weny cm
ar Iha (raus« b sudden t, if we My Ibif «vv'
~ Ibr the kin^, and ibtt is adowel ft III
abuse of challenge \ *'^r wiiat other
aaa-we shew iu \\m cioe ? Xqu siv niti
sbawyoiir cause^ i,'ouclia.Ueiig«pereaiptoiilfF
airiaiiis case the*kitig does.
' Wki* Cimiter. j^ly iofd, I Maud at tbc IM
amnf dif advantage, to eneoimter «^efld^
J that hath do cotJCi?niai6Dl i hut liswvi^ri
I do take it for taw, that there mujt be i riM
■bimtdt and that catiM mtuBt be a legal «h,
and what that ti^nae Is tliey mnmt cKliiBlr
make out. 1 do Itnnk it ought to appeatiii
there h some relatioD^or some notorioQi ift^
tion or friendiluit^ or someibiiig of IktMli
or otherw ise it is not a legal oanse of itekipl
and if tbe^^ seem to be any difiicallf ii ■ '
particular, 1 hope your lonkhip *ilU
counsel tA argue it wtlh Ihtr king's
Baron HalstH. Mr. Cowper, you
under such dbadrantage as men as
that stand where you now do. Von bare
educated in the stuify of the kw, and iiitf^
staad it tcry welL I have aeretal tisMMi
how you have matiag^ vourdiesJiaAMi
their advantage. At Tor this natter of M-
lenge, Mr^ Jonefl, I ibink, yaa sbouM abp<
your catise of challenge,* tbou^rh ibe h*
allows tlie prisooer liberty to Gholkngi iwefi^J
peremptorily.
Mr. Jtmu. I do not know, in all wfp^
tica of ihts oaUire, th|t it was e«er pat iftf
the king to ahew cause ; and 1 beKe^MMiv
the king^a counsel will say they haTewitaH
it done.
Mr. Coviper. In my lord GhMf
Hales's Pleas of the Crown, p. fS^
axpreash' ^; ^^^ in the statote of 3i
1. It is saifl; the king shtill not cbaliengc^
oat cause, and that most he tefiK
U.ofArr. Call Daniel Cwhe.
Baron HatselL Mr. Jonea^ if yaa-afl
• 8ee the Case of Peter Cook^ hi A
70liiiBe,p.811. .
:3
Jfipr ih$ Murder tfMrs. Sarah Stout. A. D. 1699L [1 1 10
ynuui bath mid any tbingf concerning
w, and given his Terilict by way of dis-
r abew^ his aficction one i^ ay or othvr,
iild be good cause of challenge.
baet. Hy lord, then we should keep
e while to-morrow morning.
I HattelL If there hath been any great
ip between any juryman and the party,
lok ill if he be insisted npon.
>0r/if r. Mv lord, I do not insist upon
profess I know of no friendship, only
-. C'Urke in elections hath taken our
in town ; 1 know I hare a just canae,
I reedy to be tried before your lordship
fair jury of the county ; tben^re I
isist upon it.
I the Jury sworn was as followeth :
Lloyd, William Watson, John Prior,
irrow, Geofge Holgate, John-Stracey,
Parrot, Sam. WalKngham, Francis
Lioh. Crouch, John Cock, Rfehard
m.
'<omper. My lord, I hnmbly move that
ave pen, ink and paper.
HaUeiL Ay, by all means.
Arr. Hold ap your hand. (Which he
4 so of the rest. You of the jur^ ,
0 the prisoners, and hearken to their
They stand indicted by the names
{Prout in the. indicthient, mutatU
*)
My tord, we desire we may bare pen,
paper.
iheAttiie, There are three of the
ire pen, ink and paper.
HatieU, Let as many have it ss will.
me$. Blay it please your lordsliip, and
llemen tmt areswom, 1 am of counsel
ing m this cause, and it is upon an in-
i by which the gentlemen at tlie bar
nuied lor one of the foulest and most
irimcsalnnost that any age can remem-
lelieve in yow counl^ you uerer knew
this nature ; for here is a young gea-
n of this county strangled and mur-
the night time. The thing was done
rk,tharefore the evidence cannot be so
•therwise might be.
•be was strangled and murdered, she
wA down into a rirer to stifle the fact,
nake it supposed she had murdered
■0 that it was indeed, if it prove other-
lowbic murder, a mnrder accompanied
ike <^umstanees of wickedness and
iiat I remember in all my practice, or
dor.
fact, aa it was committed in the night
it was carried very secret, and it is very
have badySo much light as we have to
nuicb satisfoctkm ; for we liavehere,
loner, two trials; one to acquit the
It is diead, and to satisfy the world, and
1 her reputation, that sne did not mur-
alf, but was murdered by other hands.
faitt 1 shall never, as counsel in the
Mdyaggrafatii; I will not improfe or
enkuge the evidence at all ; it shall be only
my business to set tlie fact as it is, and to give
the eviiience, and state it as it stands here in
my instructions.
Aly lord, fur that purpose, to lead to the foot,
it will be necessary to inform you, that upon
Monday the l3th of Bfarch, the first day of the
last assizes here, Mr. Cowper, one of tlie gen-
tlemen at the bar, came to this town, and
lighted at Mr. Barefoote*s house, aud staid
there some time, I suppose to dry himself, the
weather being dirty, but sent hb horse to Mrs.
Stout's, the mother of this gentlewoman. 8oroe
time after ha came thither himself, and dined
tliere, and staid till four in the afternoon ; and
at four, when he went away,. he told tlmn he
wonU come iM lodge there that night, and
sup.
According to his word he came there, aad
bad the supper he desired ; after supper Mrs.
Stoat, the yt>Bng gentlewoman, and he sat to>-
gether till, near eleven o'clock. At eleven
o'clock there was orders given to warm hia
bed, openly to warm his bed, in his liear-
ing. The maid of the house, gentlemen,
upon this went up stain to warm his bed,
expecting the gentleman would hare come up
and folkmed her before ahe had done ; but it
seems, while she was warming his bed, she
heard the door dap together; and the nature
of that door is such, that it makes a great
noise at the clapping of it to, that any lMNli|ria
the honse may ite sensible of any one's ffoing
out. The maid upon this was concerned, and
wondered at the meaning of it, he promising t*
lie there that night ; she came down, but there
was neither BIr. Cowper nor Mrs. Stout ; so
that we suppose, and tor all that we caa
tind and leara, they must go out together.
After their going out, the maid and mother
came into the room ; and the young gen^
tlewoman not retoreing, nor Mr. Cowper,
they sat up all ni^lit in the house, ex-
peeling what time the young gentlewoman
would return. The next morning, after ihey
had sat up all night, the first news of tiiis lady
was, that she lay floatinff and swimming in
water by the mill dam. Upon that there was
asveral ^persons called ; for it was a snrpriae
liow this should come to pass. There she lay
floating with her petticoats and apron, but her
niglit r.iil and morning gown were off, and one
of them not found till some time after ; and the
maid will give you an account how it came to
be found.
This made a grent noise in the country ; for
it was very extraordinarv, it happening that
from thi> time thu maid left Mr. Cowper and
this youii^f irentlowoman together, she was net
seen or heard of till next morning^, when she
was found in tills condition, witn her eyes
broail o|)cn, floating upon the water.
When her body came to be viewed, it was
very mnch wondered at ; tor in the first place,
it is contrary to nature, that any persons that
drown tkemseives should float upon the water.
Wthavemflitieiit evid«iee, tkat it b a thing
1 111] 11 WILLIAM Ut. Trial of Spencer Ckmptr and Men, [
Unit never was ; if persons come «live inlo the
water, tiico tfaev sink ; if dead, then they
swim ; that macle some more curious to Iook
into this matter. At first, it was thought that
Boch an accident might happen, though they
could not imagine any canse for this woman to
do so, who had so great prosperity, had so good
an estate, and had no occasion to do an action
upou herself so wicked and so barbarous, nor
cannot learn what reason she had to induce her
to such a thing. U|K)n >iew of the body, it did
appear tliere bail been violence used to the wo-
man ; there %ias a crease round her neck, she
was bruifsed about her ear ; so that it did seem
as if she had been strangled either by hands or
ft rope.
Geuilemen, upon the exaohnation of this
matter, it was wondered how this matter came
ab«iiir. it was dark and blind. The coroner at
tliui iiin«', nor these |>eople, had no evidence
^i^en, but the ordinary evidence, and it passed
in a ilay. We must call our witncsicps to this
fact, that of nci'essity you most conclude she
was Strang li-ft, and diil not drown herself. If we
gi're you as stron«r a proof as can be upon the
nature of the fjct, that she was strangled, then
the second mnttiT under that enquiry will be, to
know who, or what persons should be the men
that did the fact. I told you before, it was, as
all wicke«l actions are, a matter of darkness,
and done in secrrt, to be kept as much from
the knowledtre of men as was possible.
Truly, gentlemen, as to the persons at the
bar, the evidence of the fact will be very short,
an<l will he to this pui-pose.
Mr. C'owper wiw the last man uiifoiiuDately
in hprcoiin»aiiy ; I coiiUl wish he had not hern
so uitli all niy heart ; it is a very iiiirorliinatc
thing, that his name .should iiponthis occanon
be hrouy^ht upon the stage ; but then, my lord,
it was a strant^e thing, here happens to be
three gentlemen. Mr. iMarson, 3Ir. Koj»ers,
nnil Mr. Stephens. .\s to thtse thnn; men,
my lonl, I (Id not hear of any bu»-iiirss they
hati here, unless it wn-s to do* this matter, to
serve some inien^t or fiienil that sent them
upon this inessii<;e \ for, my lord, they came
to town, (and in thin«,^s of this imture it"is well
we hafe thiscvii!eiii:»;; hut if we had not been
Ktmiirhtcned in time, it would have brought out
more ; thest! thiu^^s come out slowly) these
persons, Mr. .Stephens, Mr. Roger?, and 3Ir.
ftlarson, eame to town here on the thirloentl
them, nnleas there bad been a tort of bti
first. That they should happeo to be i
conditron they were in; and, aeooDdlj
upon the discourse they did at tliat time
my lord, they called for fire, tod the fir
made them ; and while the neople of the
were going about, they observed and
these gentlemen talk of Mrs. Sarah Stoni
happ^ed to be their discourse; one said
other, Marson, she was an old sweelhc
yours : Ay, saith he, but she cast me off
reckon by this time a friend of mine hai
her business. Another piece of diseounM
I believe a friend of mine is even with I
this time. They had a bundle of liner
them, but what it was is not known, an
takes the bundle and throws it upon lb<
well, saith he, her husineSB is done, Mn.
Stout's courting days are over; and the
for wine, my lord ; so after they had dr
the wine they taiked of it, and one pulh
a great deal of money ; saith one to ao
what money have you spent to day ? iiai
other, thou hast had 40 or 60/. for thy a
Saith the other, I will spend all the moi
have, for joy the business is done.
My lord, this discourse happened to be s
them ; which made people ot the house <
der and bethink themselves; when the
day they heani of this Mrs. Stout's being
in the water, this made them recolleci sa
to mind all these discourses.
My lord, after these gentlemen had
there all night, next morning, truly, it wi
served (and 1 suppose some account w
ji:iven of it) that IMr. Cowper and they dwi
tofTf ther, and had several discourses, am
very day wi-nt ont of tot%o; and I tin
soon as they came lo lloddesden, made
their discouri^e an<l busintss to talk ot
Ntont. My lord, ue will call our hiIim
and prove all these facts that I have open
y(mr lordship; and tiien 1 hope they w
put to give you some account how all
matters came uhiMit.
Call Siiruh Walker (who was sworn.)
Mr. Jams. Mrs. Walker, pray^i^ea
count to m\ lord and the jury, of >Ir. (.'nw
coming to >onr house the KSth of Marcb
what was done from his coming there at
to his goii;g ont i*
Walker. Ma\ it please you, my lord,ot
<lay before the List :t^sizes, Mr. Cowper':
of March last, the sissize (lay. My lord, whon
they came to town, they came to an house, I sent a letter to .^I is. Stont, that she miufhte
hnd took lodi;ings at one (Jurrcy's; tliey I Mr. Cowper mI the ;issize time; and tiiei
took a lieil for two, and went out of their lodjf- j we expected Mr. Cowper at that time.aa
ing, having taken a room with a kuife bed in ! rordingly proudiil; and as he came in wit
it ; and aftt'iwanls they went to the (ilove and I judges, she asked him if he wonid alight?
IKdjdiin, and thru ahoiit j; aelock one Maison
came to them there ; in w h.\l company they
came, yonr lordship and the jury will know hy
and b\' ; they staitl ihere, my l(»rd, at th'c
Glove from 8'to 11, as ihey sa\. \i 11 these
three gentlemen came all into thiir lotlging
togetiitr to this (iurrcy*s. My lord, when
thi^' came iu, it ^as very observable amongst
said no ; hy nason I come in later tliao i
I will go iniit the town and show niycelt
he wonitl send his horse presenily. She J
him. how lon^ it wonId he bftiire be i
eoine, lieeanst: the\ wnuM slay tor him?
said, he could not tell, hot he would semi
w-')id ; and she thun^iht he had tbigo|,aiid
mc down to know ,wliether he would plea
■J&r ike Murder ofMrt. Sarah Sout.
A.a
[1114
He said, be had bosiness, and he could
e just tbeo ; but he came in less than
r ofao hour after, aud dined there, and
I away at four a clock : and then my
asked biro, if be would lie there ? And
ered yes, and he ctLvae at nieht about
be sat talking about half an nour, and
led for pen, iak and pa[)er, for that, as
he w^ to write to his wife ; which was
him; and he wrote a letter; and then
tress went and asked him, what he
ave for supper? He said milk, by
e had made a good dinner ; and 1 s^t
supper, and he eat it ; afler she called
^in, and they were talking^ togelher,
she bid me make a fire in bis cham-
1 when 1 had done so, I came and told
it, and he looked at me, and made nie
er : then she bid me warm the bed,
»ordingl V I went up to do as the clock
et en, and^in about a quarter of an hour,
the door shut, and l thought he was
!arry the letter, and staid about a quar-
i hour k)Dger, and came down, and he
I and she ; and Mrs. Stout the mother
e Ibe reason why he went out when I
minglus bed ? And she asked me for
ress, and i told her I left her with Mr.
and 1 never taw her aAer that, nor did
per return to the house.
ma. How long did you sit up?
r. All night.
onet. What time next morning did
tier ?— Walker. About seven m-dock.
met. In the water, or out?
r. Out of the water.
owper. Pray will yon recollect a Uttle,
sry particubr as to the time when I
at night?
r. Sir, it was a quarter after de?en by
k; the difference between the town
loun was half an hoar«
Nrper. But yoo say by your clock it
trier after ele? en f^Walker. Yes, Sir.
upper. Pray, what account did you
9 the time to the coroner's inquest !*
r. I said then it was eleven, or a
ifter eleven, when 1 heard the door
jB^fT. Pray> was Mrs. Stout present
anroner's inquest when you gave that
— HWA^. Yes, she was.
mper. Pray, what aoooont did you
» the time before my lord chief ins*
?
r. 1 gave the 4tcoount that it was
r a quarter of an hour after.
Npper. In her depoaitions there is half
s difference ; for then she said it was
Mr after ten.
HaiulL Which clock was earliest,
the town ck»ck?
r. Ours was half an hour faster than
mper. How came yoa to know this ?
r. By reason that dinner was dressed
•k*S| and it was ordered te be ready
by two a- dock, and it was ready at two by the
towo^clock. and half an hour met two by ours^
Mr. Cowper, When you came down and
missed your mistress, did you enquire after her
all that night?
Walker. No, Sir, I did not go out 'of the
doors ; I thought you were with her, and so I
thought she would come to no harm.
Mr. Cowper, Here is a whole night she gives
no account of. Pray, mistress, why did not
you go after her?
Walker. My mistress would not let me.
Mr. Cowper. Whv would she not let you?
Walker. I said I would see for her: No,
saith she, by reason if you go and see for her,
and do not find bier, it will make an alarm over
the town, and there may be no occasion.
Air. Cowper. Bid your mistress use to stay
out all night ? — Walker. No, never.
Mr. Cvwper. Have not you said so ?
Walker. I never said so in my Ufe.
Mr. Cowper. Pray, Mrs. iValker, did yoa
never take notice that your mistress was under
mdancholy ?
Walker. I do not say but she was mdan*.
cboly ; she wa&ill for some time ; and I im-
puted it to her illness, and I know no other
cause.
Mr. Cowper. Have yon not often told people
that your mistress was a melancholy person^
upon your oath?
Walker. 1 have said she hath been ill^ and
that made her melancholy.
Mr. Cowper. I will w you this question ;
pray, did you ever purchase any poison more
or less, within these twelve months?
Walktr. Yes, Sir, 1 did so, and can tell
what it was for.
Mr. Cowper. By whose order ?
Walker. By inv own order.
Mrv Cowper. Did yon buy poison but oncey
upon your oath ?
Waiker. 1 believe I might buy twice.
Mr. Covper. Where?
Walker. Of Mr. Ludman.
Mr. Cowper. Both times there?
Walker. Yes.
Mr. Cowper. Of him ?
Walker. No,of the young man.
Mr. Cowper. Did you ever buy any noiaoii
at Luton?— ITn/Aer. No.
Mr. Cowper. Did you ever buy any by your
mistress's order, or of one Mrs. Crooke, upoa .
your oath ^—Walker. No, 1 never did.
Mr. Cowper. Pray, at what time was it that
you bought this poison you speak of ?
Walker. I cannot remember.
Mr. Cowper. Pray recollect yourself.
Walker. It was within this half year, to be
sure.
Mr. Cowper. What was the name of the
poison vou asked for?
Walker. I asked tbr white merGury.
Mr. Cowper. She sailh, I nassed by bar
mistress's bouse, and went directly to BIr. Bare*
foot's ; pray, did not you come to Mr. Bare-
foot's after me f-^Waiker. Yet, air.
J113]
11 WILUAM III.
Bf r. Omptr, Prnj did you ^ri the same
tccount belbre the coroner, wheu thu matter
was enquired iuto, tbat you have now done ?
Walker, Yea, I dkl as oear aa 1 cao tell.
Mr. Cowper. Did you gire thia account in
flttlistanceP
Walker. Yes, I did.
Baron Hat tell, Mr. Cowper, I suppose you
do not mean in relation to the poison.
Mr. Cowftn My lord, 1 mean in relation to
so much of the evidence which she nowyiTes,
and |)articular]y respects me. For what end
or puroose did you buy it ?
Walker. I bought it to poison a dog.
Mr. Cowper, Why should you poison the
Valker. It was a dog that used to haunt our
houie, that did us a great deal of miacbief ;
but that did not do, BO I bought it m second
time.
Mr. Camper. Who gare it to the dog?
Walker, It was another maid did give it
the dog.
Mr. Cowper. Why did yon then swear it was
given the dog?
Walhtr. Sir, I saw it gircn.
Mr. Comper. Did your mistress know of it ?
Walker. Yes, she did know of it aflervnuiis.
Mr. Comper, How did you give it ?
Walker, In warm milk.
Mr. Cowper. How did the milk look ?
. Walker, It did not look discoloured in the
least.
Baron Haitell. You said just now your
mistress was ill, and that made her melan-
choly ; what illness was it ?
Walker^ My lord, she bad a great pain in
her head.
Baron Halsell. How long had she been
troubled with it P
Walker. Ever since last May was twelve
months was the beginning of it.
Mr. Jones. Did you evtT iind her in the
least iriclinetl to do heriielf a miscliiet?
Walker. No, I never did.
Mr. Cuuncr. You bought poisou twice, did
you give all the poison you bought to the <do\^ ?
f^'ulkcr. Yes.
Mr. CutLpcr. Tlie first and the last ?
Walker. Vcs, ihi- whole.
jMr. C.V/<^7'( /. How much did you buy ?
Walker. 1 a;u i:oi certain bow much I
boui>:lit.
Mi-. Ccirpcr. iVay, wluit inisicbief did it «lo
ihC d'»tr;'
KdUr. 1 r.ir.Rjt tell, be may be alive till
now tor ^l•li•;ilt I know.
Mr. dyri/.fr. "^N hui mi^e'iii'ftiid the dofif do ?
Walker. A pfreal ileal, iie ibrew down M'veral
tbin:rs ami broke ihom.
Mr. Jones. IJ:d >lr. C'o'vih,t, upcn your
oath, bear Misfr.ss Slont ^ite}ou order to
make his fire, and warm hi.N iicd :'
Walker, lie kiiows l>est, r.l.c'.bcr he heard
it or no ; but he sat by her when she spake it.
Mr. Jcmes. Did she speak of it so. as he
might bear ?
Trial qf Spencer Qmper and aikerst
Yesy ahe did ; for he «
Walker,
than I.
Mr. Jonei, And did not be oontradi
Walker, Not in the least
Mr. JoMs. Was it the old or yono
tbat gave you the order ?
Walker, The youug woman.
Mr. Cowper, Pray did the dog lap
you put it down his throat, opon youi
Walker, No, he lapt it^ upon my
Mr. Jona, Did Mr. Cowper seo
horse from yoor house the next day ?
Walker, i cannot say that ; I waa
way.
Mr. Jonet. Did he come to your 1
terwards?
Walker, No, I am sure he did not
Mr.Joaet. Was the horse in yo
whenitwaaaentfor?— -IFolAer. Yes,
Mr. Jo»c5. And he did not come
House again, before he went out of tc
Walker, No, 8ir.
Mr. Jonef. Do you know which
went out of town ? — Walker, No, Sir.
Baron HtUsell. Did Mr. CowperoM
at your house at the aaaizea P
Walker, No, my lord, not ainoc
there ; the aesaions before he did.
Mr. Comper, Where did you cob
vite me to dinner P
Walker. At Mr. Barefoot'a.
Mr. Comper. Th^u you knew I wai
there P
Baron Ifarie//. Who wrote the
Friday, that 31r. Cowper woukl \oAsk
Walker, I know not who wrote ii
sent it.
Mr. Jones. Did he tell you he woi
there that ui^'bt before he Vent away
Walker. When be ^went from A
said so. ^
Mr. Jojics. Call James Berry. (^
swuriL) Now, my lord, we wilfjjivc
of the manner how she was found. M
Do you remember when Mrs. Stout v
by your mill i*
' Berry. No, indeed, 1 do not know
day it was.
Mr. Jones. When you found her, d
memlier, how, in what manner slie Wi
Berrtf. Yes ; 1 went out in the no
shoot a flush of water by »i\ o'clock, \
something a floating in the water, i
out to see what it was, and I saw ps
cloaths.
Mr. Jones. Did you see her face P
Bern/. No, not then.
Mr. Jonet. Was her face under
above '^
Berry. No |>art of her body waa abi
only some part of her cloattis.
iMr. Jones. How many foot deep I
water be t — Berry. Five foot deep.
Mr. Jones. And how much was S
water, do you conceive ?
Berry. Site might bc under water. i
Of six inches.
J^ the Murder ofMth Sarah Siout. A. D. 1603.
riiis
Iff. TbcD tbe whole body was not
WjWtB it?— Berry. Yes.
et. Was her face under water?
Yes.
HaitelL Did she lie upon her face,
k?
She lay upon her side.
tet, When site was taken oat, were
tpeuorshot?
Her eyes were open.
tet. Was she swelled with water ?
I did not pereci?e her swelled : I was
; ft, and did not so much mind it as I
teg. Bat yon remember her eyes
Dg open P — Berr^. Yes.
let. Did yon see any marks or bruises
^"-Berty. No.
9per, Did you see her legs ^
No, I did not
vper. They were not abore water ?
wptr. Could you see them under
Berry. I did not so much nrind it.
vper. Did she lie straight or double^
^ether by tbe stream?
1 did not observe.
vper. Did you not obstrre the weeds
lery under her?
iWa was no weeds at that time
ts.
ret. Was tlie water clear?
No, it was thick water.
19. Was there any thing under her,
cf , to prevent her sinking ?
No, I do not know there was ; she
r right side, and her right arm was
ween tbe stakes, which are withm a
» another.
t<i. Did any thing hinder her from
-Berru. Wot that I saw.
ftet . Oid you help to take her out
iiakes ?— Berry. No.
let. Call John Venables.
mper. Mr. Berry, if I understand
you say, her right arm was driven
be stakes, and her head between the
ould you perceive her right arm, and
I her left arm ?
Within a small matlerupon the water.
EutmlL Did you see her head and
MtlM stakes?
Yes, lier arm by one stake, and her
let. Did ker arm hang down, or how?
I did not mind so much as I might
u
len 3ohn Venables was sworn.]
Iff. Did Tou see Mrs. Stoat, when
iken out of the water, as she lay in h P
St. Yes.
let. Give an account how you found
!«. She was floating upon the water.
MS. How p was all her bw<i y, or what
s water ?
Venables, She lay upon her right aide, and
this arm upon the water, rather above the water,
her ruffles were upon the water.
Mr. Jones, Did you help to take her out ?
VefMhks. No, Sir.
Mr. Janes. Were her eyes open then ?
Venables. Her eyes were open when I saw
her, but I did not see her when she was taken
out.
Mr. Jones. Did any thing hinder her from
sinking?
Venables. I saw nothing to hinder her if she
would have sunk.
Mr. Jones, Call Leonard Dell. (W\\o was
sworn.) Did you see this Mrs. Stout m the
water?— De//. Yes.
Mr. Jones. Pray, tell us in what posture she
was found ?
Deil. I saw her floating in the river ; I saw
her face and her cloaths.
Air. Jofie^. Were her deaths all above the
water?
DelL Her stays and her coat that she had
next her.
Mr. Jones, Were these plainly above the
water ? — Dell. Some part of them.
Mr. Jones. Did you see her ftoe, was that
above the water?
DelL No, Sir, it was between the piles*; she
lay on her right side, and her head was betweed
the stakes, and her right arm.
Mr. Jones, Did you help to take her out of
the water ?—De//. Yes.
Mr. Jones. Did any thing hinder her from
sinking?
DeB. Neither stakes, nor any thin^ there.
Mr, Jona, Did her arms or neck stMk to the
stakes?
Dell. Not to my thinking.
Mr. Jones. Was the water clear, or weedy ?
Dell. It was very dear.
Mr. Jones, How many f$Qi deep was it ?
Dell, I know not but it might be five foot
deep.
Mr. Jones, Did you help to take her out ef
the water ?
DtlL Yes, Sir, and we took her and carried
her into the meadow just by, and bud her on
the bank.
Mr. Jones, Did you observe her face, neck,
or arms, to be bruited ?
DelL I saw no bniise at all.
Mr. Cowper. How did you know but her
right arm did reach to the ground, since yo«
did not see it P
Dell. We could see her arm lie in this dmui-
ner between tbe piles, the right arm was down-
wards, for she lay en one side.
Juryman. Did you see any arm aliove io the
water?— De//. No.
Baron HaiseH. You shoohl propoie your
questions to the court.
Jurynian, My lord, I desire to know where
was her left arm ?
Baron HaiselL Where was her left arm f '
DelL I cannot tell how it did lie; IdidliOt
obecrveit
;^
U 19] 11 WILLIAM 111. Trial of Spencer Cm^
Baron HutsdL When you took her oat of
rtlje wnier, did you observe lier body swelled?
1 Veil. We carried ber into ihe nieatlow» and
[laid ber on the buitk-side^ and there she lay
about an hour, and then was ordered to be car-
ftied into tbe miller's.
Baron HaUdL Did you obaerve that any
|;Water was in ber body ?
J>c//, None at all i bat 1 could see ; but there
[ ivas Bome small matter of froth came frora her
I tnouth and nostrils.
J Juryman, My lord, I desire to kcKtw wbether
her stays were faced ?
Dell. Yes, ahe was laced.
Mr. Copper ^ If I take yoii right, yoa say
rshe wi» strait* laced ?
Dell. Her stays were laced.
Bir. Cowper. And you say there was froth
5>od foam came out of her rooatb and nostrils?
DelL Yes, Sir,
Wr, Jona. Pray what quantity?
DelL 1 coukl hold it all in the palm of my
nd.
Mr. Cowper. How was she take^n out of tbe
Bterf
Dell. My lord, we stooit tinon the bridge, I
l^nd another man, where she lay, und be laid
tiold ot her and took her out.
Mr Jon^i And did you not perceive she
naa bun§['? — DtlL No, iny lord.
Mr. Ojwper. Fray, where was she laid when
be was taken out ?
DelL In the place called the Hopperti, just
Mr. Cm per. How long did she lie there?
DelL About an hour.
Mr. Cowptr. Did you stay tbere all Uiat
lime ?—!>€//. Yes.
Mr. Cowptr. And did tbe froth continue to
sue from her mouth and nostrils ?
fiaron HntieiL He told you, Mr, Cowper,
be could hold it all in the palm of hiH hand.
Mr, Jona. Call John Ulle. (Who was
vorn.) John Ulfe, did you see Mrs, Stout
I ibe wag taken out ot the water ?
Ulfe. Yes,
Mr. Jonci. Gtre ati account of the condition
be was in.
Ulfe. She lay on one aide ; I be1|^l to take
^ her out.
Mr. Jonei^ Did she hang or stick to any
Ibing ?
Uy'e. There was nothing at aU to hold ber
up ; she lay between a couple of stakesj but
ibe slakes cuuld not hold htsr up,
Mr. Jana. Did vou see her after the ^ .
Uken out ?—{///'«. Yes.
Mr- Jonet, Did any water come out of b'
Ulfe, Nothini^ at all, only a little (WKb r .
ODt of ber nostrils.
Mr. J<m«. Call ICalbefitie Dew. (V '
•worn.) Did you see I^Irs, Stoot Uk'
Ibe rif er ?-
Yes.
Mr Jonr^ Did yuu aee her ia <
hclere.^— DoL. Yes* 8ir.
Mr, Jpnei. How did abo lie in tl>« n'
JUm* Slie lay side- way with h^^ <^
M III I
1
and ber teeth clifiK bfd in t
fl»mio>f a hale from lierj
and ber |iettico)iU wer^i
Mr, Jones. D^ii notlti
i»g? I
Dew. Her n^bt arm 1
Mr. Jofi€*. Did you i
taken out of the river ?-*^
Mr. Jones. Was «Ue swi)
Deti\ I did nolperoai^
all,
Mr. lontt. Did yoo |
Dew, No, 1 touc
coat. '
Mr, Jt/tiei, Did
in the water ?-^Dfir,
^Ir, Coti.per. Did
arm was?
Dew. I tv>n)d nu
waterfliMv ' >
Mr. C
lime ?
Dew. No, Sir.
afterward.
Baron Hat$%V
lay on i
Baron
Dew
eyes ; I <T
waa out -
Ll!
'Afn-Sffroft ^tnd.
A. D. 1690. [1126
*>«r I Mr. Jbttcff. IVbat colour was it of? .
Pilkimgtim. It leeined reddish and blackish :
t colour, it wA^tiko a scttlingr of hlnod : I
'U how to make it out very well.
* Had ahe any circle round about
'^Ston. No, out that I see.
- did not you make 5om«
f hat you know ot?
"f. and dare not
iiich
Tilrs.
ion was
when she
'J. Siout de-
.;iid takings a
.ii\e her body
water came out
I'lt iK'rceire any;
v a redness on the
iier ear was black,
ik upon her breast on
i in tho
was not
our exa-
^ome words,
of.
swore so, upon
iicliere T did ; if I
. examination, it is
. r. Yonn^ of Hertford,
lien you were examioedP
le was so. The ni«xt day
inc ag^in to put on her
. and I was one that hH|>ed
a way, and there was nut one
onie from her; and I laid a
i'hio, when I helped her into
i did not see the least moisture
• r.
r. What day was it, that you put
coffin ?
'on. The next day after slie was dead.
"iper. Do you know nothing of her
■liveyed into tlie barn?
ington. 1 happened to be in the bam.
Stout desired me to go with liorf and she
:)rought up in an indecent manner, and I
I a sheet about her. 1 was in Mrs. Stout's
»iiKe before her daughter was brought thither.
Mr. Jones, Call Dr. Coatsworih, Dr. Nailor,
Dr. Woodhouse, Dr. Bkle.
(Mr. Coatsworth was sworn.)
Mr. Jones. Pray, doctor, had you a ticw of
the body of Mrs. Stout ?
Qoatsaorth, Yes, I bad. Sir : I am a sur-
geon.
Mr. Jones. Pray, give an account of it, and
what your opinion was how she came by her
death?
Cotttsworth. My lord, in April last 1 was sent
for by Dr. Philips, tu come to Hertford to see
the Inidv of Mrs. Stout openc<l, ulio had been
six weelks buried ; and he told mc, that there
was a suspicion she was murdcied, niid that
hi^r relations were willinj; to have htT taken up
and 0|»eiutl. I canio down, 1 think, <»n tho
27th of April, ami lay at Mrti. Si«miI*m house
that iii;rht ; and by her dtscoursr, I understood
she wanted to heM.itisfied, Mhelher her daughter
was with child ? I told her, it was uiy itpinioo
we should find the parts contained in the ab-
domen so rotteui that it would be impossible tA
inihjMM, V9km
_f.'J3bK fiw. Mid
imiBli/QQnniplML ib«t, w^' irm ivviliiBff 1i*
wmiM lwf9U.ifoiie» •iidMn«4id opettlm^
rtoaMeh aod ffote were m fall or wind i^
INbig^ JIM tNikU0wn with » jfmraiWkmi
MMtWffutouicte, airi c«M to the olmtt,
flMwPhriiiNitiieireaillwin bit ImunI, ufl
aftewvde cot it oirtend Iii4 tt^Mi tbel»Ue|Md
gawedrkiiid: we mw «|q the c«?iiy of it» ftiid
ir tliere iuid been eoy thii^ ibere ein miiiate at
a btir, we ctifrbt kn^iS^mmi^ Iwiit «ts per-
iMy.'ImaiidMohr; ood iillBr.ttel» wti pot
tlMUrtettiiietiDto<£eir pbcei; tJuT-MlNdlrfm
»fto tbi ItfiBltcmMd ft >rt#-optM4 Mb an
iMMW-koife, aiid It mink Aitfr eofd M <Mil iribii^
fctioyirfcitrt-iftenwftikwji o|M^ tHe bttiHi
•ad Jobet of liie loogt, aiid thOvl wit no woltrt
|lMm» toM.«i^'«Mlrtid0, uid look up Ibr
MM^flflheliMi^loOt toteo if tbeiawwito
Mir h tbo diMhnfiii,: oad: thonwiff mm,
W«il iry. "Aeir I mMmber I iiid» tbfc
JMwtoeoiddaot bo.drawnod, Ariffho bttf
Mfliio«iter,thomter mptt htferallod ofi
JlM|^tt: thui wat llienoMtUiiiliiwil
iltfcent botfbrti^ntrktoboiiiber
iMOlEt it watimpdMUeibr m to diieo^
^tote tbey were to rotten.
MT.Cciiper. Yi^ut^r^ilkh intpeetkm wit
mode about six week's after slie wat dead t
: CoaiuDQfth, It was made on tbe S8th of
April.
Mr. Cowper. She was drowned on the 13tb
itfMardh.
Mr. Jont$. Did yon make an incision info
those parts of the neck and head ?
Coatsuorth, No: I toki Mrs. Stoat and her
SK>n, if you imasrine the skull tobeiiyured» I
.will open the hdid ; for if the scalp be never so
rotten, yet if the skull has suffered any im-
pression } shall discover it ; they said, they did
not suspect a broken skull in the case, and so
\we did not examine it.
Mr. Jona. But all her other parts were
ao«nd ?
CcaUvorth. Yes, sound to a miracle ; for I
idid not imagine we-could find them to.
Mr. Jones, Call John Dimsdale.
Mr. Cowpfr, My lord, 1 would know, and I
.desire to be heard to this point: I think where
the coroner's inquest bare viewed the body, and
the relations have been heard, and the body
buried, that it is not to be stirred afterwards for
any private inspection of parties, that intend to
•Dfute themselves prosecutors ; bnt if it is to be
taken up, it is to be done by some legal autho-
rity I tor if it should be otherwise, any gentle-
man may be easily trepanned : for instance, if
they should have thought fit, after the coroner's
view, to have broken the skull into a hundred
pieces, this was a private view altogether amopg
thesnelf at. Certuoly, if they iolaiidtd: to
hnte prowcuteii ine, or any dibit
upon thi« evidence, they oaght to
us notice, that we migUt hate bm] f*4i
f^eoris am^)ii|^ them^ in superiatrud Uifir pt*
ceedini;.^. My lord, wrUi subfaicmoii, thiiQC|kl
Dot to be given in eridence.
Baroti UqIuIL Mr Cowper, I lUWkfoi
are nf}l in eai'oe«>t \ there is no ooloor tnr Itei
ohjectbn t if they did take up the hm\y wiikal
notic-e, whv should not thai be efiilaM^/ ts*
less yoa ttiiok ihey had s dmigtk to tmmm
themaelves*
Mr« Cowprr* Had you a MtMii* Inqdrw^
i|umt or any bwfol fvaffttnt for makiiif Uiiiir
spiction ?-^Cmtm&rth. No, ther« vnmm*
Bartia BMtdL Suppose they dia an iil llii|
in Ukiri^ up the liody wiihyut lOfiMrof^
ihuui^h 1 do not koow any more Ul m l^liaf f
thai tf^Hly than any other i hut, hoveter. itiini
any reason why we should not bear ilui ffi»
dencG ?
C^mt^worth . Mr. CambUn, sir Wm, Cow^
Burireou, was there by.
Mr, Jmet^ Cdl Mr. Dimsdale, sen Sir. pff^
waa sworn.) Bsd you * * i^w of the bodj tim
it wiis taken im P — 'Dimaiiik. Yfa,
Mr. Jm£^. Fn»y, give your ojtinwHi of k
JJim%dah. On the amh of Aoril, iKtli»>
member, I was sent for down by Mix >*uiiiHi
view ibe body of her dsng^hfer* Htfi^ lUuiffcil
was just Isken n«t of the sfroum), but nol *^
e4 ; ihey had juNt toacliefj ihe body, but li
ojjened the skin when T came ihere
Baion BattflL Are vou a siirgeon f T
Dipuda U. Yes, my ford , Fiodi og \m ki
io much mortified t flown to Lcr o«t, w
thought all the parts were fx.\t^\ and lall
consultation, whether we ahould oiieo be a
not ; but Mrs* Stout wait very much *nfipi|
because a great scandal bad W^n ms«ilt iitf
her daughter was with child ; and ^t mi,
she would hove her opened to dear bfr rtpfr
laiion. With that we opened her, aad ftwrf
her body at sound aa any Dash could be; m
inantier of putHfication in her tuni<^ ^ ^
other part, but she waft tctv full o* wittd, ^
searched the ttonoach and the thorax, aod IM
tiot one drop of water about it. I vi^ mk
curio oa than the rest, and turned away i«
1e^, to see if the coffin waa aoUeiU %^^
coffin aod fthrowd were not tvei. U^t utcf^
was taken out, and I saw no manner of M|pa
Cimception* After ijjw we had a eooiuiuta*
to ecrD^idcT, whetiier ahe was drowiied of (<*
4rowned ; and we were atl of o|>iuion, ibai ^
was not drowned ; only Mr* CamMio dann^
he mj^ht be excuse<1 from giviog \m o^tiaiv^
wbeth«' »b© was dfowned or not; Uit all if
r«8t of undid gir^ otir opiotont, that abi atf
not droH ned«
Mr- Jnms. Give your reaioiro, why
lieved she was [tot drowned.
Ditmdal^. My reaa^jm was Ihif^ Bi
we found no water in h&r ; her intestinepi
not pntrjfied ; f^r if there had b««ii «1
her, that would have eause^i a txemiel
and that wotild hare n>ltfi4 th« luugaiOl
, JSir the Munkr ffMn* Sinift «M.
A.D. 1690.
[UM
Hsi$elL Cottld yoa tell, m mny
er, whttwr she was drowsed or noF
i/e. Yes, mj lord, for tbisreosoo;
: bed been drowned, tbere bad been
I of water ; and if tbere had been a
iter, it would ^tLie rotted her lights
l^ats ;. and that is done in a week's
ermeotation.
vp€r. 8ir, I desire to know, whether
to reason and your skill, after six
le, it is possible ibefe should be water
rax?
tie. I do believe tbere maj be some ;
not eome out nfter the body is dead,
trilaction ; aqd there was no fHitriiho-
t was 6rin and sound,
UatseU. What parts would bafe been
IV the water ?
Je. The Iqngf and bowdls.
Haiteli. And they were firm ? .
Ue, They were: and if there bad
T, tbey would have.been putriied*
iifli. Call John. Dimsdale, junior,
n. Was her uavel started r
i/ceen. No : I never aaw Sacba body
toper. Bid yo« ever see a body that
ned, opened m% weeks after?
Ue sen. No, never. Jf a body be
ft fortoij^bt, the bowels will be so rot-
will be no coininir near it ; and I took
ncftiee, and I did not see one drop of
HaiselL Was the coffin dose ?
\ie sen. Tes; it was elose and diy as
whatsoever; and all the parts sound,
ad and neck, and left arm.
u$. What do you think coiUd be the
that?
k een. The left arm was rottener
ther, the neck was rotten before.
RSff. Wliat did yon take to be the
t?
i/esfB. leaDBOtjndgeof that.
I Dimsdale junior, Who was sworn.)
^jun. My lord, the body was opened
ame to see it, and they were drawinfjr
davit, that there was no water in the
they deoned me to sign it ; but I de-
tohiok into the body ; and I did kiok
I turned the intestines aside, and tbere
ilerinit; but the head from the neek
mnch pntrified.
icf. Do you believe she was drowned?
/e jun. No, 1 believe not
wi. Did yon open the child that was
Whatdiflercoce was tbere between
if that child and this?
ie iun. The chiM was extremely
I the belly and stooBacb, and bad
lofwnfterm it.
nk Was the child bead that you
lejoB. It was bud upon the table be-
vper. How kiif wm^ k btfbm ibe
Dimtifsft jUB. It was drownnd in the after-
noon, and opened the nixt morning.
Mr. Cdspper. Yon said, 8ir, you was asked
to sign the aQdaviiP belere you saw the body*
and yon were honest, and would see the bo^jr
first ; pray, who asked you P
DkmAiUjon. All of them did. *
Mr. Camper, Who in particukr f If yea
please, name then.
Din/jdb/ejon. Mr. Coatsworth, Mr. Philips)
Mr. Ckmblin, &c. they asked me to set my
hand to it, because tbey thought 1 bad seen il
before.
(Then Dr. Dhmdale was sworn.) '
Mr. Jone$. Mr. Robert Dimsdale, was yon at
tbe opening of the body ?
Dr. Dimidale, I came after it was qiened ;
my brother Midi came together.
Mr. Jonei. What profession are yon of| n
physician ?
Dr. ^Dimedale, Yes : when tbe body . was
taken op, tbey desired us to be there, to in-
spect the body ; but before we came, it liap*
|Mned they had opened tbe body, and were
setting their hands to a paper, a sort of affida*
vit; and when I came in, tbey would have had
OS set our bauds ; but we would dot, till we
had looked upon the body, and went and laid it
open again, and we did not find the least drop of
water neither in the thorax nor abdomen.
Mr.Cowper. Is it possible there shouUi be
water in the thorax, acconling to your skill ?
Dr. Dimtdmle, Tes, we did think there would
have been, if slie had been drowned.
Baron HaiselL Coidd you expect to find it»
so long as six weeks after ?
Dr. Dinisdaie, We should have expected that
or a putritaction ; but we tbimd no putrifaction,
neither in tbe bowels nor intestines, but only
upon her head and shoulders, and one arm.
Mr. Comper, Pray, by what passage deea
the water go into the thorax?
Dr. Dimsdule, It will be very difiicnll fir
roe to describe the manner here; but weabonld
have found some in the stomaoli and inteatinea.
Mr. Cowptr, Pray, Sir, how should it go inio
the thorax ?
Tyf.DmsdaU. By the lympbseduct if carried
by any means.
Mrr Ciwper, When the party is dead, can
any water pass into any part of the body ?
Dr. Dintsdule. We o|>eoed the abdomen of
the child that was drowned,' and found in the
several cavities abundance of water.
Mr. Jonts, When a person is dead, can they
fseeive any water after ?
Dr. Dumdmle, No, for all tbe parts am
dosed and contracted.
Mr. Comper. Pray, if a dead body be put
into tbe water, will not the water come into tbe
wind-pi|)e?
Dr. Dimadmk, I question whether it will or
no.
Mr. Jr»net. Was her mouth shut?
Dr. Dimtdale, Site was pntrified about the
bead and shouhlers, and one arm that i nssr
wupotriftedi itwaMbelnftanDiMltakeiu
11 WILLIAM m. liid tf^ftm§r Cmper ami
IISI]
iflilbr
' Pt.DmadtOe. I beNete If the Imd lyp
' there 'wooM hft^ bets s - putriAu^'
Hfmmm9 9Mmm1tm\ wmIHwm berex*
traoMlMurtty ber arm, b«r bead, and bar breaat,
Ibit waa mitriliedy bal^iar bawda aeama4 flrm
Wlf^Joim. Than yon daaH think lier death
iraa by dnNrniiMrP— Dr. Dnafdal^. No.
. Mr. C$mptr, PraVy did noi you gifa aaoM
cotftteala ar papar, dadaiibg tlia death of thia
fwdawooHUi, before yon aaw the body at all r
Dr. DtMMla/e. No, 1 did not
Mr. Camper, Sir, I wpald atk yoa, waa not
yaa eDfrr that Mr. CamUiif wotild not join
.vKh yoa in opinion P— Dr. DimtdaU. No.
Mr. Camper, DM not y<ta tellhliB that yon
weraacpradnata phyneiaa, and waa angry ha
wottM not join wiih yon f
Dr. DiMidale. Bnppoae I did.
Baton Aalietf. fintdidyooeoornor-
Jh.IHm$daU. Yea, my hMd, we had eema
wmda about it.
Mi^Jpnei; Swear Dr. Coataworth. (Which
») Now, my hnd, wo call theaa mh^
ithatare daelaraof akiH.tohnow their
I of them that are fbaad floating withonl
water hi them, how Ihay came by tfamr death .
•Pr. Coaitmorik. 1 hara not aeen nnmy
drowned bodice to make obeerratioo upon ; hot
It ia my opinion, that every body that ia
drowned, ie auffbcated by watar paming down
the wind-pipe into the lungatipon rmpiration;
and at the same time, the water pressing upon
the gullet, there will be a necessity of swallow-
ing a great part of it into the stcmacb : I have
been in dangc^r ot* being drowned myself, and I
was forced to swallow a ereat quantity of water.
If a nerson was drowned, and taken out irome*
diately, as soon as the suffocation was effected,
I ahould not wonder if there were but little
water in the stomach and guts ; but if it lay in
the water several hours, it must be very strange
tftlie belly should not be full of water ; but I
will n<it say, it is impossible it should be other-
wise.
Mr. Cottper, I desire to know, whether this
l^tleman attempted to drown himself, or was
lu danger of lieing drowned by accident.
Dr. Coattworth. It was by accident : I was
passing up tlie sbip side, and took hold of a
mee rope instead of the entering rope, which
bailing me, I fell into the water.
Mr. Cowptr, But you struggled to save
yourself from drowninf; ?
Dr. Coaisworth, I dtd so; I have seen seve-
ral persons that have been drowned, and they
isave Uin several days, until by fermentation
they have been raised ; but I never made my
observations of any persons that have been
drowned above six nours.
Mr. Jones. Did you ever hear of any per-
aons that, as soon as they were drowned, had
awam ahof e water ?
Dr. CoaUMortL I have not known such a
_ O*
Mr. CW/jfr, Did f oil ever fcnwf, Sf^ i
body Ibal wAk otherwise tdUed, to iwt dhi
Br. QisliMr^iL I never made way discfiv
tioaeftU.
HAiteiL Dr. Brow^ hu a Iriia^
\ in hif Vulgar EmifH , npmi lliii mk^
jOCtfOOncemiiig^ the do^tinir (^f Jt^ii'l Mm; i
do net ajbderttaod it myself, but ke hjki^twhk
chapter about it.
J^Then Dr, Nmitn- was iw<im,^
omu. We ask you the tame aueaiM
that Drl Coatswonh wfl# asktai. Why » %m
Ofiinhm of dead hmHes f Ifa bi^dy he droiM»
win •it hi ve water In it or no f
Dr. Kailor, My lord, I am of op bi«io» ili
it w&l hate a (quantity if si be deowacd ; b«t|
there be no water lo the k^Jy , I bdieve thu Ai
was dead bdora it waa pal ioUif
Vf^Cm^ptr. 1 would ask the dodwuf
qoeithNK my brd. Whether he w^ cut tcoi*
atant-foletr a^nainst tb«» uiterest of our f«{uil| n
thia corporal] on f
. Dr. limkr. I never ilid oonoe to give i vtt^
but aurWiJJiam Cowper, or \m aoo o|ipwi
nit« ttd ^d I Imd DO right to vote^ «
Mr. Co&j^cr* I would liave aKkcd tWan*
^oeitkNl of the Biinsdales, if 1 had t^meoiiNfd
it ; they are of anoiber party, at thb gud*-
Baron Baiteli, It is not ai &U mitiniLiI
the¥ are wiiuesseft.^Tli^ caU Mr. B«bu|na
(Wno vras sworn.)
Mr. JoTta. Fray, what is your opislea d
this matter ?
Mr. }ia^ingimt. I am of opuiioo, thai il
bodies lb at i;o intn the wal«r ativt'i isl
drowned, have water in them, and wmk »i
as they are drowned, and dii nol tiae lo sm
this gentlewoman did,
Mr. Coa^per* Pray, what is your proUi^
Sir?— Mr. BaUngion. I am a surgvoo.
Mr. tamper. Because Mr. Joaca caM yw
doctor.
Baron Uattell* Didymiero'iee any
bodies?
Mr. Bahmgt&n^ Yes, my lofd, oaoe I Id*
gentlewotnau a itatietit iKat w^ bait n ^m.
under water, and she lived several
and in all that time she d ischargad a _
tity of water : 1 never b«afd of an; ibst
ahve int<i the water, and
floated so soon as Ihia
have heard so from phyi
Baron Hatieli, I liaTa heard
they are forced to tve a hiillet
thrown into the sea', thai they
again.
Mr. Compete The
shouki not rite «||f«Jn^ oat
sink without it. But 1 w
ton, whether the gentlawnssan ba mm
went into the water voliatorily» ar HJ
accident?
Mr. Babimgtom. By acd
that doea not alf tbn f ,i,
li
SS] fir ike Murder of Mrs. Sarah Siout.
Mr. Jdiieff. SwetrDr. Burnet (Which was
le.) 'Dr. Bamet, jou hear what is the mat-
io question ; what is yonr opinion of \i'f
Dr. Burnet. My lord, I think that if any
rson fall into the water by acci<ient, or throws
pself in, the body will receive water as long
it is alive, and there are endeavours for res-
atioa, and after these endeavours are over,
ve is no water will come in, for all the parts
I closed ; to consequently there must be
ler in all probability found m her.
Hr. Junes, What, do they swim or sink ?
Dr. Burnet. They sink ; 1 never saw a per-
I drowned taken up without water in my
k; but I have seen several full of water.
Mr. Cotcper. I think you say when the fa-
jtv of respiration ceases, no water comes in.
Dr. Burnet. Yes, that is my opinion.
Mr. Camper. But the water does pass into
ND while there are endeavours for respira-
■ f— Dr. Burnet. Yes, that is my opinion.
[Then Dr. Woodhoute was sworn.]
Mr. Jotiei. Doctor, what is your opinion of
is matter ?
Dt. Woadkoute. Bly opinion is, that no per-
I is suflbcmted by water, but he must have a
Mt deal of water within him, a great deal of
iier in the stomach, and some in the lungs.
Mr. Ctfwper, Pray, Sir, did you ever open
vortheseboilies?
Dr. Woodhoute. Yes, 1 have opened a child
isetfithat had a great quantity of water in it.
f r. O'wper. Did you find any quantity of
Iter in the throat ?
Dr. Woodhoute. There was some, but a
He, but a great deal in the stomach.
Mr. Cmcper. Pray, which way can it pass
Is the thorax?
Dr. Woodhoute. While the person is strug-
hg for respiration, there may he a relaxation
< and the person must suck in water as
fll as air, and some water may get into the
bi-pipe, and so enter into the lungs.
Mr. Co»per. Js there a passage from >the
■n to the thorax ?
Uf. Woodhoute. The thorax is the vessel
Wrcin the lungs lie, the lungs in the thorax,
M breast is the cavity where the lungs lie, the
iid-pipe is the conveyance to the lungs, and
pRiOD in respiration takes down somo water
M, but no doubt the greater quantity will be
I the stomach.
Banw HuttelL Pray let me ask you a qucs-
ia: some of the witnesses said, that if a ncr-
Mibe dmwned, and lies dead a great while,
b iuwarda will be putrificd ; what is your
ibMnofitP
Dr. Woodkomse. No doubt, my lord, where
Mtr gels into the stomach, or wherever it is,
*wiU putrify very soon.
Mr. Jones. Call Edward Clement. (Who
^ sworn.) Are not yon a seaman ?
Ckmeni. Yes, Sir.
Mr. Jomes. How long have ^ou been so ?
i^tment. Man I have writ myself but six
**iit but I have used the sea nine or ten
A. D. 1699. [1184
Mr. Janes. Have you known of any mem
that have been killed, and thrown into the aea,
or who have fallen in and been drowned P Pray
tell us the ditlercnce as to their swimming and
sinking.
Clement. In the year 89, or 90, in Beachy
fight, 1 saw several thrown over- board durinjaf
the engn'^eincnt, but oue particularly I took
notice of, tlj»t was my friend, and killed br
my side ; I saw him swim for a considarabiu
distance from the ship; and a ship comings
under our stern, caused me to lose sight of him,
hut I saw several dead bodies floating at tha
same time ; likewise in another engagement^
where a man had both his lag^s shot off, and
died instantly, they threw over his legs; thougli
they sunk, t saw his body float : Ukewiso i
have seen several men who have died natural
deaths at sea, they have when they have beea
dead had a considerable weight of ballast and
shot made fast to them, and so were thrown
over- board ; because we hold it for a general
rule, that all men swim if they be dead beforu-
they come into the water ; and on the contra-
ry, 1 have seen men when they have beea
drowneil, that they have sunk as soon as thu
breath was out of their bodies, and I could see
no more of them. For instance, a man fell
out of the Cornwall, and sunk down to righti,
and seven days afterwards we weighed anchor,
and he was brought up grasping his arm about
the cable : and we have observed in several
cases, that where men fall over-board, as soon
as their breath is out of their bodies they sink
downright ; and on the contrary, where a dead
body is thrown over-board without weight, it
willswim.
Mr. Jonct. You have been in a fight ; how
do bodies float after a battle P
Clement. Men float with their heads just
down, and the small of their back and buttocks
upwards : I have seen a great number of them,
some hundreds in lieacliy-liead fight, when
we engaged the French. 1 was in the old
Cambridire at that time. 1 saw several (what
number I will not be positive, but there were a
great number, I cannot guess to a score) that
did really swim,, and I could see them float for
a considerable distance.
Mr. Jonet. Have you seen a shipwreck P
Clement. Yes ; the Conmation, in September
1691. 1 was then belonging to the Dutchest,
under the command of captain Clement ; wu
looked out and see them taking down their
masts ; we saw the men walking up and down
on the risrlit side*, and the ship siitk down, and
they swam up and down like a shoal of fish one
after another ; and I see them hover one upon
another, and see them drop away by scores at
a time ; and there was an account of about
nineteen that save<l themselves, some by boatSy
and others by swimming ; but there were no
more saved out of the ship's complement^
which was between five and six hundred, an4
the rest 1 saw sinking downright, some twenty
at a time. There was a fisherman brought
our captain word, that in laying ia of fail i '
h^inm m BOtne oien cloie tttid«r (lie mki ) Hn €^)jtftv #Mikf «ttif>«
We geiterally tfaroir iu b«g» of b&lfast with ciriTuitiiit*i'lltEeY? * ;
I Mr. Jonei. 1 suppose dD paeo thai ire
4lo^n«df you ftink tb^ m with weitrbis F
: 4^emmU Fornieriy shot was albwed f<*r that
atrfwie ; there uwd to he tbr^^eore weight of
Iratsj hilt now it » 4 tm^iorWltft slitl b mmAe
,' ifn JoAff^ Tlien ymi ttke k for a certain
i«fo, lliat tbote thRt are drowneit mnk^ but
^t«e that ire thrown over'bomr<t liu not f
€^km€nt, Ytf9 ; elh^rwise why ahoald tire
gof eminent be al thiit thei etiarge to bAIow
thretfiietire or <burs<?ore weight of iron to iiuk
ercry man, but mHy th«t th^ir BwiitiRtiog-
d>uut titiouki mvt be a discouragcfneEitto othefs?
[Tli«a Riiiiiird Gin was sworn.]
Ur. jQHfi* Yoti ritAr the ^aevtjoQ ; |iniy
irbat tlo \oitiny to it?
Gin. i flras It sea a freat while, and atl the
mru ibal I setj turneiJ uvet-btiijU bud a great
w«jf lit St ihcnr heels to sink lUcm.
Mr. Jme$. Then will tlicy »wijii othisrwiie f
Cm, i^ tbe^ aay.
Mr* June^* Are j/mi aeenmiin f
0iB, I went Bjifttinst my will in two ti^htf.
Mr, Jg4rf, 'liien, gtfntU*ui«n oft li« jury, 1
liopa we baf e gti^en you 3«ilEsfiit;tion liiat Mrss^
B^toutdtd not droit 5 herself, but was carried
tjito the water after she was killed, Thst wa«
the first qut'stirm ; for if it ht tr^e that all detd
bodiei when they ure put into the wuter do
swim, and the bodies that go tttire into the
water and are d It) wned do stnki this is suffi-
cient evidence that she came by her death not
by drownings biiL some other way. Now, my
locd, as to the second matter, and thut is to
give such evidence as w^ have against these
gentleman at tlis bar. Mr. Cowper, tt appears,
was the last man that any one can give an ae>
count of was in her company. What became
pf herallerwardSf or where tliey went, nobody
can teJl ; but the other witnesses ha^ e ^ireo
^011 evidence that h« was the last man that was
with her. 1 shall only give ibis further evi-
dence as to Mr« Cow per, that notwithstanding
&U the cisility and kindnesses that paiise^l be-
Iween him and this familj, when the bruit sod
DOtse of I bis fact was spread abroad « Air. Cow-
|ier did not come to consider and consult with
fild MfS' Btovit what was lo be done; hulhe
took DO roaooer of notice of it, and the nest
diy b« r«^e out of town, without further taking
notice of it.
Call George Aldrid^e and John Archer.
[Jokm JreAer was sworn,]
Mr. J&neM^ Do yon know any thing of Mr.
Cowper^s going out of town about this bnsiness
Df Mrs. Stout's being drownal P
dreker. Ycip t did see him go «ntt ef town
:Mr, Jme$. 'Which way did he go F
Archer. He went the baek way from the
0l9fi I 1 foppioie b« CAmt thit wiji
not tbe way \
cireuit into' Essex?
Arfhir, Yes, I bellerc if^ '.
Mr, Cou^per* I todged at ]fi
be has a back-door to the ^
liorse wos, and i went the ^weei
E*«cx, and it was Wednesday I
day was it yon 8<?e mc go ? £
Arc^rr, It w» oti Ibe Wc
Mr.-C0^^«p.
into Essex,
[Til en George AHH^gi was ai
Mr. Jonri. When did Mi» C^J
of lown the last a^oi^es ? «
Aidrid^t, On Wedncsda;^*
Mr. ifoiffjt. Whit'h wsy did he gki
Al4tidg€. He went the way 10 C
Mr, Jmu. Did yon not frteh hm t
BimV%l^AldHdge. Yes. Sir.
Mr. Jimm. ll&vi ofWu di^fii^N
Aidnd^€. Three limes,
Mr. Jt^flfj. When?
Aidridgt* On Tuesday night I- 1
and went twic^c tnyself ; the ikit I
was nr>body at bom*^ ui deliver the b
went to Mr. HioutX ^n^l os^^ed bina
horse, and he ssid he cuuld not deli«
the maid went honied and tbea 1 m
11 o*oU)ck and had the horse.
Baron Ho/fte/i. Was it eler^ MJ
Aldn4$€. Veil, tpy MnL
Mr. Clipper, When J sent joate
horse^ what directions did t give yOn
Aldridge, You gave medirectioB
your horse, because you said yomli
occasion to go out next tiKNuing hei
the judge,
Mr. Covp€r. The reiaoo I aent foi
was this ; when I heard she had dfo
aelf^ 1 think it concerned me in pi
send a commiKi hoetlir ior hina, foi
toni of the inaiior should seize aM
there asforieiletl.
Baron HaiutL Tbefe was no dan|
for she was found * Ntm oocnpoa fnei
Mr. Omptr, No, my lofd, J sent
verdict
Mr. Jones. It seems you did not I
go sikI take horse there yuttnelf, tb
put ?our horse there.
Now, my lord, we will g!o 00, IS
oilier evidence that we opened t
these three other genllcfuefi that c«a
two of t belli look lodgings at Gumg
in the atternoou, but did not eocot <
ti^een eieven and twelte^ '^i^
brought another in with iliMi t m
he had been in town 6ve or mm Ml
were nret in his aboes, ^%\^ bis bsad
ri!eky sweat ; be had been al mm^
hour 1 belief e, and not driill^g^^
audi « swenL i ""^^
Call John Gnrrey, HittM
Elizabeth Gurrey. W
{J^hn Gmm^mBm
. fit the Murder qfMn. Sardh SUnd. A. D. 1699. [1 138
met. Do you knoir edv of the gui-
t tbabttrf— J. Gurrey, Yes.
ifus. Name who you know.
rrey. There is Mr. Stepheof, Mr.
and Mr. Marson.
tnes. Pray do you remember when
k lo^nflf at your house ?
rrey. 'Hie kit assizes; when they
c, there was only Mr. Stephens and
;crs.
ynet. At what tioM did they take it ?
rrejf. I was at church, and cannot tell
y hired the lodgings of my wife.
yita. What can you say more?
"rey. I was in at ni^it when they
here came three of them at eleven
, whereof Mr. Marson uas the third
nd he said he was destitute of a lodg-
I he asked for a spare bed ; my wife
she had one, but had let it ; wiiere-
r. Stevens and Mr. Rogers said he
idge with them ; so they went up all
, and they called for a fire to be
ind asked for the landk>rd, which was I,
asked metoletch a bottle of wine; and
em I would fetch a quart, which 1 did ;
I they asked me to sit dowu «nd drink
n, which 1 did ; and then they asked
i Mrs. Sarah Stout did not live in town,
ther she was a fortune f I said Yes.
!v said they did not know how to oome
jfht of her ; and I sakl I would shew
T to-morrow morning, not questioning
j^ht ne her sometime as she was oom-
I the street ; so they said they would
I her. BIr. Rogers and Mr. Iwepbens
Mr. Marson wiUi being her old sweet-
aith Mr. Marson, she hath thrown me
k friend of mine will be efen with her
ime.
HaHelL What o'cUn^ was it then P
rrey. I^ reckon eleven of the clock
J came in.
HattelL Did jrou observe in what con-
r. Marson was in ?
rrey. I did not observe, only that he
and put by bis wig ; I see his head
and he said he was just oome from
and that made him in such a heat.
me$. Had he shoei or boots on f
rrey. I did not observe that.
ma. What dui they do the next day ?
nreff. The next morning I heard this
MS w the water ; I sat up all night,
fiuB to. wait till my daughter came
look after the ahop ; and then I went
if, and she was removed into the barn,
y were wiping her face, closing her
d putting up her jaws; and as 1
ck these persons were walking, aod
ir. Marson and Mr. Stephens, and
• the news ; said I, this person has
a sad accident : say they, so we hear ;
iftbeless we will be as good as our
nd go and see her. I went with
d overtook Mr. Rogers ; and Marson
are going to iM Mn. Stent. O Jand-
XIII.
lord! said Rogers, yoo may take np that rogoe
(pointing at Mr. Marson), ior what he said Tail
night ; but I did not tliink, they speaking so
jocularly, that there was any suspicion of their
being concerned in the mnnlet. A second time
1 went, the barn-door was locked ; 1 knocked,
and tl^ev opened it, and let us in, and they un-
covered her laoe to let me see her, and 1 toucheil
her ; and looking about fbr them they were
gone, and I cannot say they see her or touched
her : Then Mr. Marson and they were consnlt-
ing how to send a great coat to London, and 1
directed them to a coachman at the Bell-inn ;
but I did not hear he went to enquire after the
coachman; then they went to ^our kMrdahip'a
chamber, and I went home ; and about eleveii
o'clock I saw Mr. Marson and Mr. Stephens
coming down with Mr. Spencer Cowper.
Mr. Marnm. I did not go out that nighl
after I came in.
Mr. Jones. No; we agree that Did yoa
see Mr. Cowper and these gentlemen togetfier ?
J. Gur. Only at eleven o'olock on Tuesday
noon, Mr. Cowper, Mr. Marson, and Mr. Ste-
phens were coming down to the market-place.
Mr. Janet. Did not they take their leave of
you when they went away from you that fore-
noon P
J. Our. No ; only in the morning they told
me they would send me word at noon if'^they
intended to lodge there.
Mr. MartoH. I desire to l^owof Mr. Gurrey,
if his sister was not in the room'when we came
inf
J. Our. She was in our house that day ;
but whether when they came in I cannot tell.
Mr. Covper. Pray, have you not had soma
discourse with your sister, the widow Davis,
concerning some suspicion that you had of
Sarah Widker, that bath been produced as a
witness ?
J. Gur. I do not renumber any such.
Mr. Comper. Then did not you say these
words. We must not concern ourselves with
Sarah Walker, fbr she is the only witness
against the Cowpers ?
J. Gur. 1 cannot remember any such thing.
Baron Hatsell. You may answer according
to the best of what you remember ; if you say
you have forgot when you have not, you are
tors worn.
Mr. Cowper. If your lordship pleases to gire
leave to Mr. Ourrey to recollect hinuelf. I
ask him. Whether he did not talk with his sister
Davis about some suspicion his wife and he
had about Sarah Walker, the maid-servant of
the deceased?
J. Cur. I believe there might be some talk
of a pei-son that was seen to ao into the church-
yard at some distance with Surah Walker.
Mr. Couper, Did your wife sav that she did
suspect that person ? — J. Gur. Yes.
Mr. Cowper. Didyourwifesay they behaved
themselves strangely, and that stie would have
persuaded the widow Blewit to have watched
her ? — J. Gur. There was sometliing of that.
Mr. Cowper, Wm them not •«■€ aask
4 D
BIr. Cowper. Pray did not the widow Davis
warm thfe sheets for these gentlemen ?
J. Gur. She was with my wife, bat I cannot
iay whether she warmed the sheets.
Mr. CoK'per. When they came home, had
you any loggers thai wanted to come home P
Had not yon one Oape f
J. Gur, I cannot say whether he was in
before or afVer them.
Mr. Camper, Did not you say to your sister
Davis, Now these gentlemen are in bed, if Mr.
Ga|»e would come home, our family w<tuld
he qiiiet P— J. Gur, I do not remember that.
Mr. Cowper, Pray, did not you go to look
for Mr. Gape?
/. Qur. Vf^ I went to Hockley's.
Mr. Cowper, Who did yon employ to speak
to Mr. Gajief-^. Gur, Mrs. Hockley.
Mr. Cowper. When you came home to your
•wn honse, and after, you had been at IIoc*k-
a's to speak with Nr. Gape, what accoiiut
you give of the time of uiglit, uud other
^rtMuhirs?
/. Gur. I gave no account of the time.
Mn. Covper.' Not to Mrs. I>a?i<i ?
. J. Gur. I cannot tell whether I did or no.
Mr. Cowper.' Did not you say, Mr. Gape
asked Mrs. Hockley what a-clc»ck it was?
. J. Gur. No, I Jo not rciricmbor that ; but
Mrs. Hockley went in, and told liim uliat lime
of night it was ; it was chvcn or twelve of the
clock, whether I cannot say.
Mr. Juuts. Call ?ilarilju Clurroy. (Who was
sworn.) Which of these gcniluiiui <lo you
know ?
Mi-s. Gur. Mr. Marson, IMr. Rog^ers, and
Mr. Stephens.
Mr. Jones. What time of \\iv. nii»ht was it
when thoy came to \ our house ? jjive an account
of it, andwhut aou IjcanI them sr.y.
Mrs. Gar: It was a little after five, or
thereabouts, that they curac
JVir. Jirncs. \\\\o v:\n\v !'
Mrs. Gur. Mr. Sti-pUrus, and l\Ir. Uo;;ors,
and there was one Mr. (liibert, that married a
first rouhin of mine; he came ami asLed ine
for my husband ; and I askid him his hubiness,
and he said he wanted to speak with him.
Mr. Jonts. Pray, come to these men ; when
did they romc to your house ?
Blrs. Gur. They hired the lodgiiinr at five of
the clock. When they first came to .see ihem
i was not at house: Mr. (jilk-rt hrou;f||t tluin,
and as 1 was coming alont^ the sireet I saw Mr.
Cilliert uaikin^ofl*, and would not liiokat me.
Mr. Jotitii. \\ hen did tlu } ^<i out .''
Mis. Gur. They never siaid there.
Ml'. Jif/u .;. y\ heii did I hey coiuf in a<;ain ?
Mr*., (riir. Uetween eh-ven and twelve.
Ri-op ii'./.sf//. What did they do when they
came iu a(^m ?
nSO] 11 WILLIAM IIL Tridl of Spencer dper anJollirs, [1140
wordsi that they matt not meddle with Sarah Mrs. Gur. I M-as laying oo aome riieets t«s
Walker, for she is the witness ag^ainst the pair of stau^ when they cmme, and then there
Covpers? was three of them; so they saw me a linle
J. Gur. I said, Do not concern yourself with after, and begged my excuse for hnngiaria
fiaimh Walker, for fear of taking off her evi- another, fw they said it was so late that tbsf
could not fvet a lodtpng any wbere else: aJ
said, if 1 thoug^ht fit, the ijentl^man sboaM Be
with them : And 1 told them 1 liked it fsrj
well.
Mr. Jones. Wliat firing had they ?
Mrs. Gur, The firing Haid on in theiwn-
ing, and they sent for my husband to tdA
them some wine.
Mr. Jones. What did you hear them talk on?
Mrs. Gur. They discoursed with mj ba^
hand, and asked him if he knew Mrs. Ihiih
Stout ; and one of them said to Mr. Blaraos, E
tlu'nk she was an old stveetheartof yoora; Aj,
said he, but 8hc turned me off, but a fnead if
mine b ercn with her-: And Mr. Rogen nii
he was in with her ; and afterwards laid, kr
business was done. They had a bundle, tbi
was wrapt up in a pure wfiite cloth, like Is ■
aprou,but 1 cannot say it was an apron; oi
there was a parcel han<riog loose by it; and wlsi
he laid it down he said, he would pass his «rf
Mrs. Sanlh Stout's courting days were om;
and I said, f hoped it was no hurt to the ra-
tlewonian ; and then I looking upon Mr. Mff*
son, saw him put his neruku aside, sod Ui
head reeked, and he told them he was but jaS
come from J^ndon that night, which mk
him di.<mppointc4l of a lodging.
Mr. Jones. What did you hear them bj
alci't aiiV mono}' ?
Mis. (jur. I a^kcd them how t'.iey wmM
lia*o tht-ir hcd warmed ? And Mr. Mai-snoar-
swcrcd, very h.Jl: With that I wtnt donni*
bond my daugfhter up, and she coukl not v
pre^i^iti y ; I told her then she must ^'o a» mm
as slio could.
. 15aron UaiscU. Pray, do not tell us ^)bA
pabsed between you and yourdau:»hter: Wbit
di* you know oftbese gentlemen ?
Mrs. Gur, I went to the next room, to «
if every tiling was as it should Ij.; ; I luarkec*
cd, and tliev had some discourse ahoiit luowr.
and 1 heard somelHidy (1 do not know «lio it
should br except it wertf Mr. Slepheiit) zwvte
and say, the use money was paid to ni:;bt; )rA
what money tiiey meant, I cannot tell.
y\v. Jones. What did you find when lU}
were j^oih* ?
Mi-s. (inr. Sir, 1 found a cord at theeoilrt'
the trunk.
Mr. Jonts. Was it there in the rooniiogi «
before they came •'
Mrs. Gur. No, it could not, for I swept ^
room, and \s'\\\e<\ down the dust.
Mr. Jonts. Was the cord while?
Mrs. Gur. Mo, it was more dirty tbaa H >
now, for my husband and 1 have worn ilislV
IMckets. ^
Mr. C-ou'per. Pray, who brought the ew
down from al>ovc stairs?
Mrs Gur. My daughter that lived with 0*^
and she laid it upon the shelf.
for the Murder of Mrs. Sarah Stoidi
Zcmper, Did not yoa bear there was a
S inquert tittiDg ?
Gur, The nezl day at night I did bear
Zowper. Why did not you go to the
'a ioqoesl and give an account of it
Gur, T told my husband of it, and I
ly husband if he did not hear what they
iceming Mrs. Sarah Stout? And he
!d, yes, thev ought to be taken up for
ds they said hst night : Why^ saith I,
'ou take notice of it P I think you ought
ibem up. But he went out of doors,
w no mere of him till the afternoon,
heard the words, I thought somebody
e away and got to bed to her.
'lowper, Prav, if your husband beard
)rd8, why did not he go to the coroner's
Gur, I did speak to him to have them
>.
hwptr. Why did he not do it ?
Gur. He said he would not do it ; he
enow but it might cost him his life.
ones. How came you after this to dis-
Gur, Because I was so troubled in
could not rest night nor day ; and I
I if he would not tell of it, I would tell
self, for I was not able to live.
EUzabeth Gurrey was sworn.
ones. Pray, do vou know Mr. Rogers,
>ben8, and Mr. Marsnn ?
ur, I know Mr. Marson, and these are
r gentlemen, I reckon.
fo»€t. What discourse did you hear
nn?
ur, Mr. Marson asked the other gen-
low much money thev had spent ? the
iswered, what vms that to hin^ ; you
d forty or 6fty pounds to your share.
le other asked him, whether the busi-
I done ? And he answered, he belieTed
but if it was not done, it would be done
. Then, my lord, he pulled a handful
y ont of his pocket, and swore he would
all for ioy the business was done.
ouct. Was Mr. Cowper's name men-
ir, I heard them mention Mr. Cow-
ne, but not Mrs. Sarah Stout's.
wa. i What condition was the gentle-
loesinP
IT. I think it was Mr. Marson, his
ere very wet and dirty; one of them
f hot, and he wiped his head with his
chief.
onei. Now, my Jord, we have done as
nrideaoe. Mr. Marson pretended he
then alighted and come from London,
in a great heat, and his &hoes were
wonw what Mr. Marson had been
br w|wi he was examined, he said, he
town about eight of the dock, and went
l0f e and l>9lpbin ioo, and stoycd there
A. D. 1699. [114$
till he came to his lodging. Now it was a
wonderful thing that he should come i^etshod
from a Uvem, where he had been iittiug four
or five hours together.
Then the Examination of Mr. John Maiison
was read:
The ExABfiNATiON of JoHif Marson, taken be-
fore me, this S7th day of April, 1699.
" Who being «amtned where he was on
Monday the ISib of March last, saith, That he
was at the borough of Southwark (he beiti^ an
attorney of the said court) till past 4 of the clock
in the afternoon ; and saith, that he set out
from Southwark for Hertford soon after, and
came to Hertford about 8 the same afternoon,
and put up bis horse at the sign of > an
inn there, and then went to the Hand and
Glove, together with Qod&ej Gimbart, esq,
Ellis Stephens, William Rogers, and some
others, where they stayed till about eleven itf
the clock at nighty and then this examinant
went thence directly to the honse of John Gur-
rey, with the said Stephens and Rogerti
who hiy altogether in the said Gurrey'a house
all that night. And being asked what he said
concerning the said Mrs. Sarah Stout, deceas-
ed, this examinant saith, that on Siinday the
13tb of Maroh last, this examinant beiug in
company with one Thomas Marshall, and tdU
ing nim that this examinant intended the next
day for HertfonK with the marshal of the
King's Bench, the said Thomas Marshall de-
sired thU examinant and the said Stephens^
who was then also in company, that they would
go and see the said Sarah Stout (bis sweet-
heart) He confesseth, that he did ask the said
Gurrey, if he would shew this examinant
whero the said Stout lived; telling the sai4
Gurroy that his name was Marshall, and asked
him if he never heard of him before; and jocu*
larly said, that he would go to see her the next
morning, but doth not believe that he said any
thing that any friend was even with the said
Sarah Stout, or to such like effFCt. And doth
confess, that he did the next day, upon the said
Gurrey's telling him that the said Stout wai
drowned, say, that he would keep liis won^
and would see her. And saith, that meeting
with Mr. Cowper |[who is this examinant's ac«
quaintance) he believes he did talk with hini
concerning the said IStout's being drowned, this
examinant having seen her body that morning.
**JoHN Mabson."
Cogn. Die ct Anno antedict.
Coram J. Holt.
Mr. Jones, All that 1 observe from it, isthia:
That he had been five hours in town, and when
he came to his Iodising, be oeme.in w«tan4
hot, and said he was just come from Lnndoin.
Marson, I had rid forty miles that day, and
could not be soon cold.
Baron UatselL They have done now for the
king ; cone, Mr, Cow^ier, whall do you saj
1 1 WILLIAM III. Trial of Spmeer Cowper end etkent
1143]
Mr. Jone4. Tf your lonlship please, we will
^calt oa« witness mort;« Mary Richardson. Mni,
FBichiiitlsoii, dn yi>t% know Mr. Marson, or «ny
Mrs. RichardsQfi, They caine on Tuesday
knight to I lie BvW at Hodilesdim, and lay Ihere^
l«nd OIK of the vjentleinen, when 1 was warm -
|i|}K tiie ^heeiH, asked me it 1 knew i^f rs. ^rnli
litout ? And 1 said, Yes. He asked me It' I
I J(new whicli way slic came to ber end ? And J
rfotd Itim, 1 could m*t tc-tL
Mr, Jones, U ibnt all ? What did tliey say
f moi* ?
Mrs, Rkhttrdwn* Tboy did desire and wisli
( it mi;i;hi be fuujid out how il c«me al>out ; and
* one ^eutletnan louk no notice of her at alL
[ H'ljey bad a bule bvjfidks but what was tn it J
f cunn(»t tiU^ but there 1 saw it bound up in some
eoloun d stufl'ur other, but what it w^ I can-
Dot ti^ib
M r. Jonei, Ts that all you can nv T
Mrs. Hichiirti&an. Yes, that is alL
Mr, Jo§uk, I'ben we buve done.
Baron Hatxeii, Come, Mr, Cowper, what
do you i^iiy to it?
Mr, C\jU'ptt\ Now they have done on the
part of ihe ktDg» my lortl, and you ^intlemen
©r the jury, t must bej; your patience For my
defcuce. I L-oult«s it was an unfortyuate ac-
cident lor me (a*) Mr, Jonen calls it) that I hap-
iiened to he the larit peri»oii (fWr aot^ht apiiears)
an the company of a melancholy wnmnn. Tbc
4]iscoun»e occasioned by this accident liad been
m sufiieient misfortune to me, without any
thing else to a^fj^ravate it ; bnt t did not in the
}enst imagine that so liule, so trivial an evi-
d<M|ce as here is, could possibly have aflV'Cted
tnc to so great a degree^ as to iiringf me lo this
place to answer for the worst fact that the worst
vf men can |»e gnilly of
I^ly lord, your lordship did just now observe,
that I have appeared at the bar for my clients ;
trill I must say too, that I nercr appeared for
niyself under this, or the like rircuni stances , as
a criminal, for any offeuce whatsoever.
Air, Jones very well said, wbeu ho spfike on
the part of the kmg-. That if this j^ntlewnman
%ras murdered, the crime was lillainoits, L>a*c,
liarbarouS; and cruel ; and for my part l think
«o t«io ', the Clime would be so great, that it
could DCfcr be sufficiently condemned ; bat at
the same tiij^e I may aver, that to suppose a
murder ^y/thout fguyi Aounds for it, and afler-
wards %o, chpi^^^mff^i mon with it know-
inijly and tonilidousl^, is i{^^^ triile as base antl
Wbarous as the tnunJer itsAf could be. My
lord, I speak for my own part ; 1 know not at
what price other men may value their lives ;
lint 1 bad much rather myself was murdert^il
than my repistatioii ; whicli yet I am sensibte
haih' snfferefJ greaUy bitberio by the nialice
iwd artifice o< some men, who have gont^ pretty
lar in making ib)^,fa£i^ as barbarous as it is, lo
be credited of ^. And therefore I arnsi beg
jfour lordship^s und the jury's patience^ while
I not only defend my life, but justify myself
§ki> from these iliiDgs that have unjusUy
U:\
aspersed me, by the conspiracy i
my accusers.
My lord, in all the eridence tii%^
sriven, 1 must observe, iImI there im ^
('vid^ce, with submission, to indi
or any onetiv bdteve the trcoerid, t{t» r (
tie wo man was murdertfd ; hi
siipfKiniiions and inferences, \
dieted by other circumstanc«^, in iiu- ^n
deuce of the prosecutor, ihtil niskelitlJMi
lo prove she was not lomiiered, ii
was ; so that, as it sunds, it can immiatl
to a bare 8up|H>sitioa that she iv«i i
any bo«ly*
^'hen, as to the etidence tbalf
relate* to myself, or the ijcotleinrn wlwi
w ith mc at the bar, tl^ai they m I
cerned in it (if she was murdereii) iI
one syllable of proof; at inost, it .ii
to make us suspect a cnurder, nnt i
only suspected: this 1 ftU^jt^f ai*" ■
deiice, as it now stands v * ^
has tiecn given on tlie
far, in the case of lite, u,^ m ^^..^.j I '
with eiidt'nrc of this nature, wb
proves the murder in general, nnr li
It in particular ^ though no tI<
or anv further answer given, i
your lordship** and the jury 'sjinl^jumiL^
But, my bird, I do not ♦foubt Imi h"''
aide to »*ipe away even that rcnioif i
by my defifuce: they have been \\mg^
eviilcitce for tb«» kiiifj, and therefore I lom
}our paiiCncc while 1 give a particiikk
to every ptirt of it, in a^ good a iikib<}d i
able: and I will waxte a» hit(e (luitf ti i
coui^ist with the jmrtifyir--^ n^* r<-i.Hiiii;«i-
which 1 know your lortl
a regard, to see it doth n- : _ j , '
for my life itself^
AncI I promise your lordstdp. Isbs'*''
you with no evidence which i
plain; no inuendoes or 5us»ph
prove fully and clearly, iu ibt tu*i plat-*,
there was no ground at all, in tlust ^
pose she was murdereil by any one bii^ ' ^
The fmii fact that liiey insisted uih^**^^
n murder from it, was, tbat the body ^^ j
floating : now, my lord, tlmt fact, i a*
the evidence I have, as well as hum I
prosecutor, lo deny ; for the fact i
otherwise, tbat t%ehv was not Ibund I
And whereas the prosecutor^s wil
have been proiluceil to this pointy at<
and poor men, and your Inrdthip <f^
havt: been taught to say generftlty 1^
6oBted ; which, when tliey i
plaiiit and describe how tikiv lBy,t||cy4
tlieinselv#»s in, by shewing she lay
between the stakes, and almusi all nuA
Now I shall yive your lonlahip aod
full and particular account and
from the parish officers, men employ
coroner to take the (mmI^ out of the
the very manner and pusture in wfiit
first found ; which thry are '
to do than the proaecu
•U
wi#^
Jvr the Murder of Mrs. Sarah Stout. A. D. 1699. [1 IM
bflbre all or moit of those people ;
e officers clearly affree, that her body
ler water wheo toand, except some
learanceof her petticoats, near or on the
if the water ; which may be ?ery easily
d for, because the stakes the witnesses
, and which are driren into the g^ond
9 river, to prevent weeds and trumpery
imag into the mill-stand, as the wit-
sre already said, about a foot distance
s another, and are set with their feet
I mill, and their heads inclining toward
with the stream. Now, my lord,
le knows, thai thouffh a drowned body
vt sink, yet it is buoy ant) and does not go
bt and real in oneplace like lead ; for a
ody is aekkwa or never in astream found
«re it WIS drowned : a body drowned
lea has been often found by fishermen
no, and that before it came to float
Iter. Now, if a body fs so buoyant,
i IS driven down by the impellent force
iorrent (though it do not float above
t seems a oonsequence, that when it
I be stopped and resisted by the stakes,
e with their heads downward, inclining
■tream, the stream bMrin^ the body
die stakes, must needs raise it upwardw
mother passage if possible, when the
' and natural v^ olHtructed. I have
wnember, that where weeds have been
Mm a river, and have been rouled along
iltom, when they have come down to
or stakes of a wyer, or turnpike, they
m by the force of the water raised up
those boards or stakes, and forced over
bough without such obstruction they
oubMly oontinuHl to roul under the
I do not know of any other symptom
«iend io, of her not being drowned,
y thing observed of her in the water.
B io the flatness of her belly, when she
t into her coffin, I shall shew it is a
I and natural accident; sometimes
I bodies are swelled more, sometimes
netimes not at all : I think it hardly
I a phj'sician to prove that a body may
Mu with very little water ; that a man
I drowned by strangling or soiTocation,
ij a little water in the lun^, without an^
lanti^ of water received in the body, is
B and established truth ; for 1 am told
en respiration ceases, the party dies,
receive no more water after that : so
tfiing is to be inferred from a body's
more or leas water found in it, espe-
jonr lordship will give me leave to ob-
iM distinction, where ^a bod v^ is volun-
lowDad, and where it is drowned by
I ; fbr people that fall in by accident <fo
» aod strive as long as they can ; every
ly rise they drink some water into the
i« to prevent its fMUsing into the lungs,
r browned no sootier than needs must ;
MM that voluntarily drown themselves,
n desperately plunge into the water,
Mh • BMwiaMc life at soon as they
can ; and so that little quantity in the lungs
which causes death may hie the sooner taken
in ; afWr which no more w received : and I
hope by physicians it will appear there is good
ground for this difference.
The next is the evidence that the surgeons
have given on the other part, rf>lating to the
taking this gentlewoman out of her grave after
she had been buried six weeks. Whether this
ought to have been givenr in evidence, for the
reasons I hinted at, in a criminal case, I siib-
mit to your lordship ; but as it is, I have no
reason to apprehend it, being able to make ap-
pear, tliat the gentlemen who spoke to this
point have delivered themselves in that man-
ner, either out of extreme malice, or a most
profound ignorance ; this will be so very plain
upon my evidence, that I must take the liberty
to impute one or iMth of those causes to the
gentlemen that have argued from their obser-
vations upon that matter.
And now, if your lordship will but please to
conrider the circumstances under which they
would accuse me of this horrid action, I do not
think they will pretend to say, that in the
whole course of my life i have been ^ilty of
any mean or indirect action ; and I will put it
upon the worst enemy I have m the world to
say it. Now, for a man in the condition I was
in, of some fortune in possession, related to a
better, in a ^ood employment, thriving in my
profession, living within mv income, never in
debt {I may truly say not nve pounds at anj^
one ume tliese years past), having no possi-
bility of making ady advantage by her deaths
voiff of all malice, and, as appears by her own
evidence, in perfect amity and friendship with
this gentlewoman, to be guilty of the murder-
ing tor, to begin at the top of all baseness and
wickedness, certainly is incredible.
My lord, in this prosecution my enemies,
seeing the necessity of assigning some cause,
have been so malicious to suggest before
(though not now, when I have this opportu-
nity of vindicating myself publicly), that t havtf
been concerned in the receipt of money for this
gentlewoman, had her securities by me ; and
sometimes that I had been her guardmn, or
her trustee, and I know not what 1 now see
the contriyers and promoter^ of that scandal,
and they know it to be base^Valse, and tnali*
cious ; 1 never was concerned inldtorest with
her, directly or ^
when 1 was bef
true, it was tl
cutoni, I then d(
thank God, I hat
need, to deny the
ao I 'told them'
bhiefjo^bc: it is
ited b;^'the prose-
, WW 1 deny it still. I
not been used, nor have I
ith.
My lord, 'you find the prosecutors have no-
thing to say to me mm this head, after all the
skmlers and stories Iney hare published against
me, of my having money in my hands which
belong to the deceased : Bdt though they do
not stir it, I will, and g^ve y<mr lor&hip a full
account of all that ever was in tliat matter.
When 1 lodged at Hertfbnl, some time since,
shn desired dm to recommend to beta security
1140 II W«JJA|| in.
i&r HQOL Wli came mmy way ; my Tor4« vrbe:o
Totne tp tonut I understood that one Mrs.
Pttlltri a client of mine, harj q mortgage *br-
loaerly made lo Let by oae IHr. Lofiui, ofLaEH'
lielti in SiH-rey, for the liko soiu, and thai she
t'W&& willid*; lo ba*e in her mout^^' : I wrote Id
Muis realletv0(DaD, the derx^fl§«:i)| lo ticqudint
%er of liie st'Citritj ; she ihereupoti did sf ad up
' 30Q and some odd pounds for intent c&l (the ac-
^unt of which I prcidnc^ to my Loni ebkf
jiwlice^) this money \^%w s^nl to me hy Mr
^ramikhUfls t have been informt-d^ and by him
jfiveu to Mr, Tolier's clerk, and by himbrou§*bt
jvublkly to met my lord, ibis niort^wge I
imiflediately ii"ansferrefl by asi-ijppiment, eiidor-
!%iistee lor Mrs. Ptdler, tigged find Mijed it,jind
iLat very tOO/. aail iuterebt diif^, 14 as at oBe and
the same tiote paid lo Mr$. Pulkr, and Sy h^r
the principai was paH lo her diitightcr, in part
of htr portion, All tbi* was traii^cted the be-
.ffiaeiDg of December last, an«1 j^hsi w&s not
*>4rowned till ibe tSth of Mari^h following: and
■my lord, these people Uial are now the prose-
caiors, did oh a before my lord chief justice
thul they bad fountl this tnortir^e aimoOH^ the
ilfCffljed'i wrilifig^ in ber cabinet at thetliue
of ber deatb. Naw, my hri^ I my , that sarinjf
thk oneaerrice I did her, as I said in December
last} t never wa* otherwise concerned with her
in the receiving or dii^po&iiig of any of b£^r mo-
ney I nor hmL 1 cfer any of her fifct»*iliei for
raoney in my keepiiig i and I defy any adv«r^
sary I have to eh^w the contrary.
Mjr lord, as there appear* no malicet no in-
terest, so they bare prored for me lb at there
wai no concealment of «^bamo, lo induce me lo
commUso barbarous an aclion ; other wise^ per-
baps, now Ihey |i ad they can assign no other
eause, they would content themselves to gife
thai retULon., $nd flio^ that scandal at me i and
though I take it by the experience I have had
of them, ibey did not design to do me any fa-
vour^ yet I thank thC'm, in cndearonrin^ to vin-
dicate her bononr, tbey faavc secnri^d my re-
putation ng^mst that e::atumny ; and thiiugb I
mm ^tbfied^ as I said« tbey did not hi tend me
kindnesi, yet I tbank Gmi^ they have given me
M jn£t oppctriiinity to take advantage of their
{gunning for ibe clearing of my innocence in
that particular.
Then, my lord, nol to rest it here^ bat to sa^
tUfy the jury and the world hnw lhi« q^entle-
woman c^me to de&^roy h«r»etf ; 1 shall g^ve
jtbe c1i?ar«st eviilence that was ever given ifi
Any court, that she murdered hemclf^ Wli^ii I
«Dier upon Ibis prooJ', I mnsil of necessity tree*
imEs upon the character of i\m ^ntlewotnan
|bat h dead. I conl^sa this h a tender point,
iUsalhin^ I would wiUingly |m? extnised from»
«d)d it IS not witliDut a in'eat deal of rehidan^^
aud compulsion forced from me. That she
was melancholy the [iro»ecutnrK them <ic$v^& have
luovetl ; bui I must of nece^ity shew vou ilie
CH3icsi2hions ami reAsonis of itt ami ihe witnesses
W]<] %tM yorir lor<ljibip wb»i dtf^p«.-r;&£e ne^u-
U^m ^ bid be«n ttfttlit lunu4rlyt itiid SLai
Tfud qf Bpe^^t Cuwper and 4fiherh ^
will kad me lo near the time of h&
Kliew \irhy, and upon what accidenlft,
away ber«cU', I will noi enumetafi
lara by way of opeoing^ ; nnl^ t ttuti
lordship, thitt some Wuers ut ber *i m
cessity l>e pi-oduced, which truly « aj
should not meddle with, if 1 had not
nocent (^entteineit here to defend as it
self. Pi'th^pf it may be said « thai
I ought to concciil tbo « eakne^ nf tl
MO man ; but then, in honour and
these geiitfemen that are falwiv
with me, I cannot do it : I hone tbi;
son will cvcufie me lo the w*/rft, (br
other that could have obliged me to bi
b- Iters upon the slajje. I solemnly p
stood here singly m the case of mj
upon the evidence given a^tast me^l
be^o inctiiisiderdbk« I would nol dol
must do it, to shew that ifiese gteotki
ai-e Lauocent, and to presenre tSfll^
am satisfied in my own mind they an
lord« when I have dune that, 1 ^ball «
loniibip in the next place^ tb»t it is it
Iiosdble 1 could be coucerned in tbb
lad had all the motirea and profOi
the viQrki to have done h; I maMd
lordibipi in point of lime it cf>ubl not
The maid Sarah Walker, who is I
witncsi, I take it, tliat myn any tbii
least Tf^lating^ to me, taid but now the
siraxk deveu before she carried np 1
and almut a quarter of an hour after,
was warming the bed above ^tair^ i
the door clap, and some ume after
came down and fouml that J aud ber
wi^re [^one. Now in point of time I si
it utterly impossible I c^juld be gttill
fact I am aceuseil of, bcnng seen to 1
the Glove- inn, as the town- cluck stnM
and slay in (I there more than a qnan
hoor« was, aiter several Ibiugs don
lodging, in bed before twdte o^ckM:^,
DO more out that night, a» I shall pt
for thttt little circumttance of sendiit
horse, which they have made uae of
to back thia prosecution, their very t
of lb at matter, shews how much Ibv
to their shifts to juiitif^' their accusiai
aay In prudence 1 ouj^hl tii have done w
1 sent for him on the Tue^iay ; but, as
nesa ^th, I told him at the tiui« I
fetch my horse, not to use tlien, nor ti
course of the circuit 1 was to go inm Bt
the jud^fet the next moruin^ i and i
the prosecumr^s wrtnes«, wlm if iba I
the Glove-inn, vraa ordered to aetMi^
10 litter him dowo, and lo take tviipl
feed hitn, and that be should be iWQU
gio |n Chelmsfbrd 00 the inorrpff. V
went i«ith the other cuuna^l iha Pf^M
bein^ Wedaesdtiy : and this, Id| fk
wbuk o( that inatier.
My brd, this busings dept ^ti
aAer the coroner'i»tnque«t bmn
imagined myself to be «^
was oevei- surred tUl UHf jfl
for the Murder of Mrs. Sarah Stout
tfionft, had laid their heads to-
; leave to let yoar lordship a little
*r, to shew you how this prosecu-
16 managed with so much noise
as it hato been. I can make it
le of the greatest of the Quakers,
name, has Tery much, and imli-
cemed himself in this matter : it
iicy the reputation of their sect is
t : for they think it a wonderful
absolutely impossible (however
nay be liable to such resolutions,)
was bv her education entitled to
ithin ner,' should run headlong
r, as if she had been possessed
of this they think their sect is to
)ngh by spilling the blood of four
The other sort of people that
le Quakers in this prosecution, I
now I come to obser>'e what the
that have been produced against
them I have nothing to object to,
re extreme indigent and uoor, and
)ed by the prosecutor ; tnose that
thin|^ as to me ; others, who live
nd give their opinions of the man-
th, are possessed with much pre-
t me, upon feuds that have risen
s of my father and brother in this
se, with the Quakers, have wholly
I matter for several ends ; the
naintain the reputation of their
i others, to destroy, or break at
«st of my family m this place :
ifectual these designs may have
nade a great noise in the world
[, I am satisfied now that 1 am in
ice, where no person's reputation,
life, will be sacriGced to the po-
of a party without proof; and
five talcen up so much of your
e true rise of this prosecution be-
:lear light.
i to my coming to this town on
IS the first day of the assizes, and
-eason that brought me hither:
out of town, I confess, I had a
a lodging at this gentlewoman *s
been invited by letter so to do ;
D why I did not was . this : my
I he went the circuit, always fa-
h the offer of a part of his lodg*
; of ^ood husbandry 1 always ac-
ist circuit was in parliament time,
ler being in the Money-chair,
•nd the circuit as he used to do ;
ood lodgings, I think one of the
m, where 1 used to be with him ;
'tiys kept for him, unless notice
se contrary. The Friday before
to the assizes, I happened to be
ith my brother and another geu-
en I shewed them the letter by
amestly invited down to lie at the
Ipentlewoman during the assizes
9tb of March last) ; and design-
with the invitation, I thereupon
A.D- 1699. [1150
deahred my brother to write to Mr. Barefoot^
our landlord, and get him, if he could, to dis*.
pose of the lodgings ; for, said 1, if he keeps-
them they mast be paid fbr, and theii I cannot
well avoid lying tfiere : my brother did say he'
would write, if he could think on it ; and tliiis,
if Mr. Barefoot disposed of the lod^ngs, I own*
I intended to lie al the deceased's nouse ; but
if not, I looked on myself obliged to lie at Mr.
Barefoot's. Accordingly I shall prove, as sooz\
as ever I came to this town, in the morning of
the first day of the assizes, 1 wont directly t(i'
Mr. Barcfoot's (the maid and all agree in this),,
and the reason was, I had not seen my brother
after he said he would write, before 1 went out
of Louflon ; and therefore it was proper fbr me
to go first to Mr. Barcfoot's, to know whether
my brother had tvrote to him, and whether be'
had disposed of his lodgings or not As soon
as I came to Mr. Bareibot's, there was one if r^
Taylor, of this town, came to me, and [ in his'
hearing asked Mr. Barefoot, his wife, and maid-
servant, one afler another, if they had received'
a letter from my brother to unbespcak the
lodgings ; they told me no^ that the room was
kept for us ; and I think they had made a fire,
and that the stiects were airing. I was a little
coucernetl he had not writ ; but Mug satined
that no letter had been received, I said imme-.
diately, as I shall prove by several witnesses,'
If itfaie so, I must stay with you, 1 will take up^
my lodging here : Thereupon I aliglited, tna
sent for my ba;; from the coffee-house, and
lodged all my things at Barefoot's, and thus 1
took up my lodging there as usual. X had no
sooner done this, but Sarah Walker came to me
from her mistress to invite me to dinner, and
accordingly I went and dined there ; and wbeu
I went away, it may be true, that being asked^
I said I would come again at night ; but that I
said I would lie there, I do positively deny ;
and knowing I could not lie there, it is unlikely
I should say so. My lord, at night I did come
again, and |>aid her some money tliat I received
m>m Mr. Loftus, who is the mortgager, for in*
terest of the 200/. 1 before mentioned (it was
0/. odd money, in guineas and half-gnineas) :
1 writ a receipt, but she declined the higning of
it, pressing me to stay there that night ; which
I refused, as engaged to lie at Mr. Barcfoot's,
and took my leave of her ; and that very money
which I paid her was found in her [jocLet, as I
have heard, af)er she was dmwne<l.
Now, my lord, the reason that J went to her
house at night was, first, as 1 &nid, to pay her
the interest money ; in the next pinre, it was
but fitting, when 1 found myself under a neces-
sity of disappointing her, and lying at iSare>
foot's, to go to excuse my not lying there,
which I had not an opportunity at dinner -time
to do. My lord, 1 ufien my defence shortlj ,
referring the narticulars to the witnesses them-
selves, in calling those who will fully refub?
the suppositions and inferences made by tlie
prosecutor, whom first, my luid, 1 idiull begin
with, to shew there is no evidence of any mur-
der at all committed ; and this, I saya^ia^
1151]
11 WILLIAM IIL Trial qf Spencer CiMper and otherst [lltt
ought to be indisputably made manifest and
proved, before any man can be so moch as sus-
pected for it.
Baron HatselL Do not flourish too much,
Mr. Cowper; if you have opened all your evi-
dence, call your witnesses, and when they have
«nded, then make your observations.
Mr. Cowper. l^hen, my lord, [ will take up
no DHire of your time in 0|>ening; this matter.
Call Robert Dew. (Who appeared.) When
Mrs. Sarah Stout drowned herself, was not you
a parish officer ?
Dew. I was. I was next house to the Coach
and Horses ; and about six o'clock came a little
boy (Thomas Parker's boy), and said there was
• woman fallen into the river. I considered it
was not my business, but the coroner's, and I
sent the Imy to the coroner, to acquaint him
with it, and the coroner sent word by the boy,
and desired she roi^^t be taken nut ; so I went
to the river and saw her taken out : she lay in
the river (as near as I could oniess) half a foot
in the water; she was covered with water ; she
bad a striped petticoat on, but nothing could be
seen of it above water. I heaved her up, and
aeveral sticks were underneath her, and flags ;
fod when they took her out, she frothed at the
nose and mouth.
^r.Cimper. How was she? Was she driven
between the stakes ?
Dew. She lay on the right side, her head
leaning rather downwards ; and as they pulled
her up, I cried, * Hold, hold, hold, you hurt
* her arm ;' and so they kneeled down and took
her arm from tlie stakes.
Mr. Cim-per. Did vou see any spot upon her
arm? — Dezv. Yes, Sir.
Mr. Cowper, What sort of s|»ot was it ?
Dew. It was reddish : 1 believe the stakes
did it ; for her arm hit upon the stake where
she lay.
Mr. Cou'per. Pray, liow do these stakes
stand about the brid;;e of tlie luill ?
Dtir. 1 suppose they stand about a loot
asunder ; they stand slanting, leaning down the
stream a little.
Mr. Cozi>per. Could you discern her feet ?
Dew. No, nothing like it, nor the striped
petticoat she had on.
^Xf.Covper. Mic^ht not her knees and leg>i
be upon the grouiul, for what you could see ?
Dtw. Truly, if 1 were put upon my oath,
whether they were so, or not, [ durst not swear
it ; sometimes tlie wuter there is four feet,
sometimes three and a half ; i Mieve her feet
were very near the bottom.
Mr. Coupcr. Are not the stakes nailed with
their head ajrainst the bridi^e ?
Diw. They are nailed to the side of the
bridge.
Mr. Couper. Pray, describe the manner in
which thcv took her up.
Dew. 'f hey stooped do»vu, and took lier up.
Mr. Couper. I>id they take her up at once.*
Dew. They hati two heavings, or more.
Mr. Cowper. What was the reason they did
not take her up at once ?
Dta. Because I cried out, 'Thijkmthv
am.'
Mr. Cowper. Wassbenot withiDtbe^ska?
Dew, Nuy this shoohler kept her out.
Mr. Camper. When you oomptaioed tbev
hurt her arm, what answer dki they make yea?
Dew. They stooped down ami look her am
out from between the stakes ; they could bM
have got her out else.
Mr. Cowper. Afler she was taken out, dii
you observe anv froth or foam come from kr
mouth or noser
Dew. There was a white froth came frM
her, and as they wiped it away, it was on agiii
presently.
Mr. Cowper. What was the appearueeif
her face and upper parts at that time?
Dew. She was so much dis6ffured, 1 1^
lieve that scarce any of her neigbboun kaet
her, the slime of the water beinff upon bir.
Mr. Cowper. Did yon aee her maid 8mb
Walker at that time?— Dew. No.
Baron Hatteil. Mr. Gowpery do yoa vHai
to spend so much lime wiu eveiy witacs?
I do not see to what purpoae many of thv
questions are asked.
Mr. Cowper. I have done widi bin s id
Young.
Baron Hatseli. Mr. Cowper, I woaU Ml
have you straiten yourselt, but oaly Mk
those questwns that are pertinent.
Mr. Cowper. Pray, give an accoonlcf wU
you know of the matter.
Young. On Tuesday morning, betwceiS
and G oVIock, last assizes
Mr. Cowper. What officer was yon?
YuunfT. I was constable.
Mr. Cifwper. Was you employed bj tk
coroner ?
Youiif;. Not by him in person. Betwen
five and 6 o'clock some of the men that cut
into ray yard to work, told me a womso «•
drownetl at the mill ; I staid a little and wttt
down to see, and when 1 came there 1 saw a
woniau, OS they had told me, and I saw put
of her coat lie on the top of the water to k
seen, and 1 looked strictly and nicely willui^
the bridge, and saw the face of a woman, iiJ
lier left arm was on the outside the sukfli
which I believe kept her from {Toini; tbivo^;
so I looked upon her very wishfully, and**
goint^ back again ; and as I came back I ami
witli R. Dew and two of my neighlNMBS, aW
they asked me to go back wTth them, soil iai^
they \vere going to take her up; and bdB|
constable, 1 told them I thought it was art
proper to do it, and they said they had onfaj
for it ; so f being constable went back to
them, and when I came there 1 found her ia
the same posture as before ; we viewed fc"
very wishfully ; her coat that was drives i*
the stakes was seen, but none of her other enj
«»r her legs ; and after we had looked a i*
while upon her, we spake to Dell and Uk**
take her up, and one of ihem wok holdoffc*
coat till he brought her above water; aai*
her arm drew up, 1 saw a Uack phe^ ■*
.fir the Murder of Mrs. Sarah Siout.
tiileiray, that be could not take her up
liad let her down again, and so they
her out aideway ; for the stakes were
together that sue could not lie upon her
" upon her back ; and when they had
Br up, they laid her down ujran a green
ind atW slie was laid down, a ffrcat
' of froth (like the froth of new beer)
out of her nostrils.
I HatuU. Uow much do . you call a
uiotity ?
g. It rose up in bladders, and run down
ides of her face, and so rose again ; and
ler look like a gentlewoman^ we de-
e Ulse to search her pockets, to see if
'ere any letters, that we might know
t was ; 80 the woman did, and I believe
u twenty or more of ua tliat knew her
ell when she was ali?e, and not one
ew her then ; and the woman searched
lets, and took out six guineas, ten ahil-
(, three pence halfpenny, and some
ings ; and aAer that 1 desired some of
fbbours to go with me and tell the mo-
3r when it came to be known who she
(new we must n?e an account on it,
id it upon a block and told it, and they,
p in a hauflkerchief, and I said I woukl
i money, and they should seal it up to
any question about it ; and during all
le of discourse, and sealing up the mo-
froth still worked out of her 'mouth.
meper. Have you measured the depth
ater ? What depth is it there d>
^. I measured the w ater this morning,
as so high that it ran over the floodgate,
height of it was about ibur loot two
but sometimes it is pent up to a
height than it is to day.
Zowper, Was it higher to day than
e body was found ?
(. To I he best of my remembrance, it
ligh to day as it was theu.
2owper. Waa any part of the body
iter?
If. No, nor nothing like the body could
owper. Could you see where her legs
^. No, nor nothing but her upper
hich were driven against the stakes.
(Mcper, Pray give an account how long
tliere, and when she was conveyed
f. I stayed a quarter of an hour, and
rest and scaled up the money at my
■e, so that I did not see her removed.
met Was any body there besides
at this time?
^ Ye9 ; twenty people at the least.
pjiet. Now herb is ten of them that hare
at the body was above the surface of
r.
HaUeli No, her cloaths, they say,
t the body was something under the
cwper. Now I will troubia your lord-
. XIII.
.A.p.lG99. [1154
ship no more with that fact, but I will give you
an accouiit of the coroner's inquest, how oili-
gent they were in their proceedings, ami pro-
duce a copy of the inquisition itself^ that ah#
was found to have drowned herself.
Baron Hatsell, Mr. Cow per, that is no evi-
dence, Jf it be produced in order to contradict
what these witnesses have said, thai have been
examined for the king ; but if yon will pruve«
that they have sworn otherwise beCorc* the co-
roner than tliey now do, then youjuy some-
thing, otherwise the coroner's inquest signifies
nothing as to the jiresent question.
Mr. Cowper, Uall Thomas Wall. I am
loth to be tcoublcsome ; hut if you please to
favour me, I desire to know of them, whether
they do admit there was an inquisition, and
that she was found ' non compos mentis,' and
did kill herself.
Air. Jone$. We do admit it.
Juryman, We desire it may be read.
Baron Hatull, Why, will not you beliere
what they agree to on hoth sides ?
Juryman. If tlieydo agree so, I am satis-
fied.
Mr. Cowper. Thomas Wall, pray, do yoa
give an acconni of what you kuow of Airs.
toot's being taken up.
Wall. My lord, I was one of the jury, that
viewed her at the place where she was laid
when she was taken up, and there was no
marks upon her, 6nly a little mark about her
ear, and something near her collar bone ; that
was all I see upon her.
Mr. Cowper, Do you know any thing of
any surgeons being employed to view those
marks ?
WalL My lord, we had several persona
that came before us that we examined ; we
had a dispute concerning these marks what
might effect them, and we desired Mr. Dima-
dale and Mr. Camlin to see them, that we might
be the better satisfied ; and they both went
down and viewed the body alter it was brought
down to Mrs. Stout's ; and they came back,
both of them, and Mr. John Dimsdale told us,
that these marks were no more than were usual
in such cases, and it was only the stagnation of
blooil.
Mr. Cowper. Was it the old man or the
young man ?
WalL It was the young man.
BIr. Cowper. Usual did he say ?
Wall, i can tell the very words, I have them
writ down.
Mr. Cowper, Pray do so, for he has denied it
here.
WalL (Looks on his paper.) Here it is. Mr.
Dimsdale and Mr. Camlin came to us, and'Mr.
Diui8«tale spake, and said these marks are
usual, or might be u&ual ; or if they were
marks, it was no more than was usual in such
cases ; and that it was the stagualioo of
blood.
Mr. Cowper. Now you have your notes in
your hand, pray, what did ^<arnh W^alker say
to you as to the time 1 went fcem Mrs. MoiU'b f
4fi
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157J
Jgr the Murdir of Mrs. Sarah Stout. A. D. 1699. [11S8
t the lue of any fpices, which b thought
a grcftt nieaiure to oe brought about by the
weoMs of the coffin, and himiering of the air
im ooiDing into the body.
Mr. Ctmper. It it possible, in your judg-
nt, for any watef to pan into the thorax ?
Dr. Sloani. I believe it is hardly possible
Kl any should go from the windpipe into the
f ity ef the thorax, without great Tioleoce and
loe ; for there is a membrane that co?ers the
Inde of the lungs, that will hinder the water
im passing through it into any part without*
m.
Mr. Camper, Now, do you think it possible
find water in a drowned hody after six weeks
■e?
Dr. Sloane. I am apt to think if there was
ly quantity in the lungs, the sponginess of
M part would suck up some part of it. As to
li stomachy I have not known it tried ; but it
like, if there was a great fermentation, a great
eal of it would rise up in vapours or steams,
adgooflftliatwav.
Mr. Cowper. Dr. Garth, 1 cannot tell whe-
bir you were in court when the surgeons who
It witnesaes for the king gave their evidence.
Br. Garth. Yes, 1 was.
llr. Ciwper, Then I desire yon. Sir, to give
mr opinion as to those particulars.
Dr. Garlk. I observetl in this trial, the first
Dan called for the king tliat s|ioke to this
* waa Mr. Coats worth : He xaith he was
M for 10 open her, upon an aspersi*^ of her
■ine laiil to be with child. 1 agree with him
■ vhat he speaks to that point, but must differ
lib bim whijre he infers she was murUereil,
Muise he found no great quantity of water in
Mr, u also her head extremely mortified, but
Ht ber lungs (lungs and bowels I think were
1 promiscuously .) Now, my lord, as to the
''T of |Hitrifaction, I think it is not much
■Mrial whether thei-e be any water or no in
m cavities of the body ; if water would hasten
■nfoctioo, it would do it as well in the lungs
laibenvise; there is always some water in
!• lympbeitucts there, the breaking of which
^ be one occasion of catarrhs. As to what
KtaB to the putrifaction of the liead, it may
topen from a stoppage of the n'flucnt blood,
bicb is staid there in a great quantity,
t^ugh the suffocation in the water, or from
B veamess of the brain, which is observed
tab to mortify first.
Tke next was Mr. Dinuulale (I would s^ienk
them all in onler if my memory would per-
^ ; I think be waa ot the same opinion as
r. CoaUwurth ; he laiil the stress of his sus-
sioa upon the mortification of the head, which
Ihiak isoot at all material, no more than what
^ inter fmm her floating ; it being impos-
m the body should have floated, unless it had
■led, or had been entangled an>ong the Makes,
i^attSB all dead bodies (I l>elieve) fall to the
iMB, anicss tliey be prevented by some
^■^iMdinary tumour. My lord we have uot
py fUloaophv, but experiments for this,
■iwtinwii Jl ■gwa aha wu fonod upoD ber
side, which to suppose her to float in this
posture, is aa hard to be conceived, as to
imagine a shilling should fall down and real
upon ita edge rather than its broad side ; or that
a deal boadi should rather float edgeways than
otherwise ; therefore it is plain she was en-
tangled, or else the posture had been otherwise.:
As to the quantity of water, I do not think it
necessary it shoukl be very great. I must owd*
the water will force itself into all cavities where
there is no resistance. I believe when ahe
threw herself in, sbe might not struggle to save
herself, and by oonaequence not sup up much
water. Now there is no direct passage into the
stomach but by the gullet, which is contracted
or pursed up by a muscle in nature of a sphinx
ter : for if this passage waa always open Uke
that of the wind- pipe, the weight of the air
would force itself mto the stomach, and we
should be sensible of the greatest inoonve*
niences. I doubt not, but that some water fell
into lier lungs, because the weight of it would
force itself down ; but if we eonsiiler the wind*
pipe with its ramifications as one cylinder,
the calculation of ita contents will not amonni
to above twenty-three or twenty four aoUd
inches of water, which is not a pint, and which
might imperceptibly work and fall out. I re-«
member I offered a wager at Garraway 's cofice-t
house to a gentleman here in court.
Baron HatselL Fray, doctor, tell us yooc
opinion as to what the seaman aaid, and alao at
to what Dr. Sloane said, whether water in the
body will putrifV it?
Dr. Garth. I say not ; for in some placef
they keep flesh -meat from corrupting by pre-
serving it in water, and it is well known it will
putrily le«s so, than when expose<l to air.
Baron HutuU. But what do you say aa te
the sinking of dead bodies in water?
Dr. Garth, If a strangled body be throws
into the water, the lungs being filled with air^
and a cord itiX about the ne<:k, it is possible it
may float because of the included air, as e
bladder would; but here is neither conl, noe
any mark of it, nor nothing but a common
stagnation.
Baron Uatsell. But you do not observe my
qnetition ; the seaman said, that those thai
die at sea, and are thrown overboard, if yoi|
do not tye a u eight to them, tliey nili not sink
what say you to that ?
Dr. Garth, My lord, no doubt in this they
are mistaken. The seamen are a superstitious
people, they fancy that whistling ai sea will
occasion u tempest : 1 must coutesH I never
saw any body thrown over- board, but 1 have
tried some ex|>eriments on other dead animals*
and they will certainly sink ; we have uied
this since we came hither. Now, my lord, [
iliiiik, we have reason to suspect the seaman's
evidence ; for he saith, that threescore |K>und
of iron is allowed lo sink the dead bodiefi
whereas six or seven pounds wouUI do as well.
I cannot think the cHiuimissioners of the navy
guilty of so ill husbandry ; but the liesign of
tying wfighu tp .tbair bouiea» if to prevent thtir
1 159] 1 1 WILLIAM in. Trial of Spencer Omper and athen^ [IIGO
ilpatingf at all, which otherwise would happen
in some few days: therefore what I say is this,
that if these (rent'caiGii had tbimd a cord, or
the print of it, about the ueck of this uiifortu-
mHe (Dfentlewoman, or any wound that had oc-
casitiiifd her death, they 'might then ha?e said
something^.
Mr. Coapper. Do you apprehend that any
quantity ot water can enter into the cavity of
uie thorax?
Dr. Garth, It is im|tossih!e there should till
the lun^s be quite rotten ; there is no way but
by the hing)*, which are invested with so strong
a membrane, that we cannot force breatli with
our blow- pipes through it ; and there is a great
providence in such a texture ; for if there were
any large pores in the membrane, the air would
INI88 through it into the cavity of the thorax,
and prevent the dilatation of the lungs, and by
coo8e<juenc6 there would be an end «)f
hreathing.
Mr. Covper. Dr. Morley, pray, be pleased to
give your opinion of theite matters.
Dr. Alorley. Those which seem to be ques-
tions of greatest moment, are whether then*
ivas a necessity for this body (if drowned) to
liave a great quautity of water in it, and whe-
ther bodies thrown tlead into the water float.
To the first 1 answer |>05itivcly, that there is no
absolute necessity that she sho hi have a great
quantity of water in her ; and 1 think the ques-
tion Mr. C.'uwuer askeil Dr. Coatsw«irth, whe-
ther he had like to have been drowneil by acci-
dent or desit;n, suits with mv assertion'; for if
thisgenlleiiomttii diil %'uhiiitaril\ ilrowii lierst It'.
she then, in all likelihoiMl, threw iienielfii:tr> tlso
water, with a reM^Uitiitn of kei'piiii,' her [)rt:tili
for asipeedy siitf(>i*ation ; niid Mk-d if upon tite |
because by putrifaction they rarify, by mic-
tion they ' now lighter, which bru^'' iWb to
the top of the water.
Mr. Coaper, 1 desire to know if any miif
skill in phidenoe would give hisopinioB?
Baron HatselL This is not a proper qootiDa.
Mr. Camper. Then I will ask it thus: dojos
think, doctor, it is to be known six weeks ste,
if a person was drowned ?
Dt. Mnrley. I think it is morally imposAk.
Mr. Cowptr. Can tliere be aoy water io tki
thorax?
Dr. Morley. By an impostbume or som
violence to liature, possibly ; but I tbiak h
otherwise.
Mr. Coaper. Dr. Woollaston, what b Tor
opinion, if a person be drowned, whether iteH
be discovered six wef>ksafler?
Dr. IVoofiaston. My lord, I think it is iiiip»
nWAe to be known; fur if there had ben isNr
so much water in the body at first, it eouklMt
lie there so lon^Ti but mujt of necessity Invt
forced its way out. We see in iiersons tbstii
of dropsies, that the water will work itsdffri
(and sometimes burst the body) befbie it if
buried ; and I am suit, if it do so in dropaa,'
where there are no visible passages for il M|a
out at, it must do so much more iu drovitl
persons, where the water lies only io tbefl^
mach and guts, and has nothing to hiaJeriH
working out when it ferments, as it alwsji
doih.
Mr. Cotrper. Have you ever made aoy ci-
pcriiiiriits in that nature, doctor ?
j Dr. Woftf'asron. 1 have made no exner-
I nieiits, bull have seen a very particuLtr ic-
j siancf.
Haron llut^tll That is very wei! ; praj lit
Arst endeavours forrfspiratiou(vvlucli nauira Iv ! us hear it, doctor.
must be) she drew inio In i- lunj:s tvvoounrts oj' I Dr. Ho 'Uaston. My lord, about il.rre y^rt
water, it was thesauit- iliiii«;'lOfli-owniniroriier, since. I ^aw two men tli.U weiednniurdtiif^
as if there had been two tiiu. W e see the s.ime . tin same lN>at. They were takvn op the next
thni^ done b\ divers iu order to save themscli « s, ■ d,i \ alVr ilu'v \vn e drow rud : one uf 'h-iu w«
at» it happeTied to this uutbrtunate ;fcntie%«o- ! iudt-cd prtMli'^iousty swtdli'H, so much that bii
miin, iu lit»r diViiTii of destroyiinjr herself: if a ! cluailis woretiursi in several plac^es «t hissidfi
diver, hct'ore he «!omes to the suiTuce ot' wafer, | and iiruis. and his stockni^rs in these:iui>: Im
should so far mistake his power of hoIdin«4 his ! bauds auil fiiiirrrs wcn^ strangel\ e\tec>kd;
breath, that he should \w lorred to eiiileiivour
respiration, the little wattr he drew into iii<
luni^ by his attempt to i empire, may druwn
him. VVe last nitrht dntwned a do^r, and atier-
wanis disseettd iiim. and fo'^iul not a spooutui
of water iu his stoinueh, and, I l)elie>e, ahoiii
two uunoes in his lungs ; while we v*ere diiinjr
this, we drovvneil auotluT, aud ho Iny at i!ie
iNiitoni atid dill not Huat : no more would hr
have \\o\w, if ho had been hangrd before thrnwn
ioiu tlip water: we took liifn up, and ojKuin:;
him, wo f uud much about tl e >an'.e tjoantity
of v«ater III his liincs. ami Liile «.r ivme mi his '
•toiuaeti. Theyl«n:Ut oih\l.ii ;M-i<oand iiiouih. '
lv*oauM? the vva er couLOi; into the hiile li!ad- .
d-'fs of the luM-^s, aud x\\*tc nueti:i;»' wiih ar.
n co:umot!i.i:i ar>is<.* l»e:v\ieu the water and air, ■
which caused the fn»ih. To the M'tnuul que>- .
tioo, I thi. k iibodit^ new kisled ^wi^l. it is by i
act ideot \ tvr ihc reason that bodtc« sw im, is | is,
his face wan alniosl all over black ; but ilil
oiher was i.ot in the least swelKd in riiiy |Urt,
nor diM:(d:iiind ; he was as lank. I biliru*. a
ever he wa^ in hislitie lime; anil there was Dot
the leswi ^i:ri! of any water in him, evcejiti'tf
\*atci\ t'«.«!i ni his luouth and uoMiils. My
iitrd. i'h> I saw myself, aud took ver\ partial-
lar notireol ii.
'Mr. .^''.vv Did yoii •ipp these bodies laUi
out ot tin- *t. i«r V'orselt, tlocior ?
I>r. l!i-'/'u*r- ?i' No. Sir.
.^Ir. J.-Hii. How loiiu had they been tahi
out wIm ». v««ii saw theru .■*
hr. ll'uPi t.'s.'.in 1 enquired. And to tbcW
M' luv ireiimry. it was th '.tsaine day.
Da:i-:i iiulill. Hut wliat do you think, ^
tor, <<f a |w ixuTs benigdruwnetl witboutiib^t
ina \ ":i!rr?
l>r. M'^Mation. My hMfil, what istskM*
I bcbere, chiefly at the turface of the ^^t <
sil
Jar the Murder of Mrs. Sarah Stmt.
A. u. 1699.
[1163
eo they open their moakhi for breath, ind
iratec that rushes in thej^ are forced to drink
m, to keep it from the lung^ : but when the
id itouite underwater, 1 don't think it it
aible for any quantity to get down into the
nach ; because it }mng oreath they open
, the Fery first water they take in wonid lOf
■essity fill the lungs ; and, when (he breath
loppetl, I don't see how they can swallow.
Hr. Cowper, Dr. Gelstrop, what is your
nion cif this matter ?
Dr. Gelstrop, I don't think they can make
fjndj^ent of persons being drowned after
weeks time.
Mr. Covper, Can any water get into the
nraz?
Dr. Gelitrop. No, not unless the Inngs be
irified.
Mr. CoKptr. Is a great quantity of water
sessary to persons dying by drowning ?
Dr. Ge/f/ro;/. No; only so much as may
ider respiration,
Hr. Covper, Now, my lord, I would call
r. William Cowper ; and because of his name,
BBSt acquaint your lordship, that he is not at
lelated to me, though 1 should be proud to
IB him if he were so : he is a man of groat
miBg,aDd, I believe, most people admit him
t best anatomist in £umpe. Mr. Cowfier,
Swill you gire your opinion of thiv matter,
r. W. Cowper. Ny lord, I hope what I
all say will not be suspected because f am of
Bsame name, for this gentleman is an utter
Mfrrr to me.
Baron HatMelL Pray, Mr. Cowper, without
ly apology, give your opinion concerning
Mons drowned, and how it is with them in
fir inward parts.
Nr. W. Cowper, I will gi?e you a short ac-
Nmt, I ho|»e to your fsaliidaction titn, my lunl.
viH not only speak tr(»m reason, hut give yon
IB testimony of the exporiments 1 have made
psp this occasion. Riy lord, 1 heard it made
■igfaty argument, that this |>erson ha>l no
Her that seemed to tlow ont ; but the wit-
BKS agree that there was a froth. Now, my
id, it was not reasonable to expect any thing
> froth. My lord, had she l>een thrown into
leasier, and' made her utmost efforts, which
IS would then have done to have saved her-
tf, and been often hiinyed up to the top of the
ucr, no iliHibt but she would have swallowed
eonsiderabte quantity of water before she had
Bra dniwoeil ; and it may be expected to flow
«B her, it her head had been inclined down-
irds.
This is a troth that no man can deny, who is
Dqusiated uith any thing of this nature, that
m tlie head of an animal is under water, the
nt time it is obliged to inspire (or draw in air)
^ water will necexnrily flow into its Inngs,
*t}ie air would do if it were out of the water ;
1^ quantity of water (if the dimensions of
■windpipe, and its branches in the lunga, he
Hindered) will not amount to three inehes
taa, which is about three ounces of water,
^ii • gitatcr quantily of wtMr in the wind-
Cipe necessary to choak any person, if we do
ut reflect what an ebullition is caused by its
meeting with the air which remained in the
Inngs, whereby a small quantity of water is
converted into froth, and the channel of the
windpipe, and those of the bronchia, are filled
with It, insomuch that no air can enter the lungs
for the office of reeiii ration. Alter a suflbofitioQ
is thus commencetl (I am apt to think) all re-
gular animal actions are perverted, and parti-
culariy that of swallowing ^or deglutition) ; and
what water flows into the lungs at the instant,
or after this suflbcation, is from its own weight,
which is more or less as the body is far; her
lyider, or nearer the surface of the water. My
loni, I do not speak this by way of conjecture
or hvpothesis, but I have made experiments,
which have suggested what 1 here offer. I
shall by the bye tell you how fallacious the first
experiment was, witen I proposed to satisfy
myself, whether a dead body would float in
water? it hapuem-d that a spaniel, that had a
great deal of louif hair, ^ns hanged for this
pur|)08e, which I found to swim on the snrliice
of the \»ater ; but tvhen I considere^l that his
hair micfht buoy him up, 1 caused another dog,
which had shorter and less hair, to be hanged
and put into the water, uhirh ^at;i'eeable to
what 1 had al\%ays conceive<l ol a human body)
sunk directly to 'the bottom, lu order to sa*
tisfy mysell what quantity of water was neces-
sary to enter the Inidy ul an annual, and cans«
a sulfocation in water, I caused three doga,
uheii alive, to be suddenly pluu>;ed under naier
till they wen- stitled; one was beture I left
London ; the other t\«o 1 made the exjierimcnt
on last night, in the pre-jence of D= . .Sliwne and
Dr. Morley, and we could not coinput« iher«
was more than three ounces ol' water in their
lungs, and none that we could jierceiic in their
stomachs.
Dead bodies necessarily sink in water, if no
distention of their parts * buoy them up ; this
disientiiHi sometimes happens before tkalh, at
other times soon alter, and in liodie< that are
drowned after they lie under water : This en-
largement of them* is cansetl b\ a rarefaction of
the humours within the cavities, and the iMxIies
neressarilv rise to the surface of the water.
Your loi-fiKhip may infer this from what the
seaman told you ; and the ercat weight they
use 10 fjsten to their boilie^ that die of diseases,
was not of such use to sink them, as it was to
pri*veiit their filiating aftertvartls ; so that the
weight was necessary for thiiscthat were killed,
as well as those that died of diseasi s.
J t is so commonly known, that the contents
in the stomach of a dcatl l>ody arc discharged
by the mouth and nostrils, so soini »s it liegins
to ferment, and the lielly l>ecumes distended,
that it is no wonder that water, if the greatest
quantity of that hud been in the Ktoniurh, or
any thing else that was fluid, must be forced
from them six weeks after death.
My lord, I cannot lint think it ridiculous to
expect water in the cavity of the thorax ; it it
■aw « conceit m nothing in nature can nucount
«m n.iiiHMK m. ,. jfef4rfnanw> nnnKti tmnji,. xm
for, tioieta Uie Lud^a bad iiifer«f] ^me apostu-
amtidii, m tli^ like, wherc^b^ the w&ler inu)-
pttin ibtHr outward mt^tubiJiyi-K mi& Ihat cavity.
iHf^ Cimpfr. VViili your Jf>iilsliij»** (%vi>ur, 1
SOW ibink it a proper time tu iimke tbis ob-
■erv^iion. Tbo witi^euieK Uiat bare givea evi-
dcnC4^ fur ih^ king do say. ilitj believe sSie was
QOt drowned | but ihey bate uut (pret^xuled lo
^P^ bow fibt; crifi) otberwiiK^.
IlJarriiT HtilBrU. Tiuit iirf vcrj true.
' Mr, Vim per . Dr. Critll^ I tii'StitK yi>ii mill be
pleaned lo gtve an uuirimia i»r ibiH iniiiu^r.
Df. CrtiL My )or<l> I bave lilile in &ay in
tbi* afltiir^ tb(^ (ib^fiicmnii ttiat tia^e been exa-
nbed alieaUy hai^ii>i^ itiiide il out, tbal pi?riQQ«
wba are dravvut^iL may bave but little vt iiter lA
tboir bodiee; but Ibute taken if bat |»aiii!» I
«oubl, M]jiuj su nbtni >varniti^f atid I will IdJ
yna tbc optintin of sevejiil t;notni»iil aulborit.
My i>iA|i i^intikm [9^ tbat j% vory iftnalt (|U9itiltty
of water, itnt L'3fcr(^dtti(| tbrtrtf onticeM, is iin(b>
enmt Id di*<nvn any body ; and 1 kdtf ve Itial
ih9 rt*asoj^ €i( ib«^ Ku^bcatiMt, or of arty pefEou^s
Wmi^ htiOf^d tjiiiler water, is from ibf lutcrc^pu
iatf of tbt* i«iiv, tbnt tbf person ca^mut brrntlj^,
wjiWut wbicb be cannot live. Now, tuy Ifjrd,
I iiiti s^ivG yon tbi: apininn of ftevc^fal nocieai
aiilbor«t
BamiLi HuittlL Pmy, doctor, lell lis your own
obM^lvatuiri»i.
^ Dr. CV*^/* >ly loptl, it mu«t be readinir, a.s
^tU an a tnati^ J«« n ejcpe^iifni c-, that ia ill make
•DV oti« • ubyucian; tor wit bout tbr reading
oflKmkfl of tbi^t art, the art iUtlf cannot b« at-
tftinccl to ; beifcliks il^y bn'df [ boukblv con«
^iiip, tbat in aticb a difiicnjt case as tliit « we
ttilgbt t«» have a gtt- at d^lercnee for ihe rviwrU
aotj ofiiaiouA of te4i nc^d queu : Neitber do I see
iDy r&asoo wby 1 ^bouLd m>i qiviie the fatbet^ of
my |»rultiJ^iuii 11^ tbis ca&e, a& well asiyou ^^ntle-
men of tb« long rub*? iinole Cake upon Litik too
10 oibei-s ; But i sbttll uot (roubte the cmirt
loo^ ; 1 feball only iositit tipoti wbat Aiiihmse
parey refat%'w in Ua eliapter of Rinmacii&tioos
11^ wi^ chwf inrgtjbou to Fmnciji the ]>t, em-
ploy^ by bini lu luoea of bb sietfett and battles
frpiiiist till? map^Jtir Cbark& ibe Stb, and eoti*
i«quenlly inu«it ubcterve, tind eunld not be isrua.
rant of &nf b bk<^ CJbiujitti^ 111 nucb i^fn^at bo-
divHf of nwa. lie |ell« n«, tliut tUfi certain sign
Dt' a uian's bebi^ draword, i« an ap^je^rancc of
frntb abi>ol hi^ ntHSinU and nioiUb. Noii, my
lortl, 1 ibink (but every ooe ai' tbe kiog^ «ti*
d»riicf^ ub^rFvi^U it in tbe present case, and a
wuomn ttv% ore, I bat i^Iij® ^w tier pnr^i? at tbe
ftUtte; wbidi conlil not be, as be declares, if
bad btieu atrangUd« or nUiti wise
i brfiun;. At to tbe f}uaotii| uf wattr r« ■
^ ffli dr^iw n a perso{i, 1 believe tlkat tbree
t ar ]es»^ i» «^}ou(; b ; to W4t, fvii mucb asi
will till tbe irmdpi|)ej itod io £top the breath o)g
«i^thc j;iinioo dm^tsiug, I mu not iKkw to des-
oailt iiiioin luatttT at fact, t« brtbt^r «be tlroitned
kertelf; but inv drino^iinioR i«, ihut sbe was
^tttVMvd ; fi»i tUiMigh MUiicliJtw»« not Aluay^,
|l>«rc ii water looiMi ki llio boiUvi of agt b p^*
W9^ I yet wliirif ii il Ht hmii/& ibt kofit it
ia superfluouii a^ lo tbjs end; utd amkaiil
njion violent atni^glioi^,
Mr* CQtsptr. I desire Mr. HarKat mif l«
aaketl what obserraUoiia he batb mada c^oti^a^
ing llii^ matter n
Mr. Marrioi, My brd^ when 1 wtaaiiff-
geon in tbe lleet, 1 made it altt^ayi my uker<
vatiotif wbeu vfe tbr^w men overboant ikl
were killed, some of them nwaiu, aM
»iink ; and I remember {laiiicubriy, ^hvu Ik
SiHdwich was burnt, we «aw ahtiadartoy \^
olf from on board, stiil I bey nutik dirvciiv, lit
ill a tittle time I ob&erved m^rne «wini a^un.
Biirun Hati^iL W beo a dead bfidy 11 tluvi|
Ol'erbimrd^ does it aink or nwiiti Y
Mt^ Hutriot. 1 a^wt^yu obM^rved tint 11 M
t^mk: Wben we were ia tbt cbannel, uidji
lime of peace, we lu^ter tlirew any utcriiiiid
btU we put some weifi^ht to lb em ; but il m$
not to make tbcrtn Mit^k, boi for dei^mcy mk,
that they might not be ilrtten to tbor« wki
tboy bpirao 10 flyat*
Mr. CW/KT. I de»ii« Ujit Sir, Eiftlet Mf
be Ani^iid tu the tunie purp4ise*
Mr. Bartkt. 1 ba«e been lu »ev«nj of ii
kinif'ii &bipsi of war tlmt hare tt«ro diaiiWi^
turcc^J to I le by , i nsen (?ral en ifJfgaciJtDii '
the Frcnob and En^U^b, ami 1 fi«f «*r 1
Irodiesi tiiMiif either nt the mrti tb^t w^n
tu uiir&hip, or in the &hipii that bave bc^aiiir
ua; I ha^e not seen a bJdy upoo tbe mrlMiil
tbe water. ,
Baron HatulL Atiotlier ^viiness a^
after an eotftti^euieni be saw (beor* s«f imi
Mn Burtkt. I cAiiriot tell what be ui>,Bf
hinl ; but what I say 1 am readj Ma mik
uatb of.
Mr. Cowper. Dr. Camlio, will you |^<Mil|
give my lord and tlie jury an aeaxmt vtmlif •
you were e(U|doyed in tbe curooeT** iu^nciiil
iiew tbe ho<ly of IVlrs. Hlout atUr ikie nl
drowned, and tbe marks upon it, and Id! w§'
luriJ your opinioo of it ?
Mr. Clin in. I was &enc for by the ooMflK
and Oie ji^fy tbat sat upon the oody t4 Mib
8iirab bti^ut, the corooer beiug tbc^n at ittt pt^
tber^j^ house, and tlie e^irooer d^orrd Nb
Dnnidale and me lo ^ and lake notice af ill
ritarka upon ber neck^ and upon Ucf Ifsalt
We viexveil all atHjui, aod percriictl a m^
under hei' ielt ear i we looL^ lo a«c € Ai9
waii any contusion, and we perotsffdi
tnent uf blood upuo ber brt^&^i,
upon lier arm ; afid uhea we v^imm
Uiin^d^h made a re|toiT, 1 stood by faiBiti
Ume, timt d Wfi» only a eommun
Mr. Cimptn fray, Ht, CmaAia
spat above or Udow the r¥4kr buw T
Mr. Cuai/ta. Bcluw tli« csUftrliM
Mr. Ctw/^. VVbaldidMr.
say tbeii f^aceroiaf tliifi otatler ?
Mfi (^sfUTi, I under«ioii4 t^ai \m m
opiorun* that it was only m ctuttmua M|
ef youd^ tbat ha|»peiia iu ibc case «1 li
|ir«pJe. ^j
Baioo lf«i«dL J>i4 ha say « |«il
J^ the Murder 6fMn. Sarah Steut. A. D. 1699.
[1166
F anderitood him, that it was a stafif-
it did comiDonly happen to drowned
nd that was my opinion of it too.
fper. And that you agreed to be your
Mr. Camlin. Yea.
rper. Pray, Mr. €am1ni, was you
len the child that was drowned in the
e was taken up ?
nlin. Yes; it was taken up some
, near the same place, as I was told,
was more and greater signs of the
of hlood on the body of this child,
he body of Mrs. Stout; the child's
Jack and discolonred.
HatseiL Bow old was the child ?
m/in. Between ten and eleven, as
rould guess.
^atttti. Had Mrs. Stout any signs of
ngled when voa saw her first ?
tm/iR. Nothing at all, that I could
vper. My loni, I will give yon
trouble upon this head ; I shall
0 the next thing 1 opened, and shall
bstantially, that this gentlewoman
dy more to be suspected to have
herself than to be murdered by any
t it is almost a certainty that she was
of her own death. iVIr. Firmin I
▼in withal, if he be here. (Kut he
jlly ap|)earinpr.) Tlien, my lord, if
if 1 will desire Mr. Bowd in the mean
ve your lonlsliip an account of what
\ ot the melancholy of this gcntle-
7vd. Tt was much al)Out this time
jnth 1 had some business in London,
L'nt to roe, to know when 1 should go
I ; and 1 waited upon her before 1
she desired me to do some business
and when 1 retume<l, 1 acquainted
ivhat 1 had done ; and sitting together
I, 1 asked Iut, what is the matter
? Said 1, there is something more
lary ; you seem to l>e melancholy.
, you are come from London, and you
tt something or other: said 1, 1 he-
are in love. In love ! said she. Yes,
ipid, that little tM)y, hath struck you
be took me by the liand ; Truly, said
ni conftssit ; but I did think 1 should
guilty of such a folly : and I answer-
1 admire that should make you un-
the person be not of that fortune as
^ou may, if you love him, make him
lid yourself easy. That cannot be,
: the world shall not say I change
ion for a husband. And some time
lad been in London, having bought
ia good», she came to my shop and
>iue of roe for a gown, and at^erwards
to |Niy me for it ; and 1 asked her,
poulike it? have you made it upP
ihe, and 1 believe 1 shall never live to
mmer. Pray how long is it since P
It WM about Febmaiy or January
before her death. I asked her, why she did
not come to my honse oftener f She said, 8L#
had left off all company, and applieil herself to
reading ; and conipany was indifferent to lier.
Mr. Cowper. Mr. Firmin, will you please to
inform my lord and the jury what you know of
Mrs. Sarah Stout's being melancholy ?
Firmin. I did observe about three quarters
of a year ago, that she was melancholy; 1
cannot say that she acknowledged herself to be
so, but 1 have charged her with it.
Mr. Cowper, Did you belterc she was me-
lancholy when you charged her with it ?
Firwin. Yes, I did.
'Mr. Cowper. Mrs. Bendvy if yon please to
inform the court what you know of this gen-
tler oman's being melancholy.
Mrs Btndif. Sir, i can 'say she always
acknowledged herself extremely melancholy ;
and when 1 have asked her how she did, she
has said, pretty well in health, but so much
troubled with melancholy she could not tell
what to do with herself.
Mr. Cowper, Did she tell you any ' thing
particularly P
Mrs. Bendy. It disordered her so, she said,
that she had rather have chosen ' sickness than
so much disorder in her mind.
Mr. Omper, Have you any thing more to
recollect ?
Mrs. Bendy. Nothing but what I heard
from Mrs. Cowper.
Baron Haitell, How old was this gentle-
woman ?
Mrs. Bendy. About six- and -twenty.
Mr. Cowper, Call Mrs. Jane Low, Martha
Grub and Mrs. Cow|>er. Mrs. Low, pray do
you inform my lord and the jury what you
know concerning the melancholy of Mrs. Sarah
Stout, and when you first observed it P
Mrs. Low. it was a week before Whitsun-
tide was twelve-month.
Mr. Cowper. What did she say then ?
Mrs. Low. She oflen complained to roe,
that she was v<'ry melancholy and uneasy ; one
time particularly, as we were walking together
in the fields, 1 asked her the occasion of it ;
and bhe told me, that was a secret ; but she
said, she led a very melancholy lifie: said
i, 1 am apt to bt>lieve you are in (ove ; she did
not disown it, ami with a little more speaking
she owneil she was. J asked her wIm> tho
person was ; she said, that should be a secret,
but it would end her d>i3s: said 1, a woman of
your fortune may Cfiuimand any Ixnly : she
shook her head and said, no : |>erhaps, said f,
he may not be a Quaker, and you may be
afraid of disobliging your mother ; but if^^yuu
tell your mother that your life depends upon
it, your mother (:athrr than Ume her on!y chdd)
will consent to it : she said, no ; it was a |>cr'
Non she could not marry ; and shook her head,
and l(K)ked very melancho'.y.
Mr. Cowficr. When was this?
Mi's. Low, Tliis was the we<'k before Whit-
suntide ; and in Whitsnn-week she saw me
oAcOi and said, she wouU take her full swing
1 167] 1 1 WILLIAM IIL Trial of Spencer Cooper and oikert.
of melancholy whm her mother was away ;
aad she used to lie a-bed that week.
BIr. Cowper, Have you obaenred any melan-
•holv in her since ?
Mra. Low. Yes; at several times.
Mr. Cowper, Do yuii remember any thing
of an intermittini; t'erer?
Mrs. Loan. Yes ; she told me her melan>
choly had occasioned an intermitting fever;
and 1 mentioned Dr. Eales to her, and she
said her distem|ier lay in her mind, and not in
her boily, and slie would take nothing, and the
sooner it did kill her the better.
Mr. CoKper, Did the say any thing of her
disoosition to reading ?
Mrs. Low. 8lie said, nothing delighted her
■ow, neither reading nor aoy thing eke.
Mr. Cowper. My lonl, 8arah ^Valker, when
I ask«d her if she did not obseiTe the melan-
choly of her mistreto, and whether slie had not
said that her mistress had been melancholy ?
denied that she had said so: pray have you
beard her say any thing to that purpose?
Mrs. Low. I have often asked her how her
mistress did, and she wonldauswer, very much
indis{M>sed, but not otherwise.
Mr. Cowper. Mrs. Cowper, what do you
know of Mrs. Stout's melancholy ?
Mr. Cotrper. My lord, this is my brother*s
wife.
Mrs. Cosrpcr. About spring was twelve
month she came up to Londtin, and I believe it
was not less than once or twice a week I saw
her ; and I never bad an opportunity to be an
hour alone wiih her at any liiiie, but I per-
ceiveil sdinc thinp: of lier melancholy. 1 have
a.ske<l her the reason of it several limes, and
sometimes ^ho seeuied to dislike her proles:- ion,
being a Quaker ; and sometimes she uould
say, liiat she was uneasy at something that lay
upon her spiritkc, \%hieh site shonld never out-
live ; and that she .should never be wt-ll while
she was in this world. Stjmetimes I have en-
deavoured I'j persuade her out of it seriously,
and sometiiiics hy raillery, and have said, are
you sure you bhall l»e heller in nnotljer world ?
And jKirtieniarly 1 rfMieiisber 1 havesaiflto her, i
1 believt' \ou Ii'avf ."Mr. .".larsiiall in your head ; '
eillierh:r, e hnu, or do not trouble yoniNelC
about him ; make yoiriSiIt't asy eiilier one w ay
or ajiotfier ; and bhe hath said no, in an in-
different way, I eannot make myself ca-y :
Then I h:ive s^iid, marry him ; no, saith she, 1
cannot. Sonn-iimis with c(»m|»a»iy she would
be diverted, smm! had tVe(|ueniIy a wiiy of throw -
iu;^- her hiuuls, and shewed yrcat disturbance
and uiieasiiu'ss. Tliis time twelvemoulh, at .
the summer assizes, I was here six day^, and 1
1 saw l.ir e\iMy djiy ; and one time, amonac i
otluT di».voni5!»', she tsdJ iiif she had reeeivetl I
great di^iuibani.i' from ono Theophilu'«;, a ua- i
terman iMid a Uu.»ker, who ooming" down to '
old Mrs. Stout. t!i:U Wiis then latUf, she had
gatheri'J. :\\nt\]\ JO «.r :\i) |ieo|ilo toijrther to hear
him preaeh ; and silt- s:iid he direeteil his ihs- '
Cuutn.' to luT, ai.d exasperatt'd Iier at that \\\w, :
that she had thou<;iits of seeing nobody aunin, |
2 " I
and said, she took it heiooiisly iH to 1
and particalarly, that be toM her ihi
ther's fiUlioff oatwardly in the flesh
a warning tnat she did not fall inwm
such * canting stuflf,^ as she allied it
said, thatTbeophilus had so used h<
was ashamed to shew her bead. An
the same week, she bad a fever, an
slie was in great hopes it would end
and that she neglected herself in d
things that were necessary tor lier
hopes it would carry her off, and ofi
herself dead. Another time, whic
was the Isst time I saw her, it was at
lodgiuffs, and I sent for her to drin,
tea wiA us, and she came in a gre
melancholy : Said I, what is tlie n
are always iu this humour ? Saith «
not help it, I sliall never be othen%i
mty sister, for God*s sake keep such tb
ofyour head as you have had, do ni
more of throwing yourself out of
Saith she, I may tbank God that f
your face, otherwise I had done it, I
not promise I shall not do it.
Baron UatseU. \\ hat is yoor name
Mr. Cowper. It is my brother's
lord. 1 desire Mrs. Toller may give t
of what she knows as to her tieing mi
Mrs. Toiler, 5Iy lord, she was oi
me, and she looked very nielancliu
asked 1ier what was the matter.^ ain
something bad vexed her that day ; ai
her the cause of ir, and she stn|)p<
while, and then said, she wuuld dru^
oat of the way.
Duron H,itstll. flow Ions'' a:;o w. is
!Mrs. ToiUr. About three ijuuriers
ago.
John Siout. I desire to know wis
has always said so, or not told anotlic
Mrs. Toller. I told \»)U no stor\ ; i
I did not say so much to >ou, but I
talked somei hi nir of drowning:. I
with her when Mr. rowjiur's confer:
name has been mentioneil, and she
kept but little company ; that some
wtnl to Mrs. Low 's, and that she kep
civil moflest cou'.pany, and th.it .^Ir
was a ei\d modest t;entleman, and tti;
uothintf t(» say a>;raiu<n him.
31r. C'o-v/.eV. This is Mre. Eliz. T
lord.
Eliz. Toller. My lord, she came
sonie time atter (.Miristuias, and seen
eheeriul a*; she nseil to he ; said I, w
matter J* U'hr are you not so mcrr
used lo be ? Why do jou not c«iroe ol
me ? Saith she,* I do'not think lo gu
much iis I used to do, and said, it w<
mui.'h a rariiy to see her go abroad,
tiie sun >hine by niljht.
>Ir. Ct'Ufi'r. I\Ir>. (Jruh, what do^
ei)!,. J riling .>lrs. Stout's pulling out I
hir b: ilii!-. Mr .lolmStom*'..' Givea
of it. :nid wiiai$hcsaid upon that OOO
?.lrs. Oruk, I have a daughter tin
UOD]
Jar the Murder of Mrs. Sarah Stout.
A. D. 1699.
[1170
Ctterniey, and flbe aent me » letter, and I
myed An. Sarah Stout to read the letter ;
ana while the waa rcadiog it 1 cried ; saith she,
why do yon cry? aaid I, becauae my child
aa ao far off. Said ahe, if I life till winter is
ater, I will f(0 o? er aea aa iar aa 1 can far the
. Baron HattelL What waa the occasion of
far aayinif ao ?
• Hra. Grub. I waa waahin^ my master's
ilndy, Mra. Sarah Stout came m, and I had a
kiterfroro my daughter at Guernsey, and I
fnycd Mrs. Sarah Stout to read it, and she
itad my letter, and I cried, and she asked me,
why 1 cryed ? Said I, because my child is so
fcroff: &uth she, if I lire to winter, or till
vbter ia o?er, I will go over aea aa far as 1 can
Artheland.
* Mr. Cmoptr. Now, my lord, to hring this
SMtler of melancholy to the point of time, 1
triB call one witnesa more, who will speak of
• vemarkable instance that happened on Satur-
day before the Monday when she did destroy
BCfSClf.
Call BIr. Joseph Taylor. Pray, will you
iaibnn the court and jury of what you obeerved
9m Saturday before the Monday on which Mrs.
Stat deitroyed hersdf.
* /.. TayUr, I happened to go in at Mr. Fir-
Mb'a abop, and there she sat the Saturday be-
ihie thia accident happened, the former assiz
r assizes,
1 1 waa aaymg to'fier. Madam, I think you
^akatrMgely discontented ; I never saw you
"^ ' » in my life: Saith she, the dress will
i me aa kmg aa 1 shall ha?e occasion for a
Mr. Cowper, in what poature did she appear
htfaashop?
J. Tatflor. She appeared to be very mclan-
r^ Mr. Cowper, What part of her dress did you
bilknltwith?
* X Twflor. It was her head deaths.
* Mr. Cotsptr, What waa the matter with
* J. Tmylar, 1 thought her head was dawbed
^M aonoie kind of greaae or charcoal.
* Mr. Cowptr. What anawer did she make ?
* J. Taylor^ She said, they would ser?e her
' lb". Coaffjtr. As to this |Hece of evidence, if
Jaw kirdship pleaaes, I desire it may ha par-
Bodarly taken notice of ; it was her head-dress
Ite abe aaid would serve her time.
' PiraTv Mr. Ta>k>r, was you at Air. Barefoot's
[ came there on Monday moruiD^?
/. IV^Ior. Yes ; I went up stairs with you
' ^our chamber.
ir. Omptr. Pray, what did I say to Mr.
' J. ^i^ar. You asked him if they had re-
iMied a letter from your brother, and he saiil,
Vi^BOi that he knew of, but he would call bis
'Vifey and he did call hia wife, and asked her
if M had received a letter, and she said. No ;
Jb«i aakl you, I will take up this lodging
« BHne; and accordingly you went up
VOL. XIII,
atairs, and I went with you, and staid there
about four times as long as 1 have been here.
Mr. Cowper. Are you very sure that I aaid,
1 would take uu my lodgings there ?
J, Taylor. Yes, lam very sure of it.
Baron UattelL What time of the day waa it f
J. Taylor, It was the fore part of the day :
while 1 was there, my k>rd, Mrs. Sarah 8tout'a
nmid came to invite Mr. Cowper to her house
to dinner.
Mr^ Cowper, Did you know any thing of
my sending to the conee- house ?
/. Taylor. You sent to the cofiee- house for
your things.
Baron Jlat$elL Did Mr. Cowper use to lie
at Mrs. Barelbot's ?
J. Taylor. His brother did, but I do not
know whether this gentleman did, but at that
time he took -up that place for his lodging;
and saiJ, it was all one, my brother must par
for it, and therefore I will take it up for myselK
Mr. Cowper. Call Mrs. Barefoot and her
maid.
[But they not presently appearing.]
BIr. Cowper. My k>rd, in the mean time 1
will go on lo the other part of my evidence^
in opening of which I shall be very short.
My lord, my wife lodging at, Hertford, oc-
casioned me frequently to come down. Mrs*
Stout became well acquainted with her : When
business was over in tlie long vacation, I re-
sided pretty much at HertfonI, and Mr. Mar*,,
shall came down to pay me a visit, and this in-'
troduced his knowledge of Mrs. Stout. When
she was first acquainted with him she received
him with a great deal of civility and kindness, ,
which induce<l him to make his addresses to
her, lis he did, by way of courtsbiu. It hap-
pened one evening, that she ana one Mrs..
Crook, Mr. Marshall and myself, were walk-
ing together, and Mr.JJ^IarshaJl and Mrs. Crook
going some little way before us, she took thia
opportunity to speak to me in such terms, I
must contess, as surprised me. Says she,
Mr. Cowper, I did not think you had been so
dull. I was inquisitive to know in what my ,
dulness did consist Why, says she, do you
imagine I intend to marry Mr. Marshall r I
said 1 thought slie did, and tliat if she did not,
she was much to blame in what she had done :
No, says she, 1 thought it might serve to di-
vert the censure of the world, and favour our
acquaintance. My lord, I have some original
letters under her own hand which will make
this fully manifest ; I will produce the letters
atler 1 have called Mr. Marshall. Mr, Mar-
shall.
Mr. Marthall, If your lordship pleases, it
was in the long vacation I came down to
spend a little of my leisure tiiue at Hertford ; .
llie reason of my going thither was, because
Mr. Cowper was there at that time. The first
night when 1 came down I found Mrs. Sarah
Stout visiting at Mr. Cowpei-*s lodgings, and .
there 1 first came acquainted with her ; and
she afterwards gave me frequent opportunitira '
4F
fm\ llimilAkTIL TM^Mfmm
biof Mrto
Jpi
Mft to MVMttiM «*l it MflM I WM
dr. Wbaof oMMWliiVd, ii^y tovi, I WW
9Bf tM ^ mf «Mrtiiv Mis. Sloiit,
ilamfciiftiitwttbMiBMyfc— <; tat
if Mag* MMteoltd t6«ieCi»nii _
iMMulftWftMfffle^lSld
mv Applieitioa to ber; but upon w^rf
Ml «r lllftt MTt, I «0o6it»d « tary Mr 4
MdilMra^iMleclaiyMiC; lir.€o#pflr btviqjf
Hieo#f toM«,«itogh»ne noimW
Mthkiff^tbitooiiTUMedmToaglM to Itt
Mllllnil I uM 86tfMM to ito tnttl iMf*
JBanm Ha<i^/(. Wheo dU Ae OMl jfM tfirf
'We.MmrdUak IcMMtb«|Mittii««todM
r Mini^ tat it WM te *Mir«r to Hm flul^r
I ef«r writ to tar ; at 1 r^
. I #iB>iM»t or«r JBipartuBito to XhtA
> lOr I DBWT Wal ■ ^^'J f mWli ■IfCI*
[M ffHielll Wdl» tat Cdlfta time ti
ninr M TOO MD..
Mf.iMankaiL' I bdim it WM m tMmid or
AWtitae I^fttoe down to Hertford, whtefa \&
•loM^MTindttbiiritooa; and, dmiiif itte
larto5i antttidlltoiiae wUh tar, i Heter tiil
» to any pnltaM] tfifetoe I
taiatattaiitoiliMtutotar rtootntioii wat not
to'Mtoplj ilith wtat I dMtad, 1 toek her at
tar.Mrt, tafktfpMtijr ly tttj^^
wfay tort liaorB'M^ Mr* Oawpera
tala fMity wcHafite to gbito at ber
'Mr. (kmper, Became wtat vou ear mmy
•fafid eoofinned beyond oontradicfion, ( deaire
yta to »y whether you have any letttTs from
bertoyonrself?
Mr. Marshall, Yes, I liare a letter in my
bittd which the sent tue, upon occasion of sum^
•ODffa I sent her when I came to town, wlticli
she nad before desired of noe ; and this is a letter
IB answer to mine ; it is her hand -writing, and
directed lo oic.
Baron Hatsell. How do you know it is hpr
hand- writing:?
Hr. Matthall, I hare seen l:er write, ^lad
seen and received several letters from her.
Mr. Cottper, Pray, shew it Mr. Beale.
Mr. Beaie, I befie?e it to be her hand ; I
hare seen her write, and have a receipt of hers.
CterkofArr, It is directed to Mr. Thomas
Marshall at Lyons-itiii, and dated Sept. 26,
«Sir, 8ei>t. 26, 1697.
•• Vours came Tary safe ; bat I wish you
bad explained yoor meaning a little more aliout
the accident vou speak of; for 1 have been
puzEling ny brains e? er since ; and without 1
shall set myself to conjuring, I cannot imagine
what it should be, for I know of nothing that
happened after you went away, nor no discohrse
about you, onlv when we weie ti]^;etber, the
damnany would sometimes dritik your health,
or wtob you had beea there, or the like ; so that
I foiicy tt most be •omelbhig Mr. --«« — has
lomMlfotdifmtai; ttaiiq;h I ttuai eonfeta
#atai«maifi af pHptali
cm
iiiiniiiiiiil
wtiijtay af ii ■ liM tm^ji^^^
1
Hr. Campfr. Uave you any maiv lettets? ^
Mr. Marvktili. VeS) f tiAve anotliifr IrOei
tare; but before it is n;A4, I ihlok it wi[l It
proper la give the court aa acc<»im£ of tbeooci* i
iiOA dim being wKl. I H^ied on )ln. M
one air etiitig at her lodgi&gs m HonsdiJik^
aiiidat our p^rung&be apiKHut^ to inifl i^
the nasi dj^^ - and to ^ccufie b«r iiot««o^
acoordbtg to ikai ^^j^iniya^ui^ she sent mtlk
letter.
Ci.p Arr, It k dir^cteil 10 Mr. llMI,
Uanh.li ; It la wllbotii Oaie.
M Mr. Mnfaliali,
«« I met uuexpedeil wfik mM ttat esme fm
H" ■ ti liut nigti^ who fletAiaed icte fi 1^
wilii rfelailn^ itie most noLarjous laT«Aima«Hd
Ijrai ttat are now titant 4iu4»ngiFit thuse piifli«
I dould uoi possiUlj corns till ri w« ta|
ItM? flay was appoinfed ii» bosineM, Ihs 1
unc^riMB when ii will b« finisbcil ^ i«ii
I believe I cannot see yoii whilst t aiti in wn.
I have no wore at pni^sent, btitt that I m
YMr abtigcil I\ieii"
Mr. Caoipir. NoWiiny !otd^ tf yoorlopiif
please, I proceed to ahetv you, ih^t I neat ii
, so mudi ?(flnutanly oa pre^gscd bv her lo oai
I to this house, and for tti^t I will product «4
I letter from iier;o mjself ; aod, my ford, I arf
I a little uifortu you of tlie ttatare of ibis tdUl^
• It IS on the outside dlreuled to Mrs^ Jiinf £)b%
I to be lefL for her hi Mr. Hoigrare*! eiA^
house. For her to direct for me at a crfli*
house, migbt make the sertants wontbt ■!
tlie po&t-jnan mi^^ht !»n^pect,and for that itww
she dir<?rlf d it in'that mafitier, Tijen: wis Ik
Marsh;ttt by when I receif ed it^ and I caopwl
tiie haiid by Mt, Berii^
Mr. Manh^lL Uy lord, I reril^* bdkf» t
was by, aod that Mr< Coi^rper s tiewad m» ^
letter immeilistclj oo rec^eipt of it, as be W
done several olbers froui the same hand.
a. ufArr. This t% dirwted IW Mil. Itfl
Ellen. It U dated March the Stb, wittali^
year.
*< Sir, March lla
** I am glad ymi have not qdie fbml
there is such a person as I in baia^ | Cil
willing to shot my eyes, aad not asa IM i
Uiat looks like unkindoeKS to ya«,aiii
oooteot myself with what tita—i fH
ptawed to mata, ttan ta itopilsilifakllFi
muiit not know. ItbouMvaryfiad^^
d
1 173] Jbr the Murder ^Mrs. SartA Shut. A. D. 1699. [1 174
Mr. W. Coiepcr, I con bear vay brother wit-
De89» that when he has been advised to make
these letters part of his defeoce he hath ex-
pressed ^reat unwillingness, and has said, no-
ihin^ but the life ot* these gentlenieu could in-
cline hiui to it.
My lord, alt I can say to this matter is this :
1 do remember, tliat w1u.mi she was one time im
London, 1 think it was about a year and a luilf
since, 1 am not positive as to the tiiue, but
when she was in London, my brother came in.
the rooruiug to my chamber in the Temple,
and alter some discourse, he told me he had.
received a letter from Mrs. Stout that da^,
wherein he said, she intended him a visit at his
chamber that aAcnx>on ; he told me at the same
time, that his friend Mr. Marshall bad some
thoughts of her, and therefore for that, as well
as otner reasons, he would decline receiving the
visit intended him ; and upon consideratioD^
this was tiie method agreed upon : at that time
I lived with my father in Hatton Garden ; and
this gentlewoman having writ in the same let-
ter Inow speak of, tliat she designed to dine
there, and to come from thence in the after-
noon ; says my brother, you may casually, ae
it were, take occasion to say at dinner, that mj
business obliges me to go to Deptford in the af-
ternoon, as in good earnest it did, as he then,
told me ; and from that she may take a hint of
my not being at home, and so save herself the
disappointment of coming to my chamber.' I
told him 1 would tiud an opportunity of doing
it if 1 could. At dinner my father happened to
ask me, as he often did, when I saw my bro-
ther ? I took this hint, and said I had seen hioi
at my chamber in the morning, and that he
was gone to Deptford that anern(»on about
some law business. My lord, Mrs. 8tout was
then at the table. I no sooner said it, but 1 ob-
served she changed colour presently » and rose
with her napkin, and went into the back- yard*
and we saw her through a sash-window fall
into a woman's fit of swooning ; and they gave
her the assistance that is usual in such cases.
My lord, the next thing I can sneak to is
this :' The parliament sitting late therrtday be-
fore the Monday of the last assizes at Uertfurdi
I came late from dinner, 1 had dined about
seven o'clock, as 1 remember ; and hnving oc-:
casion to speak with my brother, I tound him
out by eiKjuiry- at the 'Covent- garden -tavern,
and there was Mr. Marshall of Lion's- inn with
him. I bad not drunk above a glass or two of
wine, but my brother bei;un with me, and said,
I seldom trouble >-ou with affairs of mine, but
now 1 do not know well how to avuid it. I
have receivL*d an importunate leuer, which I
will shew you ; it came from a lady, whose
name 1 lielieve you will guess ; so he pulled it
out of his pocket and read it si) often, because of
the odduessof thcexpres^iion, that I can Nay, I
am sure this is tlit? vcr^ letter lie iiheweil nie at
the Covcnt-garden tavern (he Friday before the
last assizes ; saith he, the occuMon of my abew>«
ing it, is not to expose a woman's weakness, but
I wfiuid not wiUiogiy Us under too nisoy eUi-
wUb your proposition of changing the season, if
it were in my power to do it, but you know that
lies altogether in your own breast : I am sure
I lie winter has been too unpleasant for me to
tlesire the continuance of it; and T wish you
were to endure the sharpness of it but for one
hour, as 1 have done for many long nights and
fUys ; and then I believe it would move that
rocky heart of yours, that can be so thoughtless
of me as you are : But if it were designed for
thet end, to make the summer the morf delight-
ful, 1 wish it may have the effect so far, as to
csontinue it to be so too, that the weather may
never overcast again ; the which if I could be
nwnrcd of, it would recompense me for all that
I have ever suffered, and make me as easy a
ocature as I was the first moment I received
breath. When you come to H d pray let
your steed guide you, and do not do as yon did
the last time ; and be sure order your affairs to
be here as soon as you can, which cannot be
■ooner tlian you will be heartily welcome to
Your very aincere Friend."
** For Mrs. Jane Ellen at Mr. llargrave's,
near Temple-bar, London."
Mr. Cowper. Though it is directed to Mrs.
Jane £llen, it begins in the inside, ' Sir,' and it
m dated the 5th of March, next before the 13tl).
• Baron HatgelL What March was it P
Mr. Marshall, 1 kept no account of the time,
bat 1 am very positive, by the contents, that
Mr. Cowper shewed me this letter, and I read
it, but by my now remembrance, it slionid be
k>oger since than Alarcli last,
Mr. Cowper, It was March Ust. That which
vill.8etMr. Marshall's memory to rights is tliis
other letter, which I received at the Rainbow,
wbeo be was by, and he read it ; and it impor-
taoing me to a matter of this kind, I dul pro-
dnoe it to my bmtlier and him ; they both
koew of it, and both read it, and tlmt will re-
fresh his memory coneeruiug the date of the
ether.
Mr. Marshall, My lord, 1 was in the coffee-
house with Mr. Cowper when be received this
letter; and lie afterwards shewed it to Mr.
William Cow|>er, at tlie Covent-gardea tavern.
ynheu I was by.
CL ffArr, This is datcfl the 9th of Mojch,
and directed to Airs. Jane Ellen, at Mr. liar-
graTe*s.
" Sir \ March 9,
•* I writ to you by Sunday's post, which I
hope you have received ; however, as a contir-
mation, I will assnre you 1 know of no inuonve-
luency that can attend your cohabiting with me,
■nlessthe grand jury should theren|M>n find a
bill against us ; but I won't fly for ii, for come
life, come death, I am resolved never to de:-*rt
won ; therefore accord in<r to your apiiointment
1 will ez|iert you, and till then 1 shall only tell
jou, that I am Yours, ^c ^*
« For Mr!c. Jane Ellen at Mr. Hun^ve's,
near Temple- bar, London."
Mr. Cfuoptr, If your hardship please, i will
r ^Dtfve Ibis ilelter k^ my brother.
i^a iit9tf2£ikftm. )«ii»^^Vi&P€SNpr^4«rMHiib CtM
gutiooi, nnr engage too far ; nor an the otber
haadj w'ouLi! I Ee at an uti necessary eicpenee
ibr a M^ug. Upon thii tiitliject tbeie was
£0me dt$coar«e^ 1 Ihicik, loreigq to ihii pur-
pftse» and thei-efore I would not trouble your
lonJaliip with ik repetition af ii ^ that ^Wich m
inatert&I is this ; I dii! undertake to write to Rtr.
Barefoot';! to dispose of his lod^ng», wbere 1
used to be itt the time of the assizes, and my
brotlker wiib me. I asid I would write the ttt^i
titty, \mn^ Saturday ; but when 1 should have
writ| it was very Jate, and I was weary » beiug
then tied down' to the busineas of pai Itanif^rit j
and partly for Ih^t reason^ and |iartly iu point
of dtscretion, which I had upon nay seeond
thoug'bis, that it would be better for my bro-
ther's business to be al Blr. Barefoot's^ wliich is
near the c^urt, and ia tbe ntiirket-pbcef I did
neigleet writing" } and though I thought of it
ftbout eteveii o'clock, yet» as I said, part! v for
one reason, and partly ihv the other, I dicf not
write tliat time* My lord, my brother could
know nollnugof this matter ; tor I did not see
him from ttie Friday he shewed me the letter,
litl he went to the aiisizes ; ao tbat he coutd not
kdow before be was at Hertfbril, that I had not
writ, I\ly lord, 1 ^v, as to this letter^ 1 am
iure he shewed me the Friday neatt beJbre the
last assizes.
Baron Hatseli. Let me see that letter.
(W«tich was shewn bis lordship.)
Mr, Cowper. My lord, onp or two ofihe joiy
mem to questioii whether Ibe letters are suffi-
eletitly proved; for tbeir satisfaettoni 1 will
fyrlher proTe them. Call Mr, John Beale,
Wilbam Oaker, and Mrs, Low, My lord, 31 r,
Beale ts one of their own sect.
[The Witnesses prored her hand.]
Jury. My lord, we are satisfied.
Baron Hatidi. I believe you may ask her
aiother, she will tell you whether it be her
daurbter*s baod,
Mrs. Sfoul* How should I know* 1 know
she was no such person, her hand may be
counterfeited.
Baron HattelL But if it were written in a
loore sober stile, what would you say then ?
Mn. Stotiit I shan't say it to be her band,
' * it saw her wHie tt.
[Theo the Letter was shewn to Mr, Stout.]
Mr, Stmt. It is Uke my sisier^a hand.
Baron HaticiL Do vou belief e h to be her
liaadr
Mr. Stout, No, I don't beliere it ; because it
don't suit her character.
Baron HatictL But do yon think she might
Hot conceal from yon what were her inward
tboiig^hts?
Mr, Stout. Not in such a degree as this.
Mr. Couper. Call Mrs. Barefoot and her
maid. I desire they may be asked what they
know about my talcing of lodgings st their
B rron HniitU, This is taken for granted.
Mrs. M&rrfoei, W hen you came to my liDOi^
•lb»'
yon asked me, if I had receited a letter irtim^
yonr brother ? And I told you, no. ^
BIr. Ci^per. WhM did I say to disrt ? i
Mrs, Bartfpat. Then ynuaisked me, if f ex-'
peeteJ you? And I told you, yetf^ by nsaon %*
had heard DOthiiie: from too, ' i
Mr, Cmfpfr, Where did I lodge Ihi^ iiiKhl?^
Mrs. Barefoot I had prepared the bi^ii^
before you canie« earpccting you m Mr. Cow^
per your brother. I
Mr. Cots per. And I did come ? •
Mrs. Barefoot. Ves, as you used lo do. '
Mr. CowDfr. Did I send for my ibutp 5«it
the coffee- bouse? ' ,
Mrs. Barffaot. Yes, you dtdjcMUMttU
them up in your chamber as UHi|iifc ' **
Baron HatteiL Where did *
that day?
Mrs, Birefoot. Mrs. StonaintiHr.
desire him to come to dinnefUl
whether he went thither or i% 1
but he went out. ' -
Mr. Ctmpcr. What time di| I C|Mi
lodging that night ? ^ ■ '"
Mj^, Barefoot. It was alitt
M r. Ctfmper. You s re sure*
afler eleven f^Mrs. Bare/. YmL .
Mr. Jmu, By what clockr 9f
clock?— Mn. Barff. Yes. .
Mf. Cowper, Did I go oat ^
night?— Mrs, Bflrr^: No.
Mr, Cimper. Is y«»ur maid Awif -
Mrs. Bar^«»l. Yes.
Baron E&tHU. What is yoar wnef
Mrs. Hunteeli, Mary Han well.
Mr, Vowper. Fimy, what time wasit Icnr
to my lodging f
Mrs. E^nmelL Yon came io a little lAr
eleven o^clock.
Mr. Compcr, Are yon very poaitiva io thil?
Mrs. H&nwttl. Yes, J am very poailife.
Mrs Cowpet, What was done befera I fN#
to bed?
Mrs. Hanweil. My tortf, I went o^ mi
made a 6 re, and then I came down agaByttl
then I went up and warmed Mr.Cowpcr'sM
and then be desired another Manhtft, aaA 1
camt? down for it ; and all this took up a etai"
deroble time ; and Mr. Cowpor waa in Mil*
fore twelve oViock.
Mr. Cowper, Bid I goout agaiotbataigit!
Mrs. HanweiL No* you u eot out no BfR*
M r « Cowper, Now , if your lordship ({jMU^
f would explain that part of Sarah Wafev
the maid^s evidence, where she aaya her ■■",
tress ordered lier lo viarm the bedi and I MfV
contrachded it. Your lord<%hip obsarrat Al
words in the last of the two Icktefi,* NoiaBMt,
venience can attend yoin* cohabiting with atf
and atlei wards, ' 1 won't fly for it: Far MM
lite, come death, t am residred,' uadmm^
had rather leave it to be obserredy tbani
the obseinratjon myself, what migbt be ibl
pute beti«een us at the time the Mai4 H
uf. I think it was not m^ceamy abe 8
be present at the debate; and ibafMhii ll
t)0( interrtipt her aiiati«ai m Hm 9fttk
>^ the Murder ^Mre. Sarah 8hid. A. D. 1«9.. [1170
from tttrt . 8tout*t to the place
nH if MMO as tb« maid wai sone, I
le of tbew olgections ; and 1 md Mn.
r what aoddeiil I was obliged to take
bdgioif at Mr. Barefoot's, and that the
rat fitting iw for ooe : that my staying
onae under toeM circumstances, would
biKty provoke the censure of the town
otry; and that therefore I conid not
tiaterer my inclination otherwise might
, my lord, my reasons not prcirailing,
forced to decide the controversy by
\ my lodging ; so that the maid may
ne, when she says I did not contradict
$rs.
I HatuU, I b^eve you have done now,
s'perP
'^ifwper, Ko, my ]ord« I have more evi-
»give. Call Elizabeth Spurr. If your
pleases to observe, I have already
by two witnesses, that I was actually at
pefoot's a little siler eleven ; so that if
I rest upon this proof, here is not the
icle of time, in which it can besappoaed
mployed in this matter : but, says Sa-
lker> the maid, to obviate (i presume)
lenoe of mine, our house-clock went
lan the town-clock. Now, to answer this
lall further prove to your lordship, that
I came to my lodging, J was at the
lad Dolphin inn, where I had a little
of about six or seven shillings, as I
ler, for horse-keeping, and which 1
id.
Zowptr^ 00 you remember my coming
house, and at what time P
>Krr. The clock struck eleven, just as
ie into the door.
"kmper. How long did I stay at the
mrr. About a quarter of an hour.
"Umjter. Bow far is it from the Glove
phm to Mrs. Stout's house ?
mrr. About a quarter of a mile, or not
far.
hamper. Call Mary Kingitt, and George
rbo not then appearing) in the mean
would observe to your lordship, that to
Mrs. Stout's house to the place where
drowned, and to return from thence to
re and Dolphin, will take up at least
hour, as 1 shall prove, and then the
srill stand thus? Says Sarah Walker,
It about a quarter after eleven ; but our
BBt half an hour too fast : then accord-
ler aoeountf I went three quarters after
be town-dock ; and if it requires (as I
ball prove it does) half an hour to go to
e where she was drowned, and to re-
B thence to the Gtove inn, that would
a quarter past eleven when i came to
by the town clock, which it was not (
itoid there a quarter of an hour (which
sd I did not), it must be half an
■r eteven' when I came to my lodgii
UDe dock, which it was not ; so tl
to iBBttor as to the time is very dear.
9i9 fivfe the time it raqairef to go
where she
drowned heradf, and to return to the Glove, I
desire sir William Ashurst may be called.
Sir W, Ashunt, My kml, I cannot say I
walked as ftst as I could, but I went with a
gentleman 1 see here to satisfy myself about'
the probability of this matter ; 1 walked as
people usually do, and I found it took up half
an hour and a minute, when I walked with
that gentleman.
Baron HattelL Who was with yoo. Sir P
Sir W, Jthurtt. Mr. Thompson was with
me the time I mention. 1 walked it before
with sir Thomas Lane.
Mr. Thompson. My h>rd, indeed it will take
a complete half hour.
Mr. Cowper. I desire sir Thomas Lane may
give you an account of the distance between
one place and the other.
Sir T. Lane. Sir William Ashurst and I did
walk to the place mentioned, and we were
careful to take notice of the time, and it took op
about three ^uartera of an hour, according to
my observation ; and we did not stay at alTby
the way, except just to look upon the hospitaL
Mr. Cowper. Now, mv lord, Mary Kin-
gitt and George Man, Ine servante at the'
Glove, are come : prajf, Mrs. Kingitt, do voir
remember my commg into the Glove and Del*
phin P— M. Kingitt. Yes.
Mr. Cowper. How long did I stay there P
M. Kingitt. About a quarter of an hour.
Mr. Cowper. What was my business there ^
M. Kingitt. You came and enquired what
you owed.
Baron Hatull. What o'clock was it then?
M. Kingitt, I thought it was about deven ;
our other maid told it deven,
Mr. Jonei. How came you to take notice of
the time P
She heard the dock go eleven^
Af. Kingitt.
but 1 did not.
Mr. Cowper.
the account P
M, Kingitt.
Was there any dispute aboot
You asked the hostler how
that camelo stand in the book concerning the
horse ; for you told him, you thought you had
paid aome part of it ; and be told you, you had
not.
Mr. Cowper. My lord, with your lordship's
favour, I would ask George Man a question to
the same point. Do you remember my com-
ing into the Glove and Ddphin P
G. Man. Yes.
Mr. Cowper. How long did I stay there P
G. Man. You staid but a quarter of an hour,
as near as 1 can guess.
Mr. Cowper. I will now call a witoess to
prove that this maid, Sarah Walker, is not so
cautious and careful how she swears, as I
think ahe ought to be.
[Cdl Mrs. Minee.1
Baron Hatull. Pray, wherein hath Sarab
Walker said any thing that is lalse P
Mr. Cowper. In this ; 1 asked her when she
give evidiMi^ wheCiMr ibe went out to ic«
11 wnxim tn-
Tnd ffSpiMir Cuwp^ and tUimh
far his mt^nm all iliat rti^U vail 'wk^lh^t
htr mii^l^'& did nol u»l^ lo st4Ly out i oigbUi
■nd wlietber abr U^rvdlf biul uul tiuarl to say
i> f J r y out lonM" p pi eu«s to i cmombcr, lAie
Ikqi'4 Mrs, moulu m%)d my cor)e«rnia|;bi?t'
mixlreatt, |»artR-ukvlj as la Uer ^lajrb^ aui all
aklitf
dii not tofe til k^p cc>nipftny wiUi Qualers ;
Aod til At *\w paid fi)r li^r ovn boiurd nad bt^r
m«d'i ; and tbati wh«u »lie ctjitnajiusil %ay
fiody, it vran at hsr own clmrp^, And tilifr Katri
sAbK lba( BIrs. Stout used to atk, wbo b wlit)
y&u, diild? swd ibe would not t4fU btr; And
UiatKbt* did en Ut la in bsr <t-Iciid» in tbe Auto*
mff^Uousit now and then wilb n hDtlk of witi£ ;
«Dd whrn her mr>lb«^r ^ktil \yhi> was th<:rc ?
bt'r T«i«trc*fi would &ay, faring it la bere, I
mtf JI03W tbare is iiunc ont (mn^U : and at^ier
ibe cofUMny was gonn, »bi^ u««d to tnitke lur
mmbf r ^U«;re Lbat «be wcul iu bed ; bul jdi«
tnad tQ fi out and take tha key witb ber, «4i4
tometlmci uh^ wonld ;^n uul ta the wiiidi»w ;
and ^a taM parlieukriy, od« time aba w«&i
em m tbc cmrden window^ ^1i«ti tb# gtrikii
dooriraabmt£d, und lb At ihe bid hirr not »it u|»
fi>rb«r» fombe WQiM ni»l vmn^ in at qkny liixkc.
BtToii IhUtil 1>id (^vitf Sarub Walker 1^11
yon that Mi^. f^iout iuid out oil nigbt *
Itn. ii^nc^, Siif kilb said, &kti cc»u]d unt
t£ll wbai time ibe C4in« k, for ibe neol tu
Mr, Cmpir. Now^ if ynnr Tonkbip pTtisef
I will prove to yaui if U m^y be ibongbl ma-
leml, ilmt Uun^^y, al wl)o«e bttixse IheM gin-
ti^meD lodged, fcbntild nsy, tiiEil if I had visited
Mi^, i^tlout, uono of all iltis b;uL beet\ (upon bo
little aa omis&Mui a ^£ms did this prosecution
^fjjend). To which I give ihi* aiiiwer, n^y
lof d I 1 nererdtd opce go to visii ber in my
lifoi she knowst it. Now, for a man officiously
lo make a new visit in tb« lime cd" ibe a^Ktiees,
one f-ngasjed in busine'is as I wn*, aud Gigie-
ciaily upou so melaadkuly an ocGasiun ; I say,
for IU& to 1^0 o&ciouKlv Xti see a vioiii:in I tiever
bad the leait kuowleifge of* would have been
tbou^^b I more strange (and justW migbt havo
lieen so) than the orniiiiiiion of that ceremony,
For B^y partj 1 cannot conetive what Mr.
Gnrrey couU m^Oi ibis bcioi;^ ibe case, by
savnu^i that if J bad vii^ited Mri. I^^Uint, ima-
IbiojL: oV thi^ had haptK'titTd.
Barot) Hcitidi. Mr. Cow per, be ig not ihe
pro«ecult)r, I tlnnk it hi lio ni:Uti^r vvhai he
said.
Mr. Csupcr. I luke ilj my lard, with humble
ppluinuiioii,, it is lualcnal, as htt b a phncipul
wimeKK ii^aitist tbcse f^enilemiin ; and llie ra»
Micr, for t|iat lie ttow proiend!i, that nbat be
did wa» out of cojiselenc^^ I!hly Wd, 1 have
only one lliing more to say, I know^ not whe-
ther it will W requisite tor in^, or no, to give
some Ecuouut of inyself. bir WiUiam Ashumit
ifyiiu (defl<*e,
Sir It . ^*/^lx^i^ fliy lord, if 1 had not had a
good o^akQ of 4kL& j|eQlbiiw, I bad luit mm%
on purpose to bear llii» ca»«e, vrbicb k« vrf^
so sreat a tK>b€ all Eii|;bwi mm", ] 1
fiaroii HuiitlL Bul vital doi««»j« 1%^
^Ir. Ca0per'^ rcptitaLiffii,, l«r Wliicli y9« ii%
called ? ^
Sir IT, i*A^rii. I alivaj» lliOii|^t Mr, C^ ^
per to be a ginlkina» of aiiigularlMij
UDd mim^riiy ; bis ja a^ ofievs- m Iau *
a^ to hfi i».'nii:;^^u>4^al of tii* oScCf I
man ever [ * It bctt«f, or ba a
r^puUlion y , , mjc irber« !m IvrcL
Sir r. jI*«*^k, AJy lordp I tame bitkif ii
[inrpost^to ovr0 thi« giuUciiiati, and mikd If
di^rves lo be owncrd by bis frleod^i aod &«i^
that kmm bink ; lila cb&raelrr v aHogdlff
untsiinted with tii^, he has gained a ipKnif^
isLtioo ai tlie buftioea;!! wbctieiD bt i» coaoMiiC
be hat hchiLi^d bitiiae'ir ia lijc oMce m\a^ h.
hold* of tJir city of Lctudoo very^ koa^f ai
well ; I aercr kuew bim d4«<dfcr aay mH'
lurt^ia hai teiQper \ I think be msoM )mmi^ ,
pect«<t of thii or any other act of baiiantr*
Mr, Crx^tr. My kird^ in ib* mart fimi
would €ilt Mr. CojTt wbo baa the hommia
aerre m {i^rliami^nl f<ir tbe boniiijfh of Sm^
tfftfk, and bai l)cc-n luy nv^r i»t.i^bb(ayr Ika
e^t or nine year«* If y on pleaae, Mf ^ fa^
bare in Ibcst ptaoe.
I^lr^ Cat. My lord, I l(r# m 8«iitb«i4>
whci t^ Mrt Cawiicr lives : ] litate lit £d K| UiL
oi^'bt or UEivcyem-« ; 1 knaw him io W a pciai
nf intt^^rity iiud worth, dltbe niUj|bl»aunciat
bia com]>any« J take him tv ha%e as ermI
honour aed'hoaesty m tmy «|euil«:^:uati Mfbabi-
ever I and, of all mc^n that! ko^jw^ be ff till
he the last man ibat I should ^u^pev'tof uictiL
fact na tblsis^ I bebeve oothiug in tbe w^
could move him to entertsLUKbc lea^t ikotigkl
of so foul an act,
BJr. Coit'pir. Mr« ThoQapaon^ I deafe fM
would be pleased In jflve an aooouot of ww
you know of uic f
Blfp Thompson. If yOu please, t^ lardflb
llrsl acf]UEniitat>ee i had with Mr. dovfrrazt
in our (^Ujldb{:»od, I liad Ibe houoiir lo fa ii
VVsitmi lifter n^hool willi hliu i I did iOli»*
new my actjuainUmce with him tUi aboat £it
years ago j sidCf^ that time 1 haveb^^oflei
wiib him, and have several tlones b&d riiiiifOiM
to ask his advice in matters i^laliog^ to bis ]«9-
fe&iion ; aud I ibiuk no tua» more fiutbfid il
I the sow ice of bia chieut thaa he ia, Aod 1 ta
sut^ be iM very deserving di' the em/eem of mf
oian, aiul I WlieYe he never cnlcrtaiotf) &
thoug'hl o[ so foul and biirharous n liu:t a$ dusi
of whidi he is aeeuiic-d.
Bamn HattelL Mr. Manoo, juvk have brvi
tbe ev id t J Lee, wbi^l doyim^y toil?
Mr. Mttrmn* My lord, our bu^me^ at UfiV
ford was ibiii : Mr. Ellis ^lephi^^s aod 1 v^
dawn« be is elerk of tbe paptm ol the &iaf s*
hrncb, and Mr. lingers lh steward of tin
Ring'a-bench, and U wu^ tlieir duty to aiil
ui>on my Lord cbief justiije, wjib ihe martbalirf
tbe Km|r'!j.licncb, out of town ; 4iod on Hisr
. ilay itiuLaiun we wentlo xi>y lor^^^lu^iiiiPPe'l
1181]
Jot the Murder of Mrs. Sarah Stout*
A. D. 1699.
[1182
konse Id liineolnV Inn-fields, as we used to
49f and there set uat ; but I, bcinflf an attorney
•f the borooirh oonrt, could not with any con-
vanenoe go nrther with tbeni than to a place
wiiidi I think is called Kingsland, and there-
lbf« I retnmed to my basioess in 8onthwark,
1 1 attended the court, as wns customary
1 necessary for me to do, and set f<»rtli from
I at past four in the altemooii : hy the
lr«y, as iTemember, about Waltham- Cross, I
VMt one Mr. Hanks, a clerg-yman of my ac-
«lMiDtanee, who had been likewise to attend my
lonl chief instice to Hertford, and was retum-
hag from thence ; with some persuasion I pre-
vailed with hi ill to gn back agtin with me to
Hertford, telling biro, I did not knoir the way ;
•nd we galhiped every ste[> of it, beeamte night
wae coming on ; it was abOut eight o'clock
wImh we came in. Mr. Hanks and I found
the marshal, Mr. i^tephens, Mr. Rogers, JMr.
fUrtkiD, and others of the marshal's acqnaint-
■Bce, at the coffee- house ; and truly when I
i in, I mij^ht, for aught 1 know, be in a
t with riding so hard as we did, but eren
I was not in such a sweat as the witness
Wvald have it. My lord, we went from thence
to the Glove and Dolphin, and stayed there till
^ dereii o'clock. Mr. Rogers and I had a
who should lie with Mr. Htephens at the
witness Mr. Gurrey's; at last it was
between us to go to Gurrey's to see
conventence he could make for us, and to
a glass of wine at our lodging ; but after-
it came in Mr. Uutkin's head that he was
'M«ed
Mtatc
•» Me with the marshal, and for that reason, he
miAf he would go back again ; and accordingly
he went, and Mr. Hanks with him, after they
had seen iis into our lodgings, and Mr. Ste-
phens, Mr. Rogers and 1 drank throe bottles of
nine togetlier, Mr. Gurrey, our landlord, was
MM to fetch it ; and afterwards in jocular con-
vention, I believe Mr. Htephens might ask Mr.
Gurrey if lie knew one Mrs. Sarah Stout? And
the ratson wh)r he asked that question our wit-
^ — I will explain. I believe he might likewise
ttk, what sort of woman she was? and possibly
I Might eay the words, My friemi may be in
whh Der, ttaoogb 1 remember not I did say any
tMw Hke it ; l>iit 1 say there is a possibility 1
■right, because I had heard she had denied Mr.
Manhall's suit, and that might induce me to
■ay, My friend may be in with her, for all that
I remember. 1 confess Mr. Rogers asked me
fihit money I had got that day, meaning at
the borongh court P 1 answered, fifty shillings ;
Mrith he, we have been here a spending our
money, I think you ought to treat us, or to
that purpoee. As to the bundle mentionerl, I
had DO such, except a |iair «if sleeves and a
ueekdofth. As to the evidence which (foes to
wonleepokea, the witnesses havo ftiiiiful in-
ventions; and as they have wrested and im-
proved the instances f have been particular in,
whave they the reft, or otherwise forged them
.ewt of their own heads.
Baroa HaticlL Mr. Rogers, what do you
i
BIr. Iloger9. We came down with the mar-
ahal of the King's-bench, it rained every step
of the way, so that my spatterdashee andsboes
were h\n to be dried ; and it raining so hard,
we did not thmk Mr. Marson would Imlvc come
that day, and therefore we provided but one
bed, though otherwise we should have provided
two, and were to give a crown for our niglit's
lodging. We went from the cofibe- house to the
tavern, as Mr. Marson bos said, and from the
tavern the next vray to our lodging, where
there was some merry and. open discourse of
this gentlewoman ; but I never saw her in ray
life, nor heard of her name before 6he was
mentioned there.
Mr. Stqthera. We never stirred from one
another, but went along with the marshal of tlie
King's-bench, to accompany my lord chief
justice out of town, as is usual.
Baron HattelL I thought it had been as
nsnal for hiiu to go but half the way with my
lord chief justice.
Mr. Bigen. They generally return bock
after they have gone half the way, but some of
the head officers go throughout.
Mr. Stephcnt, It was the first circuit after llie
marshal came into his office, aud that is the
reason the marshal went the whole way.
Baron Hnttrll, Did not you talk of her
courting days being over ?
Pri$oner$, Not one word of it ; we abso-
lutely deny it
Mr. Stqfhens. I never saw her.
Mr. Jc;ncf. Mr. Marson, did you ride in boots F
IMr. Marton, Yes.
Mr. Jones, How came your shoes to be wet?
Mr. Marson, I had none.
Call Mr. Heath, Mr. Hunt, and Mr. Foster.
Mr. Marson. Mr. Hunt, will you please fee
acquaint my lord and the jury with, what dis-
course we had on Sunday night before the as-
sizes, at the Old Devil taveru at Temple-bar ?
llujit. On Sunday nvj^ht I happened to be
in company with Mr. Alarson, and three oir
tour more of Cliiford's-inn, and there was a
discourse of the marshars attending my lord
chief justice out of town to Hertford, and Mr.
Marson said, * It may be the marshal mar re-
' quire my waitiufjf upon him too ;' and the
whole company bem^ known to Mr. Marshall,
and there neing a discourse of Mr. Marshall's
courting of Mrs. Stout, saith one of the com-
pany, * If you do go to Hertford, pray enquire
* afier Mr. Manhalrs mistress, aiid bring us aa
* account of her.*
Mr. Jones. Who was in company f
Hunt. There was Mr. Heath, Mr. Foster,
Mr. Marson, Mr. Stephens, Mr. Baver, sad
Mr. Marshall.
Mr. Marson. Now it was thb discourse that
gave us an occasion to talk of this woman at
Gurrey's house, which we did openly and
harmlessly. Mr. Foster, do you remember
any tiling of our talking of this gentlewoman
on Sunday night?
Foster. Yes ; I and they were talking, that
they should go t^ lta^q»T^ >2Dfe laeixSw^^ v^
118S] 11 WILLIAM III. Triidqf Spencer Cawper and oiUn,
wait on the manhal, in compKment to my lord
chief jmtiee, and go as far as Hertford ; and
there heing a report, that Mr. Bfarshall comted
this woman, we put K in a iestiogr way, * Pny,
* enqaire after Mr. Marsnall's mistress, bow
* * the match goes on ; ibr there was some wa-
* MS between him and .the company, who
* sheald be married first P' And so, m a jocular
way it went about, and Mr. Marson or Mr.
Stephens said, * They wouM do their endea-
^ four, and they would enquire after the huiy,
^ and give as good an acooont of her as they
« could.* •
Mt. Stephens. If yoo please, my kvd, we
will call another to this purpose.
' Baron HtUselL No, I think you need not,
for it seems not material.
(Then Mr. Hanki was called.)
Hankt. I came as fsr as WalthamVcross
to wait upon my lord chief justice ; 1 stayed
there till about four or fire o'clock, and then
set out for London ; and I met with Mr. Mar-
son, who importuned me to go back \«ith him
to Hertford ; and accordingly I did so, and we
casne in about seven or eight at night, and we
-enquired after the marwal of the King's -
bench, and where he had set up his horses,
and we found him in the cofiee-nouse just by
the court, aad n e went and set up our horses,
and came again to him ; from thence we went
to the Glove and Dolphin tavern ; these three
gentlemen and the marshal, and one Mr. Rut-
kin came afterwards to us, and we staid till
about eleven at the Glove and Dolphin.
Mr. Murson. Do you remember how we rid ?
Hanks, Yes, very hard.
Baron llatselL U hat time did you come
■ into the tavern ?
Hanki, Between seven and eig;ht, as I re-
naember.
Baron Hattell, And did you stay there till
past eleven P
Hanks. Till about eleven, little more or less;
We went away tog'ether in order to drink a j^lass
of wine with them at their ludgiufif ; but Mr.
Rutkin considerint^ that he was to drink a srluss
ot* wine, and lie with the marshal, thought it
would disturb tlie marshal ; * So,* saith he, * I
* will not go in \* but we saw them f^ into their
■lodgings, and returned to the Bull, where we
eat part of a fowl, and 1 was never out of Mr.
Marsoo*8 company all that time.
Mr. Marson, When you took your leave of
roe, do not you remember that the door was
clapped to ? — Hanks, 1 cannot rciuemher that.
Mr. Marson. Mr. Gurrey saith, I ni?ver went
out after I came home. Mr. Kutkin, pray,
give an account to my lonl, and the ^MilJenicn
of the jury, of what you know of my coininij
to Hertford?
Rutkin, My lord, I came to wait on the
marshal of the Ktng's-bench to Hertford, and
when we were come to Hertford we put up our
horses at the Bull, and made ourselves a little
clean ; we went to church, and dined at the
• Bull, and then wa walked in and about the
court, and diverted ourselves till al
o'clock ; and between seven and cigl
came Mr. Marson and Dr. Hanks to
then we agreed lo go to the DolphiB i
to drink a glass of wine : the manha
see an ancient geutlemany and we m
Dolphin and Gkive, and staid thefe ti
o'clock, and after tlie reckoning wai
went with tliem to their lo<^w, vriti
to take a gfatfs of wine ; but then I i
I was to he with the marshal, and foi
son 1 resolved not to go in, but cai
and went to the Bull- inn, and drank
pint of wine, and afterwarda went to
door to the BuU-inn, where I lay
marshal.
Mr, Jones, What time dkl the genl
to their lodging P
Rutkin, I am not positive as to tl
believe it was about eleven o'clock.
Mr. Marson. If your lordship pie
I will call some persons to give an ai
me. Mr. Cox.
Cor. I have known Mr. Marson all
and had always a good opinkm of h
not believe 5,000/. would tempt him u
a fact.
Mr. Marson. Captain Wise, I d<
would please to speaiL what you know
BIr. Cowper. My lord, because tfc
tiemen are strangers in the country, 1
in taking an account of any evidence f<
there is any thing occurs to me that ti
have a just ailvantage of, I think I ou|
conceal it, for I am as much cuocernc
tify their innocence as my own. Tlir {
witness against them is one Gurrey
will prove to you, that since he appear
court, and c^ave his evidence, he went
triumphant manner, and boasted, tba
his management, had done more a^^ai
gentlemen than all the prosecutor's v
could do besides. To add to that, 1 b
ther piece of evidence that 1 have beet
quainted with : my lord, it is the uidu
GurreyN wife*s sister, that 1 would oil
Alajor Lane. My lord, 1 have kot
Marson ever since he was two years
never saw him but a civilized man io
he was well bred up amon^ us, and I u
him ^ivta to debauchery m all my lift
Baron HatsclL Where do you live
Major Lane. In Southwark, my loi
Baron HalselL Well, what do you i
Davis ?
Mrs, Davis, I came to the house wb
gentlemen lod<ye<l ; J was in about half
and uiy sister ai»ked nic to air two or ti
of sheets: when 1 had aired the sIm
asked me to go up and help to lay t
and before I had laid them on, these gi
came into the room.
Baron Haisell. What hour?
Mrs. Davis. By the time of my f
again, 1 believe it might be about liB,i
thing better, and tl^ *'™^.'^'U
wine, and they had i - ^ ■-
ft^t the Murder of Mrs, Sarah Stout.
A, 0- 1699.
[1185
r cmrried up, aod so they \s-^ai to bed ;
aHrr toy brother went to i'eXvh Mr, G&pe,
. by at hh house, from Hockley's.
Mr/Citwper, J ouly Ijcg leave' tu observe,
tliat Gurrey deoied lliat he went for him.
n.iron HntttU* Ay ; but ihis sig-nifies f ery
Ijer tt li€ true or faJse.
lU, The next fluy tfler, these ^^n-
t ««t$re about tiiu ti>\vu ; and she sairl, she
efc ih«y »»'cr«? corue to clear a youni;
un: I iMhat was tried at the bar
i asked vf\\y »he thotig^tit
siif wtts surcolil : and 1 asked
ktbc could be sure utit, when she was
fso? Why, siiid I, do they aecuse
B*e trtnrJtmfeij? Vhey ou^bt rather io take
I llio i^ciUlLMiian that v^ws with Mrs. Stout's
and bhe said. Jf they took up Mrs.
t;» muid, tliey should have never a wit-
_ HnttelL Wbn was that that iras taik-
^ with Mrs. 8iout's maid ?
lir&, Davis, I do not krioiv, but she lald she
Dot like their actioog ; and ihererore she
^Ut to hiive been examined who she was
^Caj>t. IVke. I have known Mr* Marson se-
-^, and he is a person of as fair repu-
iiy in the Borough »
.f. 1 havf b^Q acquainted with Mr.
I to J ears, he Uve« near the house where
do: be lias a (general gucid chiiracter
non^ his iietg:bbour«, for a fair niuo in his
ncticei an lionest luan, and a man of i^ood
Oinverfation.
Baron HafseiL Wdl, Mr. I^pbens, what
49 \oti say r
Suphtns. I desire sir Koberl Au»tio to git e
^■pi account of me.
^Hsir R. AuUin. I have known Mr« Stephens
^H|iDjr years ; his brotUer is captain in a nei^^^b-
^HpanD^ country ; lie is reckoned not oidy an
^V«D9t man in his practice, but has thtr jnreneral
cftia rafter of a (jfood-natiired in:in ; and he is so
fjr frt*ti» btfjn^ a iK'ri>on bkely to do such an
action^ tti^t^ fur ayouiig^er brother, he ivas very
frell provided tor; Uh father left bim 1,U00/.
ati<t be is clerk of the pa.per», which is rep u led
north 100/. a year, and is in good practice be*
^K Juryman, I ha?e known htiD several years,
Hpiid he has the satue reputation sir Robert baa
Hpiiren him.
Sir J. Sh^w. I know Mr. Stejdiens, and lus
bfother captain Stephens: as lo this gentle-
!, be bntb always beba?e<l him(»etf wdl io
couatry^ and hatb the character of an ho*
gfeutleman.
£vant. 1 bafe known him for these eight
^ears, and to be a very civil [»erson, and welt
educated, and never beard but a tj^ond cha*
racter of him : 1 ha%e also known Mr. Mar*oo
these ten years, and never saw any ill by )iiui»
juid do believe, that be or the otiier would not
liave done such an ill thing to have gained this
country,
Mejiiovt. My lord, Mr. Stephent was my
VOL. XJIL
clerk, and lie behaved himself very honcitlJy
with me. And smce th«t, 1 have kepi a eor-
respoudence with him, and f believe he would
not do such a thing for all the worit!.
Baron HtU$dL Cull somebody to speak for
Mr. Itogfers, if there beany.
Evans, My lord, Mr. Ilfi«yera hath a j^fcneral
character in Houthwurk, for a very honest man.
Mr. Hogen, Pmy call Mr. Lygoe, 8ir,
please to gfive my Jonl and the court an acoouut
what you know of me.
Lifgoe, My lord, i hai-e Icaown all the three
geuilenien at the iwr, but particularly Mr, Ro-
gers and Mr. Sieuhens, from their infancy- I
have employed them both in bm;iness several
limes, and always found them fair practisers ;
and beliei^c neither of them would be guilty of
duii)^ an ill act.
J\rr, Rngcrs. C:ill Mr. Thurlby. Sir, pray
give the court an account Imiw 1 behaved my-
self in your service.
Baron HalselL Come, Mr. Thurlby, what
do yuu nay of Mr, Rogers?
Thurlbif. My Ion I, Mr. Rogers lived with
me about eight years, in which time I fre-
quently trust eil him with very great sura a of
niouey ; I ever found him just and faithful,
and cannot believe, that any money could tempt
him Io do an act ot this kind.
x>[r. Jones. My lord, we insist upon it, that
Mr, Cow per hath given a different evidence
now frofD what he did before the coroner ; for
there he satd be never knew any distraction, or
love- fit, or other occasion she had to pot her
upon this extravagant action. Now, here ba
comes, and would have the whole scheme turn-
ed upoo a lo?e-fita CallJobn Mason. (Who was
sworn.)
Baroti HatieiL What do you say, Sir, to
this matter ?
Mr. Stout, When Mr. Cowper was examtocd
before the corouer, he was asked, If he knew
any reason why she should do such a thing f
and he said, she was a very modest woman,
and he knew no cause why she sboiUd do such
a thin^ as this. John Jnasou, was you by
when Mr. Cowp«"r i»ave etidence before the
coroner? — Muwn. Yes.
M r. Jonet. W hat did he say ?
MoKGn, He said be did not know any thing
was the cause of it, but she was a very modcat
peraou.
Mr. Jimes. Was he upon bis oath ?
Mason. Yes, he was, ^^H
Barun HuddL Wbeu did he say tbisf ^^|
Mtuan, It was the same day she was fouiil^^
Mr. Jones. Hid they ask bins any question^
if he ktiew any penou that she was iti lovn
with ? ' -
MoiQH. He satd he knew hut of one, and hit
name w^is Mar?ihul1, aud Mr. Marshalt told
him»Tbul be was ulviays reputsed by her,
Mr, Stout. 1 desire* Joliu Archer, may be
askf>d the same question. (Who was sworn.)
Mr. Jonti* Was you prescat witli Iht est*
rooer's inquest?
J. Arck^r^ Yea.
I
I
I
n WILLIAM 111.
Mr, Jonct^ Wan Mr. Coirper ezamined by
thrii) ? — J, Ar<ktr. Ye% be w»»,
Mr. Jone*^ Wbal did he wy conceming Mrs.
Siuiit tbni ?
J. jJrfA«:r. Tbev a«ked biro, If be knew any
occusion fur Mrs. ^toui's deatb f And be said,
be knew nodiingofit^ or of any teUers.
Mr. Cowper, Then 1 romit call over tb«
wlu»l<2 cofOaer*8 ioqnest to prove l)»c contrary.
Baroti Hat tell. Did tbry aiik tiim ootioeni-
ing^ unv letters ?
J. Archer. They askcil biro, If he knew of
any tbui^ tbat might bo the occasioo of ber
deatbf
Baron EaittU. 1 *sk you again, if they
asked Itifu if bf knew of any lettera ?
J* Archer. My lord, t do not remember that
Mv, Stout. I would bare called eonie of ibe
coroDtfr'd ioquetiti bnt 1 waa slopped Id iL
Juryman, ^e bare taken mioutea of what
has flushed : If your lordship ple^iae we will
witlidrMW.
Baron HatscH. They must make an eod
first,
Mr. Jones, if your lordship please^ we will
call one witnecs to falsify one piece of tbeir
cf ideoc<>, and thai ii ooe widow Larkin. (Who
WHS sworn.)
Mr, Jo lies. Do yon remember one Mr Rat-
lin beiti;;- at your hou.«M*? — Larkin. Yes,
Bir. Jones* At what time did be come in?
Jerkin. Between nine and ten of ibtf cltick.
Mr. Jtm€$. Was ibe mtrsbal tlien in the
boufe ?
larkin. No ; the marsbai did not come till
iMarau hour atW.
Mr. Jimc*. Did not he go out afterward* ?
iMrktn, Not %Uh\ I know of.
Mr. RuikinM. 1 uui satiatied it was past
ekren when \ came in.
Barori u .i..it 1 1 jg Jibely it may be true ;
ibr I ty did not' keep very good
bonis ae.
.1 deiiire to call some witnesses to
1P\ tepuluti<»o.
h\t, Jones^ My U»rd^ ibey would call wjt-
niaseato this gentle wouj a n'ti repuianon ; 1 lie-
fievetlie whole town would ^itte^t for ihat, thai
■he was a woman <d' a ijuod rt«putatt<in. In-
deed tliey bote proJuc<^d some I r- Iters withmil
a name, but if they insist ii|iijn Any tiling
againtt ber repotaiion, we itiu»t call uiir wil-
Baion hattctt, I lielievo nobody di^iputes
that ; fiho mis^ht he it vtrtuonA woinnui wnd
]>t<r t.. M.i.x^ tni^ht be turned by her passion, or
ir iper*
II of the jury, vow have heard
a very lon^" evidence. I am sure that v««
cannot exptct tliat i ahould sum U up fnfly ;
but [ will take notice of some things to y*>«
that 1 think Ui*t mobt mnttnul; anil if I omit
bay thing thai ik materml, 1 VpOuM dusire ^Ir.
Joaea (that is counsel tbr the king) and Mr,
Cowper to put m^ in roiud of it.
The indictment against the prisoners at the
bar is for a rery great cnm^ it is for tnurder,
wbtob it one of ill* rkmI bomi of iD
Yov are to eoaMew tifvt wbil wmda
have heard to prove it ; mmd ibMCbi
no direct procii; you mF€ la eoomr
circumstaotitiL
They An licgrn with Haf&h Walker, what
Mra, 8arah Stout's maid ; Mid abe lelkyoii, ll
MrCowper, when h<« cBjxae to tfaia town oalMii
day the I3th of Matrdi iMt,
Stotit^tf house and dinad thera^
about four o'clock in the mfkiEnuna *
IfUayoQ, that the Friday before, them
letter from Mi. Catvoer'a wtteto Wrm ^tat^lj
let her know that Mr. Co«rn«r woid4 (
and lodge at their htnme ol llertfbrd at I
aaaizes \ to that wben be cane, (
that be had intetidei! lo bave doiM i
that letter. 8he aaitb^ that after i
Cow^ier went away, and enme ag^fn i
night, and there he siipp* ii
to do^ (and iudoc^) had i
also that day) aud iibe dotn »;i
per there was a tire made ifi i
this vouivj " *' ■: TT ^V II
him tu lit i<rti
m:iiil Ui vi;i , ^^f. » .i..i. 1 ^^.,_*i,i
Mr. Cow Iter h*r*r*l her say ao, for hf rttl
nearer to ner than f, atibattime^ ami krM|
not deny hut tliat he heard it Hbe oiyi, I
accfinlint^ly she went up to wano tbeMti
havnig Miuy<*d there a while, «lie betfi 1
door clnp ; aod whcHi nlie came ikMUtt brtfti
parlour, wb^re she had left tbcno, tbcTOI
hoUi ^tine« and that the could not lull wbali
mcanuig (4' it wh% ; aod r^d fer brl
all ni^ht, old Mrn. fitoutaj id. aa44l|
did not cr»me in ad night, not ma» aCM
aeen alite ; hut Mr. Cowper waa tbo liilpV<l
son seen in her f - r-
The other \k > 'i^i cran^r i
s^ieak coTn**f" , iini* ettKf hrtd* m"^
riter, ami > ■^'- h;.! ;M'siin «- k ,* ■-•. I
shall not m i . i i^i\H j^ r.u Uj* |).i;iirii-|l j
of their evidence ; but they lelJ v^u »hebj«
her n^ht side, the one arm up'e**ri wttli tk
surface of the water* and hev i«^i
water ; but some of her Hoaih> -*
water ; particularly one «&ya, tlie rufflc«|
left arm were ahove the water, Yfl
heani also what the d^ actors aud biirgc
oti the one t.ide and the other, ctf»nc«niti
auimming-and «inkuig of dead iMMbea I
water; hut 1 can find no certainty itttt| i
whtc . .r ., »*' ,
lank, and ilint there *• In
sav they^ wlie** a m
iri^al d*»»l ofw
tosweh ; but li
ingahe was taken out, ain
h»»r month rwA tutsfriN, '"
the
|)erli
soon
you may noi noudcr ai liiai ^ u
Il8i)}
Jbr the Murder of Mrs, Snrak Stoui,
A. Ut JG99.
[1190
I herselff she wouM eodeavour to he
I «9 soon as she cr>ul<J ; for thofie per-
but are dro^vnfd sgmnsi their own eanseni
lilow n jTiTiitdeal olnaier. bul tho«e that
|vva Llieniselves ill} notswajlaw much water,
ih^y are cb naked immediately by I he water
iy^ iiUo the wiuilf»ipe ; that we coniiftordy
*" going the wmnjf way. The ijoctor^ aiiri
iiMnn have talJceil a great deal to tbi» |>ur-
, sni] of tb<^ water's ^**mg into tlie lungs
f- thorax; hut unless you ha?e rnure iktil
ill anatucny than I, you woulil not be much edi-
1 by it. I acknowledge I nt'ver studied atia-
fiy ; but I i^erceive that the doctors do diflfer
their notii>n>J about tbene thingrs. Oiitt as to
liter of fact, it is aj^reeil to by aJI the wit-
I for Ihe king-, that her body was lank, her
J was chin, and there was dosiitq of any water
|lie m h : Hiey on the otlier !«ide tell you, that
rsfaya wtka on, and hhe wan i»trail-taced, and
^t tni^fht oc ca^ioo her belly ^s being* so small,
1 hinder the water from ^oiot^iu.
[•tMitletuen, J was very much puzzled it) my
^UjCrhta, and was at a loti<* to 6nd out what in-
oent iliere could be Vi draw in Mr Cow-
, ^r the^e three other gentlemen, to commit
rh a borri ^ fmrhttroua murdc^r And on Ihe
hatid, I could tioi ium^ine what there
I be to induce this f^entlewoman, a pemon
plenlirul fortune, and a rery sober good
|tOo, to destrt'v herself.
K gentlemen, 1 muit Ciintess, the evidence
t defend ants have jfiveri by these letters^
helif've them to be this gentle worn a u'k
l-writinof, do seem to Worlify atl that Mr.
rper'B witnesses liave iaid» concerninef her
J mr'lancholy : It might be a love di«trae-
I, and she might have beea a viriuous woman
* aJI that ; for it niig^ht be a distemper whicii
oc upon her, and turned her brains, and dta-
aposed her mind ; and tlieu no wonder at
r writidiT *hu8» in a manner difTcrenl from the
; of ibe Bctioas of her life* Gentlemfu, you
to consider nud weigh the evidence, and I
uot trouble you any more about that
iter.
Afe to tiiese tliree other geoUeraen that cam« I
to this town at the timeof the1aata£sizeS|Whal
there is agatufil them you haie heard : they
talked at their tfidgin^j ai a slraort^erate, concern^ |
ing this Mrs. Sarah ^tout, saying, her business '
is d»ne, and that there was an end of her court*
ing'day%i, and that a fri«5nd of tlteirs was erea
with her by thi& time. What you can louke olT |
it, ihut 1 ratist leave to you; but ihcy wei-^ (
very strange tfxprcssioos -, and )0U are to
judge whether they were Kpokenin jest, as they
pretend, or in earnest. There was a cord fbuo4 !
ID the room, and a bundle M?en there, but I
know not what to make of it. As to Mrt,
Stout, there wa>i no sign of any circle about her
neck, which, as they aav» mut^t have lieen, if |
she bad been atranglci : some hpota ther»
were; bul it is said, posjiibly those mi|j|^ht bt
occasioned by rubbing against sortie piles or ,
stakes in the river. Truly, gentlemen, thest^
three men, by their talking, have gii'cn great i
(Tauiie of suipidon ; but whether they, or Mew
Cowper, are guihy or no, that you aretudetecr
mine. V am sensible I have omitted many
things ; but I am a httle taint, and cannot re#
peat any more of the evidence,
Juri/. We have taken minutes, my lord.
Barim UatsclL Well theti, gentlemen, ft <
together, and eooiider )our evUlence j and t
pray God direct yovi in giviug your Tert^icL
[Tlien one was awornYo keep the jury, itnd J
in about half au hour the jur}' returnttd.]
CL of Arr^ Gentlemen, are you all agree!
in your vefdict ?~^ihnnew. Y*is,
Ci, of Arr. Who shall say for you P
Omna. Foreman.
CI. of Arr. Spencer Cowper, hold up thy I
hand. (Which he did,) Look upon the prisoner.
How say you P Is he guilty of the felony an4
murder whereof he stands iodioteij, or ool
guilty? — i-'oremau. Not guilty.
In like manner tlie jury did give their Terdicl»
that John Marson, ElUs Stepheus, and Witliaoi
Rogers were Not guUty.
le Cask of Spenceu Cowper, esq. Johk Mahsok, Ellis Ste*
PHENs, ami William Rogers, gentlemen.* [Published by
tbcm in 1699.]
First, in general ;
[THE said four gentlemen were In very good
^Biplovmeats, and easy in their circumstances ;
Ulr. Marson aod Mr. Hlephens are attorneys at
iaw^ in good busiaess, and Mr, Rogers, a aci-i*
veaer, in (^ueen-street, London, and of un-
* *♦ A» Mr, Cow per *s Case made so great a
lise, nod he otadc so consideraidc a tigure to
(li'oper to insert ilnise curious
vroteatthst tune relating to
i^oic uj toiiwer Editlou.
spotted reptitations ; the last an utter vtrtoger
to >Ir. Cowper; when at once they were ac<
cused of beiag together, with the basest and
most execiuble crime that the greatest villain
in the world is capable of committing.
Nay, iu one respect, they \> ere accused of i
doing what the most hardened in wickedoe»»
never did « that is to say, of having co^tracled
the guilt, and run Ihe immioeut hazard tff
murder, without any temptation or provooftlioB
to it, or other cause whatsoever.
For it has pleaib«d the ProvtdeiiM of 0^ &•
'f Mk] 11 WittKAlf IIL
1liatch«ir
10 niflU tbcjr xaludlnij W
world, It WM nttmmity i
^■eim^i udllhcRfiiretli^
P?*<«^t
Mrtl^Md^ltbOTCk
, rtboMkeorfoiiil*;
Jir. Gof^p^) berar ooee IM the' inpudoioo ot
Ae triid^n mdcbif totegoifetko MBOb *
Ottj'othertaW.'tiMiigfaoAaii p«l ia niBdof
it: Qoraurtheyyel, wJthtUtfcrir^iiaB, hi*
ttec;'miidr kH pra^, tho loMt gtswd or n»*
m flntoooldftacileflwiQ, ori^dTltaB, to'
r o oio 00 nauntaroT fal teei; ottd
, FCM«tdaadpttiihed^o9iralliB
Ab world 00 that to ooMo; ll^...
Aod Ml tall widoMtolij pnov tMd o^tavdof
ajnaoaoMaillM IgraoyoM; h be)ogllMtfli^
met ipf .tho oofoiiot^ loaoiat^iMrij iiidoo«dl>li
(telholiMhvioar of^ fcodj, oa elimMag
oaaa a aaa'aim wao vna aad ffeo
lAaBMlofi
_. J af their ooet, to oloir it
t4odM «aa hrffanriliaitharat oT
M oi^ioiM^ ihaTta 0^
It ia ihoit btioaghiy edald over Imvo
up a pfooocutioa, aad bora mode so
much none in the world, with it, out of sueb
Holt, ootoParticolars;
Mr. Cowper, tho day on which the de-
oeawd'a body was found* was examined, among
maoy others, before tho coroner's inouett ; and
which is f ery romarkaUe, did then nreely give
an exact and full accouot of every the least
cbicum8tance of feet that has been at any time
ohice proved, &r pretended to be proved against
him, throughout the whole prosecution.
When tlie circuit was ended (for this acci-
dent happened while the assizes were holding
at Hertford), which unhappily drew these gen-
tlemen to that town, about a month after the
sitting of the said coroner's inquest, the said
tour gentlemen were severally sent for, and
readily come to the lord chief justice Holt, and
were examined ; and what*they then inf'oimed
the chief justice of, on such sudden ami ;»<:« eral
examinations, has not been falsified oi* contra*
dictotl in the least, but on tiie contrary was
constantly adhered to, and at last proved and
made good at their trial.
That after their said first examination they
were dismissed without bail, and thereby had
an opportunity of flying; as 'undoubtedly they
would have done if conscious of any guilt.
Then they were sent for a second time and ex-
amined, and admitted to hail; and afterwards
(the prosecutors havioff in the mean time col-
iMtaii aaveral mlbnnatiotti and aectiiicattt^ ooa-
taiQto^ ohserratlons nnd OfMoiooo of thc^
and planner in which the ikceased^t k^
fuimd, %.n4 vf hat amieared on Tiei^ihefl
weeks after il had beeo buried bv ihac
cutors, iiiid used liefore as they \i
Cow[»f r ami Mr. JVIarson were <
the fjther two siitl ecmtiaiied upon b«il/
It h remarkable, thut in |imctirUg d
formatiotis and ec rtiticnt^a, and in iM
conduct of the prnceiS (%it far as enrfid
the cmintry)t the prosecuiorie applied
selves at HenfonI to thotie very perf«(
those only, wht> lUcy knew wore |iTota|
mtes to Mr. Con pier's rdAtU^nw^ Upon j
of control' ersicB ari^tng at c^eciions. aai
wise, '
Mr
to brfii h«l mA
i|itOMiag ia tlw KiNE^biach, aa «
wnL tba ooartwati
TbOTB
aTlba
Imm
tVflIf JVPPitl
loaff ^aoafiaa, lar' Aa laaea <
^ tiffthaatriaii at «ttilMdf«i
aot bouwff that aw Witt SMI aaid aal
il, hi OTior to Ma toM at fiaMi
awiitto ba iMMd a«t fhr tbi
in ga3, or at kiot to aqoliii
TJM?' presatUHOffs aadai Hiadlaf tliiti •■
tho Idee writ at their inttanee : and Mr.
per was removeil on that writ, lest going
own writ should have shewn too great a
donee in hb innocence, which was ac
endured.
These lew steps of the proceedhig,
many of the like nature (which are omi
avoid length) may serve to shew that tl
seciition was far from being a faint oi
was industrious and artificial to the last i
and was (unluckily for tho four geo
concerned) assisted by a circumstaac
material to the justice of their cause, be
riously true : that an election intere
thought in great measure to depend up
rying on the accusati*m : which w
harder upon Vlie four geotleaieo, Ibr thi
of them were at all concerned in that <
versy, and three of them not so tnudi i
wish one way or other.
Notwithstanding this unhappy juncti
their trial their innocence was so dcii
they were acqnitted, to the satisffbditB
indifiererit persims there preoent. "^
After the trial, which was aft- tbt
mer assizes, in the year 1699, thdrji
tors, that they might l)e further vooaW
keep up the talk aguinst tbeoe ftNirgMj
(though they had nothing to otjptf fr*
ness ot^ the trial, uor any defect lar^
rati«jns towards it), immediatelj it
an heir male to bring in an apMfe
a^ain, and put th<»i to mHlk:m
keep them longer
for the Murder of Mrs. Sarah Stoul,
A. D. 1G99.
C1I9*
ui infamy on the Tery same evidence,
It any preteneeof the least addition to it.
he same longvacatinn, 1G99, they found
B infant, Henry Stout, (whose name was
ards made use of for bring^iug the appeal)
night have sued out the writ of appeal
before the then next Michaelmas term,
:, in the vacation following^, or in Hilary
lAer ; but their end was purely malicious
Bh the accused with the calumny ; and
3re to keep up the same as longas pos-
the writ was not sealed till the very last
itliin the year aAer the deceased drowned
f, and not above three or four days before
d of that year (the time limited by the
r bringing: such writ), and then too with*
te con»ent, nay without the privity or
^ge either of the plaintiff himself, or of
other, (bis guardian by nurture) without
i approbation the writ, by law, should not
been sued out, nor an mfant encfaged in
I prosecution for blood, which after a fair
tal is adjudged innocent.
Nit a month afler the said time limited by
or the bringing the said writ was passedf,
several letters had been sent to the same
I, which made no mention of the appeal) a
was sent either from some of the prosecu-
pf by their order, to an aunt of the infant,
og the child might be sent up to sue an
I ; which the said aunt said she read to
other, and was the first notice pretended
pveo ; bat the aunt being a^ked (when
natter was examined before the lord
r) if she then knew the meaning of the
Appeal ? she owned she then did not ;
le mother, to whom the letter was read,
ed before the lord keeper, she did not
vaow what it meant, it not being explained
lettef ; but that she imagined it was
pmceeding in order to put her child into
■km of the deceased's estate, or ilonYe
bervof, which the said Mary Stout (to in-
the mother to part with her chiln, and
be nid Mary Stout to prove his pedigree)
dbre fraudulently caused to be insinuated
I thus the appellant or his mother (who
»uld legally do it) were so far from liav-
led out this writ within the year and day,
bey never heani of it till a month af^er,
len only as aforesaid ; so that the said
ros unlawfully sue<l out.
soon as the mother and the infant (the
iff) came ti» understand what had been
, and that nothing was done towanis let-
ie child have an^ |»rt of the estate, but
0 provecule a suit of rcven^t* after an ac-
I, agam<it gentlemen of giMid charnct(?r«,
here no murder at all hud been provi>fl ;
Icclared their utter dislike of the proceed-
id, withniitto much as treating with any
taM fmir persons prosecuted, or with an v
ycd by them (purely from an abhorronce
• action, and their resentment of the cheat
Ml Ihem, and the advice of their friends,
itiBty to food ooiitdeiioe, and their in-
terest, to let Mary Stout the petitioner haro the
proving the infant's pedigree in an appeal, which
was his title to the lands in Mary Stunt's posses-
sion,) went with an uncle antl aunt of the in-
fant, and demanded the writ of the sherilf, ten-
dering him his fee for the return thereof, whicti
he (notthen knowing of any guardian asniii^ncd)
delivered to them ; and though it sliouiil lie ad-
mitted, that the sheriff in so doiiiuf did not
strictly pursuethemandateoftlie writ,' which re-
quires a return at the day in court ; yet the (came
mandate is in most original writs, and notwith-
standing the sheriff never srruplrs to drliver
the party his own writ, with the rctnrn. And
in this case the plaintiff and his mother, and
two of his nearest relations, demanding the
writ, and the sheriff having no notice of any
other guardian, it seems as excusable in the
sheriff, as if a plaintiff of full age had come
for his own writ: but it is admitted the court of
King*s-bench was of opinion, that the sheriff in
strictness is to return his w rit at tho day and
place mentioned in the return ; and fur not do-
mg so, the sheriff was fined and paid two hun-
dred marks.
The sheriff, before the said fine, was, hy or-
der of the King's -bench. €*xamineil very strict-
ly on interrogatories in writing, tending, among
other things, to discover how far the 'tii)pellees
were concerned in procuring the writ from the
sheriff; to in hich tne sheriff an^weriHl on oatli
fully, in writing, and very truly denici all cor-
respondence with the api>el!ees, or any on their
behalf, touching the delivery of the said writ»
all reward, or promise, or security ; and, in
short, that he never knew of the appellants and
the other persons coming to him, nor any ways
had heanI thereof, till he saw them : and then
delivered the writ and return (o them, as be-
lieving it fair and lawful so to do; and for n(t
other reason whatsoever.
Notwithstanding the petitioner preferred her
petition to the now lord-keeper (by adviee of
uer counsel) to grant her a new writ of appeal
in the same form, as havincf sufTiricnt autho-
rity so to do : and the (.a:;! infant, the appel-
lant, and his mother, prcferi'ed an(»tlicr petition
to the said lord -keeper, disowning the funner
writ, as sued forth withuiit their consent ; tlut
they never knowingly approvcil tht'iTof* and
desiring that no new writ might issue in ilie
infant's name: and the lord- K»»rprr, Mnff as-
sisted by the master of the rolls, the late lord
chief justice of the Common Pleas, the loni
chief bar<)n, and Mr. justice Powell, one of the
judges of the Common Pleas, the appellant and
his mother appeared, and owned their fu'uh pi'-
titiijn ; and on a full hearing on both the *«:iiii
petitions, anil counsel on Imth sides, the said
lord kwper, master of the rolls, lord chief ju-*-
tire, lord chief baron, and judge Powell, were
ai'i of opinion unanimously.
1 . That the Chancery find power to relieve in
such case, and renew the writ, if it were just
so to do.
2. But, that in this caie it was not just or
reasonable.
f
I The reasoni thetij lud j^, tngUted on to
^mabtaia the latter of lljeae [Kimts, vtere tdese ;
. 1. Betiause lUc apjicllant iRfWil, or his nia*
theff guardian Uy uiirture, had no naike thai
the writ w4S stieu out, lUI abo¥e a moDili alWr
t|ie jear and day past ; and cuiiKefiueRtt^ the
wril was never well sued out: it beitkg m no
twd^^'ji power* hy law, but I lie appeHatii's^ to
«iie out such wilt ; and id case of iiiraacyi as
wdL as ill t!tc ckjm? of (tii a^jpdbnt of ivU age,
the writ is sueiL out in the persnn nl' the appet-
latit, and ishoulil be iiona hy iltc conaenl (if ht»
next ffiends ; and no guardian af^igned hath
any thing- to do thei^with till tbt: tvril be
3, Jlecausc it apitenred, that im sood m ever
thi^ appellant ami im mi3/lhut knew ivhat was
doin^» they fenoimcril the s»id wiit. aud, to pre-
I ?ent prWcutiug- the same, weol a&il wilbdrew
it frpin the shen^, logt?ther witli au ancle Atid
aunt of Ibe infant.
3* Because the aprieKleo^ were none of th^m
in the least privy to tbii U^jitaction, noe did iim
petition pretend to prove or alleilg© (Ut'y were ;
But on the e4>ntrary, the sh<;riff , having hem
examined on the strictest iiitetTog:ataries th&i
could befranied, had, on hUoaih/acijuiUfcd all
the appfllt^ff^ tVoru baTiui? t be least tM do in (but
matter^ but thai he did it as couepiving it law^
ful and n^utki to ddiirer the plaintiff in any iic-
tiOQ bh own writ ; and not kuiiwint^ at that
time tbat any guirdian was aligned to proie*
cute fhi? sain«.
4. It IB a maxim it) law^ that what is done
amongst others ought not to hurt a thinl per-
ion I and a» the appellees would bare been de^
i^y&i and kept under cat u (Any by Ibis means,
without Ibeir fault j so do stecunty could bu
giren them that the new writ should be literally
the same with tbe former, as it ouglit tu be ^
and no writ being now legaUy to be pro$«t:ui«d
ajgain^t them, they ought not to be deprived of
the bene0t and protection of the law, without
any act or default in them so much m pre-
tended or assigned by the petition,
^. Tbe infaiit by law plainliffiu appeal, has,
Dntwithslandtng his guardiun, such power over
the iuit, that three eates were cited wbereiti
the infant wa» by the court permitted to be
Doosutted, without nud agaiiiil tbe consent of
the guardian ai^igned lo prosi^cut^ ihe same;
and no instance is to be foun4» wherever an in-
fant was denied so to be noo^uited,
6. If an iufafit may depict from prosecuting
a wnidependingi without consent of bis guar-
dian asitii^jiifd, jt is much more unreasonable
sDcli |j;:uardim) assigned ^iiould force tbe plain-
tiff to have or sue out »t»ch writ, eaipecially to
be restored to it whether he will or no, in an
extrnordioary manner^ which reason i« en-
forced in ihiif their uup^ec^denteil applying to
the jegi-^tntive power in this matter.
T. To make good Ihe lait rfasoUi a petition
was pr<fterred to tbe lord -keeper by Ibe plain*
tiff and hh niotht^r, againit Ittiving fhe writ,
and diiowniiu^ ihdr ktiowledgo of the eQectof
die tbrmer wht^ and both^ with an uncle and
196] 1 1 WILLIAM ra. Tria! nfS^mctt Cowper and f^ihm, [m
«tl, IK '
'"1
aunt of the plaimiffi appoired tajgitifjtiiiipi.
tition ; and the woman avoftd, ditlwtieflik
partetJ with her ^on, to sue the tpj^l, h
thoMght that it WJt^ in order tn obtaib lU '
cease^r* estate, a^ the |jelitio(iiT M fi
lently induced her to behtte,
3. The appellant and bis mothrr mud,
that the infant being heir si hvf tt> tbe ^
t^easerK and so entitled to her cssiite naliiiMi
way diverKnl by will or settlemmt («»bid Hi
petuioner wtmU never fatisfv tbrm m>)iii4fc
petatiouer, with her aim Jobn 8iaul, tirnfi
pssession of that estate^ tb^| tb^injjhl k *ff
improper the petitioner should have tbt
the nlaipli^)^ pedi^^rcc in an nppci],
was his title to an e*itat^ lb« ju'tititioer hM\
him J foT rQt'Oir'ery whcr<»ol^ tbe iafanl *n4l ^
mother, aa guardian » preferred th^ir biil I
Ciiaacery ; whicU suit ts giiti 'leiHrndioj;,
These Reasons were enforced by st^Kfilei^
stderations, shewing, ttiat this writ «f t[f4
of allothera, ought not Ui \m tarourd;
! . Because sued out cbudestjudy taiikm
dulentiy, m flft^resaid, bj <^e who hd 9
Iiower.
a. Becaoie deferred two whole Iitibi
the acquittal ou the iud^nient, ftod uot
lill the last seal, about funr days wjibm
year ; which sheiA s they did not 4e«ip ji
huttospinoula scandal a« long a^ tlitjr
maiiciously and vexation sly.
3. An acquittal on indtdment, wast
an appeal at the onmmon law| s
th^t har be taken away, stal. Ht T. (wl
in the iudictnicot withm the year and iltf]
peraona should procure theasselFcs to '
quitted oil iudietments by Jaint proi^c
yet, fiiuce thi^ prosecution was far frrna
tbe appellees in thi^ case are ivithiu ibc
und equity of that pka ; and the
that the petitiuuer, who would |ir«i
anp^K wita the principal proseotftof of
dictmeni, atul did it with all imagijul
dujitry, aisistcid by the united iuiercst^
Q,uakers, anil the prejudice ot' a party'
town of Uatfordy di^bliged on the
elections.
4* Appeals bare not been ^rouctid fisoii
Stat. H. 7, eirceut in caies of couticti4ti
pardon obiiuned by surprize, or afVr sotna
or fi"efi|i discovery hy additional en'
wfaich neither is, nor can bo pretended,
The case or Mm. BURY STOUT, Wrs
In March, 1699, being within the spwsi
y«ar after tbe sup^joi^d murd^oj Mfs^ii
Ntoiit^ a writ of appeal was sued osi if J
high court of Chance«-y , aj^ainst HpimGtff
f»er, esq, John Marson, Ellis Steveosi 9mM
iam liog^ers, geutleuif n, tn order (iar *^
of them, at ihe suit of one Henry ^^lo^
law to the dtK^ea£edf and tb« appsli
in the writ of appeal, who nt the li^
out such writ was abotit the a^^
Mrs.^tnul^ the motl)^ vf lli«4
iuch appefd wm soed i»iil» t
I
lo one Mr. Boelock Toller, ll»e
nff far ihe cowoiy nf Hertford^ b
^€V»»- his ai>(*rebem1in!5 of the appellees
>^«.l in liie flail I writ. Anil itie fearing
•^oulil \m ^-ilher rerobs or unmindful in
Om^^ ^seciitkiD ihereof, some short time
^% » ^ ssenl Ik oei^bbour uf bers to M r. Toller,
*<t>^*r -v^bat he had done, or would ilo» witb
I'^^t'mt ^ Whether he bad txecote<l the same,
f ''^H . ": 1 be would retUTu the parties were
' ^* ind ? Which message was diily ear-
^* ^* H.H a particular account, that Mrs. Me r)'
^^* tlie mother of the deceased, was ibe per-
Wiat sent the same. To which Mr, Toller
this answer, * Mrs. Stout is a very
^y » uneasv woman; but however, when the
^ ^^ *s out, I will make such return theri^of asi
••^Ww directs.'
' ' , Stout having received such an answer,
'"►iKTClingto have a return of the writ, ac
r lo Mr. Toller*s pt-omise, ou the iStb «f
ollowing^, was, in order thtreto^ and for
her dvsigneU prosecution of the uialtpr^
dmitted guardian to the a|»|i«llaut \ ond
on the 15tb of the «ame mo nth of
I bem^ the lirst day of the then Easter-
tip|>eared personally in tlie court of
N-bench, in order to arraign the apjielh-'es,
♦'i" under-sheriff should have return etl
uch attendance of Mrs, Stmit» Mr.
was fre<]tiently called^ pendiniij the whole
• >r rhe c!Ourt sate, (the writ bein^ then return-
f make a return of the writ : hut bn made
J and instead thereof Mr* Marsoo, one of
*. . -• ai^pellees, appeared in court, and prayctl
' ^Jlb^r to be arrai^neti or disL'harfjed ; though
I writ was not then, or ever rince, seen or re-
in court : so that stieh Mr. Marson^s
k ftppearinif only to be a shew, or bravado,
or advanta^^e beinfir to be sustained
I to bim thereby, the ^ame was re-
i the second day of the same term, the
of Kin^^^ bench was moved on the he-
' of Mrs. 8iouf, that a short day might b-^
l|>p<»itite<1 pert-mpforily for Mr. Toller to make
, ^iji return. But then ^though Mr. Mur^on
of the writ of appeal's coming to Mr
, tt band, as appears by his prtiymfr an ar*
t'«iii|{oment but the day before) it wai; sujr^t^^ced
»ri rotiri. that no writ of u|»peiil waj fevt-r left
' , 'INdltr a^^aiuft the appellei'S : and
suirtrt»*tion, Jfrs. Slout then lost the
t»._ ' I, and was forced the next
tie t of the dehvery of the
.Writ, HI Ml' ri!io!^ly did; and there -
^lipon she itk h fur a pereinptory return,
^tea '^'^^ ,i ..ii's f*?«'tipt of the writ of
"^pprJil i^'d, and tht^iUfioii a rule of
^ouft I - i '•> compel hun to appear, and
tii«kc a return of the writ ; v%bjch rule was
nt r^ iHil, and thereupon Mr, Toller sonu after at-
[, and by atSdarit informed the court,
L)»nn the l<ith day of the same month of
^pt*l (which uati a duy after ihe return of the
Wf Ut »M*i Uiree days ailer Miii. Hiry IStaut was
admUted ^ardiao to the appellant) he deUrerel
up the writ into the infant's hand.
Upon wbicii account given by Mr. Toller;
the court of KJngVbench ordered him to 1
examined upon interrogatories, touching tt
delivery of the writ ; and aecordiogly Mr
Stout the guardian prepareil the same, bi
could not without considerable difl5culty gt
him examined (bein^ fbrceil to be at the cbargi
of t"0 or three orders of court, for that purpi
before he came)* At last his examination w
taken, in and by which be owns the receipt
the writ of appeal ; and thnt lie was informed
that Mrs. Mary 8tout, the rnolher of the di
ceased, prosecuted the said writ ; that she scf
the same to him ; and that the infant, the ad
pellant, was a perfect stranger to him, when in
delivered it into hiK bands : but then, to extB
nuale the matter on his own behalf, the reaso'
he aliedges in hi^ examination for sucb his 6&
livery^ are, that the appellant came with tbi
mother, uncle, aunt, and one Mr. Woodford, a
old acauaintance of his, for the writ ; and thi
Mr. Woodford informed him f»f the reality *
the appeltaul^ and his relations *, and deliven
him a note under the hand i»f William Cowpe
esq. purporiiukf the samei that the inlant w\
the pluintifT in the appeal; that one of tbj
women was his mother, and that the other m
and woman were his uncle and aunt ; whie
togellier with the ready answers they gave
»»uch qtjestions as Mr, Toller osked them, i
dnced htm to believe them tfj be the real pajf
ties; as to hiseximvination he sets forth,
Mr. Toller says I'urthifr, That on the 36th
the snme month uf April he desired the iofanl
his mother, uncle, and aunt, to deliver him bat
the wnl ; hut they det^lared, that the infaj
With advice bad burnt the same.
Mr. Tidier in bis examination gives this bi
count ; That some short tirrjc before bis receti
of the writ, he receive<l a letter Irora Mr.
Cow per, to know nbeiher any writ of
was come to his hands ai^^aiost Mr
Cowperj to which he answered th'
none : that some short time after snci
was eoroe to bis hatids, be received anothi
letter from Mr, William Cow per, to the fiftn
effect as the former; to which Mr Toll
nnswered tliere was ; and sent him the contenl
of the said writ: that after sucb writ came
hi*i bauds, Mr, 8pencer Cow^ter sent htm
letter, to know whether he bad received an;
writ agatnst him ; to which Mr. Toller iofor
e\l him he bud. 8o tliat by Mr. Toller's o'
examinitjon a perfect correspondence is owaedi
and an iutelligence from time to time, and froi
one party ti> another, is given,
Thui upon thi^ last day of the said tern
Mr> Tuller^s examinntion was i-eported to tl
court of Ring's- bench ; who, upon bearing tk
same, were of opinion, that he was guilty of
high misdemeanour, and was in contempt
that court ; and ihereujMjn was committed I
the mariihal, and fined QOO markis.
That Mrs. htout having received no aatif
faciioQ for the blood of her daughter, by
8
anl
3
y^} iLipjiAM m. .:.Tnri,^JitKm.Cmmml0$^
under- sberifl'^s betiij^ lo fmtil^ did jtelitioD the
.jM)W loitl ki-efi^r *ui' ft Dew wrU ; llie time
ri|p|||g dupsied then for the ftmn^Aut^f another
PikWirife: iki tvLiich litiH^ also Ihere was « cr«3si
^piHitiOD prdWiTeil ill lU*- lutknt^a uattni^, [irajrinefp |
that Do urw writ of aji^^eal should be suect out
in hii 5am*. Aitd th«* suJyc^t maUer <>f bi»ih
petULons being il^bateil bt^Jbre the now lord*
keepeiv the m^ler ol' ihe rulU, tht: late lard chief
jjiifiiiije Trehy, the lonl chief baroQ Ward, anil
JUr justice Powell; upi^n «uch dehat^s it not
Ibtn afipiaarijiofi hj any noiilivt; jiroof, that tlie
apfiell^ea in the writ, nor any of theni^ were
|ixivy to thu dee^tfUGlton of ibe writ - it was
^ tlierelbre thought b^rdly reaisonable that a new
, itrit should be ^ranteif ; which was a ipreaL
£8Ui£ of Mrs. Btoul'« pi^libifni heitig rejected.^
Now Mrs, Stout^s petition was grounded
i pyrelv u|>0Q aiiotbi^r butioio, (lihe not imagiu^
iRg that such an Dbjection woa)d have been
started) for she was atJ^ii^eiL, thai if jusiice b;id
W&n obstructed^ wbellier it bad mtea by ac^
cidi^nt or design^ in titb«r f&«e a suilabk
remetly might hare been l^^nnd t as, sup-
13051 n^ tbf!\vnt ofappeut h»d been acddantal-
y by rut when tn ib^; i^lierltTs custody, as it
^really w&& wbeii it was ont^ iu respect to
,haTe a discovery of truth, tlic; court, which
p first gave the writ {^be viav advi«etl by conn-
\ iel karncd iu ibo larv) could supply ilit' )o^
of It.
Had she imagined that yi Uie appellees
wouM hare so much as iostanced their total
* The Case h reported in lord Raymond and
other books. It is obserrable that great men
have entertained different opinions.
In the Report of the Case (Stout v. Towler),
in 13 Mod. 373, (8ee, also, lord Raymond's
Report of the Case, Rex v. Towler), it is said
that Treby, Cb. Just. C. B. and othera, alleged
that an appeal was a refeogeful, odious prose-
cution, and tlieretore deserved no encourage-
ment
On which occasion, Holt, chief justice, with
great vebemence and zeal, said, that he won-
dered that any £ngUshman should brand an
mppeal with the name of an odious prosecution ;
that for his part be looked upon it to be a noble
proaecntion, and a true badgis of English liber*
lies. Hee per contra the Case of Bigby e v. Ken-
nedy, A. D. 1770, reported by Burrow.
Lord Nottingham, in bis ' Treatise on the
King's Power of ^franting Pardons in cises of
Impeachment,' (see a Note in vol. 7, p. 1624, of
this Collection) p. 19, sect. 50, says, * An ap-
-peal of murder, because the king cannot pardon
It, is therefore an odious suit in law, and is tied
t04nore strictness and formality than any other
■nit whatsoever : nor do any of those statutes
which were made on purpose to en re deiects of
form extend to appeals.'
In the Case of Bigbye v. Kennedy, as re-
ported by Burrow, the proceedings on an ap-
peal of murder are set forth' with great parti-
oularity. Sir l^lUam Blacfa^onc, in bis re-
ignorance as to lh« destniotMm of the ^
could have much betirr preparrd N|
hare gii«^a tbt'Oi nti answer ; «h<t
S4?i forth Uow tlj<i iotknt, his mother^ {
api^Heeh' altomey» wrnt in a
harsiji to the unit««^-&h«riir at H*
there lt>4>k the writ of apjieal fnifn
trom thence brought it it» London ;
have inHinBeil the court of a mor« p|
inteUi^euce, lately cont)rmed» eottoeif
destructtot) of the writ« by wboae ordci^
whose cbarnSer the iumc was bariit i
matters, if yet exauiineii, will «a|
eviuce wh<^iher the ap(>elleeb» or sdii^
ibem, wei< privy or not to tbe deMr^
the writ, i
There was an o^ijcciion agaiosl Mrt,
petitioti, ttiat the writ of appeal wu am
liued out (tbe infant, uor hi» inothrr^ d«I
lug of tlie same tiU afti^r wards) ; l^ut |
b^des thi^ proofs j\ln. btout coubl liif
to the contmty, she wac and is »titl i
that her being duly admitted guanlu
free cooseiit of the inf«ot (ihougb in
in time to the suiug out of liie writ), I
in taw is very aulheotjc, and taake»
well sued out^ And it is presuiiiif(l« I
person will say, that the lord-kteper,|
other judges, did ail agree to tbc* Qt
upon debate of the niattf r!» bdHre ltirt%|
It was mightily TUs4isted upon by tii|
sel lor tbe appeheeSf at the bearing v(U
titiocis^ as il' Mrs. ^tout should i^iiiey
_ ^
pbrtof ihatcase, says, ** I wai prcs«M
Obi Bailey f on the trial and conficlkia
ap^>ellees in February ; and it was m
inoiit foul murder : but, lb rough the p^
iriediaiinn of their ahXev,. who was ii^
coun<^cled v^iih soino pci'sons of §iialiJ||i
ilitioiml iHirdon for transtwirfsiti^n wm m
for Blaitbew, who bU-uck tha UiyiAit
was on board a tender, when tbe SM
exiiibited at the Old Bailey. PMrickhs
respited two or three times, on tbe vcn .
ings appointed for his execution. Aai l|
peal was at last taken up and prosecnirf
set of persons in London, who wers is'
opposition to the government; msr^t
an odium and popular damoiur, on asDi
so unadvised a pardon."
Of these Kenned vs, I received iktU
account from the late ezcellant ar fl
£den : '* When they were tiaaMrtail|
rica, tbey got thither to Bf arylssi fp
my father was governor) with i
recommendation to mj father
rank in this country, I suppose Is i
from the coast, where thej y
more particuUurlj^ known as
them was drowned in croiniig ;
and the other (I have beard "
secretary^ was some time silSi
in Ireland." See more com
murder in Kelyng's repsiisf |
strong 0. Lisie. SsesW!ni|
lsf>l]
fur the Mnrdtr of Mrs. Saroh Stout.
A. D. 1R99.
[1202
b# sdinittcil gfuartiiaD to tUe infant^ only to
|iiroi«*rt hrr cstnte ivotn Ihe iufiuiY, and tlinl
wtUifHti Itie privitj' oflhc mfanl\ inotlier, or
mn\ r»r his relations ; but (l»esi«!e» ilie Tcry ad-
roit lance iliteir, wliich is purely for pros* run uij
ibw )«(»|ie^l, and tor nothing c\^^) Mrs. 8tutit
%«vii iilii'iiys leady to discover the, titio nf her
•Intuit! ; ami never hut decbred, tliat ihe iid'inl
llBil no rit^ht thereto ; und as tu the itduia*^
iSMi^tier not knowing of Mrs, 8ti>iii*s*di?.<i*rus,
it is rery easily atisvvcred ; for it i« not otdy
0«ii>rn, unil lUc aHidaviui tiled in the Kirj|^V
bench, that .^Irs. 8tout wtiJte to the infant's
imilher what her designs were ; hut also a par*
lii^tar account is in those atiiilavits set forth,
Jmvw wilting the infant's mother wan to send
her lion to Mr^. Stout, ordcrinir one of his unel^«
lo carry hhu to her, for Mrs. Stoiu toilo with
liiai iiH her occasions rc*«jiiirefl ; itid ivithal, di*
l«pting- such iincte to ddiver her son to Mrs.
Slont, aad to none but her, and to do accordin«^
to hrr directions.
h hath commonly been reporled» as if the
|itf»6cculioti in this u[)p«al hath been purely
LiOiH, be|^iin by a hiMiy of Quakers^ and
' by a faction at Hertford* a^Inst Mr.
's mierest. But uhoc-ver the fotnai-
spreaders nbroad of such reports are^
would do ^fell to consider, if it were their
case, to have an only chilil mnrdered.
her reputation rend erect infamous to pos-
1^, nhetlier nature and duty would not
e thera to use all means to make a diiiscy>-
of Ihc c^iise thereof? And whether they
M not think it hard to have their own en-
Ivourei redecteti on, and their utmost dili-
irr accounted to be the cause of a parly ?
II bath uIko lieen reported, and perhaps by
leof the appellee^ may be object©!, that
▼cry* method in the process of this ap|veAl
l)«en malicious, in d«hiyin^ the suiii^ out
lie writ, until the time was almost eUpsed,
lo keep the appellees in an uneasy
>nBe. But in answer to thiit, it is con-
tliat it tvas much longer before the writ
u sneti out than was desired or ex-
befiaufie it was near half a year betbre
8tout could 6iid out (though sill that
lie she maile a diligent search) the proficr
Sim to make an u|ipcllant ; and idler nhe
ii\%ii was forced to examine moMofihe
[tsfcrs in l^ndon and S>iithwarlc, to make
bis pedigree; and which as soon as i» he
Ihe very next day sb^ caiiheiJ tlie
appeal to be sued oitt: so that it was her
toe, and not her mntiee : it being
the nPTf^fsity t>f so Joiip- a delay-
i commonly nrqpp<K hs a strT>n^' arg^ument
hinfil a svctHid inul of (he uppcllees, that
ts no utw evidence that Mr*.. Stout hath
kinst them : hut stteh persons, whoever they
mil oiily aAKei*t what they uro intaUy ii;^nti'
of, but also conclude,' that Mrs* 8tout
a cfreai deal of pleasure (especially now
^Jier old a^e) m txnn^ in a conMant fatig'ue,
consider abli* expence, purely to be render-
ridictibtiK to thcHoHd^and unoosy l<iber-
VOL XIJI
self, tn the fresh and daily renefrtTs of he
great loss. In ati«wer to w^iich, she is au(ti«i
cit^ntly assured, that she t^oes and acts by i.
principles and designs ; and that she hath na
material evidence than ever yet was mat!
public ; and that site beheve^ the appelle
(ihongfl) tliey pretend their innocenry is fene
providenttally with such circumslances as iha
they nenl not fear) do not care to come to lb
test ; or «be why should tliere l>e so viiron
an opposition ag^ainst so plain an act of justice/"!
if there was no matter of fvct that could b|1
proved a&^iust them, nor no concurrin^
circumstances that would any way
them? (as they seem to insinuate.^ It wouK
ba?e redounded much more to their honoti^l
and reputation, and have wiped off all occasio
of reproach, if (mstead of so mean an under
minin^^ of ju^tice^ in the destnietion of the wrij
of appeal) thr*y had undergone a »econtl trial i
It being impossible (ihccordinyf to their own
sertions) fur them io miscarry, or be foun
g'oilty. All persons must certainly knoir,
that it would be no prudence in Mi's.' Stout i
dirul^e her evidence iKffore a tnal ; and ifsh^l
doth but act prmtently, for any therefore
alledge she hath no proof, is purely to speii|
at random and at a venture, ami ought lo f
regarded accordingly. [But this affair came l#J
nothing.] 1^1
THE HERTFORD LETIER t H
CONTAINIKO SSyERAL BRIEF 0&!%£RVAT(ONs O^
A LATE PBl?tT£0 TillAL, CONCErt?«IMa TUf
Murder of Mrs. Saeau Stout. /
Sir;
I am favoured with yours of the 20tb olti J
whereby I perceive your pleasure it, thai l|
should give you my sentiments concerning 1
Mrs, 8arah Stout's dealh, the tritil, 'Uc, lar]
answer, 1 am very ^n^tible of my own wealc^ I
nees, and how unfit I am to enter mte a contro-
versy, wherein so many doctors have been wor«
ged already : nevertheleat, in obedieoee 10 1
your reiicratetl commanils, (though m doin^ iti
I may expose my own i(^norance) t shall giv#]
you my thoughts concerning; the natural caos6.{
ofdro%vnintf,Hoatingof dead bodies atlerwards, I
the various sentiments of the doctors, tb#i
manner of her detith, the letters produced
comtf her melaneholiness, why no mfotiou watrl
madeof the money ; and lastly, concerning twft
public experiments, w hereof one w as made I
and the other in the river *»f Thames.
It k a common observation of most people j
not used to divt% that upon their ptun^nt^ lhem«
selves in the water, whether it be rotuntarily
involuntarily, they find a g^reat confu'«ion
their spirits ; so that it is morally imfKivtibIc j
for them to regulate their actions in this sur-
prize, by the dictates of reason ; in thin con*
ttemation, tbey lay hold ou any thiti^ ibiit]
eom OS in their way*. I ' ' it
may contribute to tlv
In thi-ii hurrv of the i^iru% rocc»iiot4«d pstuy
4U '
I
llWILUMinL .TI^^i^mmCaKt0rwt*wmf,
ptrtly tVom itsrtioning \n^ ihei rears, DD»tn1s^
&c,) tbe « biiie animal epconomy ii brong^lil
i^ku d border. Iti tbis eoiituKit^A tt i^ no ways
mersed^ sbould ineiauate ilseW into tome vaou-
lliat, no vray^ adftpteJ for Its rat^eption : and it
being obvious to fill, ihai no m&n tjotti, or c^n
lj?e wUhout iies^iratino, i^bateTer eletnenl
ftoevet he is iti -, if in ihe air, be swcks diat in,
^liii;b naturally tbws into ibe Itingfs ^ if iq
^iter, IV bat €Oin«s into iJie inoulb, ai; Longf at
bia ettise^ conUniiei he sw^Uowb tbat itoun tbc
fillet ; »j» long as be dofb not breaibe, lliere
ta tittle duiT|^ernf drowiiii>gi but on tb€ ftr^t in-
apiration, 11 be is hi tlit- iuriiiee of tbe wa.tcr, it
Ii much if be dotb notaw<ow dov^oibe win4-
mpe (wilb the air) some suitJl t^tiaiitity of irater ^
but if be it totaUy tmnaefaed m it, it ii net
imppobabte, ^bat npoti inspiration^ a f»r greater
quantity of water lb an air mH enter iiit^ the
«aniy of ibe lungi.
In eftty e^spubJoa of air out of tlie lungi,
the epiftotti^iB titW up ; if the nmutb, at tlie
maae ^ksm^ abouIU \m fuLl ot waier, it tstmpm*
ftNe hat Bome cif it will pi»i down Uie wind-
PIH ; an is ohsc^able in Iboae that ic«:;deiit-
mux laiigb labile tbey are a drJnldnq^ if a drop
CaUi ioto the atpcrti arUrm^ it will cau&e a
«ou^b ills', wtiicb Ei a convulsive motloii of Ibe
ImigBi ice, Vflitrehy nature ilotb com in only
- thim U|i any tbiug ibai dotb casualty fail u]>on
tUem ; by tbis atrti|^1iTig of aature, to eac[ie1
tbc water already sUp|>ed down, the epiglottis
ii titled upf anil instiead of ejecting the water
just swallowed^ tbe mouth bemg futi of it, a
gT^t deal tuore force! b itaetf down, by its
fiatuml ^avity, which gravitated tbe niofe by
Tvmmi of tbe cylinder at cone of tb« air, that
€t>iicjnually pr^setb oti ila superictef. As soon
as the scusas are gone, the epiglotlia b kept
open by the force c>t' the streaui that runs into
tb& wiod^pipe, until the bronchi a , and all their
ramifications, are fiUcd : as kmg as the seusea
cckniinue, they swallow tnosl of tb« water that
Gomea into tlieir moutlis^ into thttr atomacbs;
but when they are near auflbeatetif tl^ water
runs into tboie duetSy where it moetfl witb tbc
leofit resistance.
So long as Life cnntiniiest tliereis aconvnl&ira
■tru^^gling of Dature, to expel out of tbe lungs
all those ibmga that are noxioot to tbeui,
especially water ; being never uaed to be recep-
iadt's for aoy thin:^ hut air, ibey use tbeir nt-
UkoU effortii to eject it, by a riolcut contracting
their lobes nearer together ; by these exorbi*
lujt contraptions, tbe water contained in the
raoiiGcauona of tbe broncbiaj &c. are aomep
times forced into tbe cavily of tlie thorax, either
by dibitmg tbe jtoresofthethin membrane that
inveat« the lungs, (as quick -silver is forced by
the tireicture ot a band through a piec@ of lea-
Iher) or by tbp rupture ot th^r luaicle, or by
tome mrnute vessek, not yet described by ana-
toui(i»i^. If any practitioner in pbysjc^ He.
aball assert, that anatoftiy is brouglit to a ne
|>^ uiita^ aiid tbiiiaU diiclii Ihcuvgh wbicb
tbe jaices of animals at^ strdnedf are dilc
1 would desire f hem to tell me tbrougb
vessels tlie pus in an empyaaip WoQ
matter liej ou tbe midrifi', urbiea tlicfe'
uloer of the lungs, is expoot^raied ^ or lb
what pas^ges whett ii h carried off by
it is conveyed into tbe ki<lney^| or !io«
injectbns cart into the thorns, ca» iff^
mouth with its taste (as the ohsrrviii
physicinns dodenHHislraie); or let ibei
a tre^^ti^ of Robert Boyle, caq. called N«
periments Physical -Modlailicatp toncbii
spring of ibe air \ wbefe, amon^<l
€uriou4 observatiouM about the lun^x^ bet
tbiit the diligent W alliens ret^ilps^ Tb
diveiB times, < divert ed in the dissection i
bodies, Uat tbe membrane tbwt tuvf«
Itiogs, had pores in it ai big as tbe kiQgi
of peas, p, ^:4S.
Wat^r is as frequently fmM ia tba '
of the abdomen, m of tJbe tborai | I
what ducts <ir passages (iNbea tb«*
visible rupture of tbe i.'nai^ of tbe MQm
gnti-jit is can led iliere, I leave it loihti
M^pLcal aaaiomist to determine ; I cooe
enough tor riie» at |»resent, to tdl you, ibi
fact, f am cotiscbt» you are not ^
that tiieie are many thiogifi that ha|i|iettt
aoimal aeoonomy, that cannot be piv
priori : yet when Ihej are a pmtcriai,
are admilled by thest^^uobi aj un^eniaUai
taenia. If an^ are » seeptieal ai l»
what ts not capable to be fvot ed o fri«St
would be put to it to prove tbe circuta
the blood t nootion of tbe a nimal spirits^ or «
or bow the chyle is trau:»colated tbroegj
eoats of the gutSi
Aft soon as ibe lutigv, aloQttcbt Acdii
of water* the body naturally ayiks, sod di
more, until there la a puir eviction m fk
ward parts, which iu cold couiitnes ill
thaft in bolter regions ; hut the ^oiMr ]
faction is begun, ll^ sooner the corpse
IV hereof no oertain calculsuioa can be
tlie tim^ of tbeir rising difierimr, ^i^ 1
to the regioDL, and in tbe san^e clinali
respect to tbe sea^ous of tbp yeiri ii
parts, according to tbe oommuti reetaflj
Aoat in nine or leu days*
The comtuoi) cause assigned for ta
bodies drowned, iSt ^^ breaking af ll
which you know in a vulgar efttrr; il
need say nothing in opposition toil; ibi
assigned by the modems, is iiuiiiiftrlii
how this pufriilacyoti reiideim iba Ml]
buoyant than it was bclbre. Is itot#i
every eye ; tb«d^f« I aball flat .1
Ibougbts conceruing its modm mpmk
Uefaction is a species of fermentilMft.iJ
mentation the air eonlMned iu tbafiM|
breast, body, stomach, <^k% thoqi^^'M
full of water, yet tbe^^ ciaitaiA 8i*fft9
of air, which m raritied with lEa^'^''
proportkonable to th e degreivoCpail
this iui^ensthle dilatatJtMi of thi
graduitUy, unlit %\^ cor
paaiaga tbfiOMgb th^ifcwi i
fit the yftmitr f Mrtm ^^rak ^icm .
\. D. 'K99-
■w 10 iMliu in cirrau w*im irsi
; iftw h0 htth lain some -vpeiis n -n*
i be tt Inst 30 or 40 inches latti^euin-
iMi gndioai aUmairan «it 'tie ^^ouy.
2 it the mIc cnae of' :ti n«a^ 'o lit
■ ttBiraicr. aAer woe >.*eftiuu s.tiiie,
will Bore or liav biiovaniD«s!i otter-
■•9»W
%4k«.i
I I'y ywi »iiT thfin^its ODcerniu^
^w AnwMy/ot' the duatin^ -it' itHi
■'■■■fli ; I shuil aow acquaiut vou
■jtiBm, «l^ buiiies thrown 'ieud into
^**>Mifct lod why some are luure
tt httOKUi boiiies, atler
cspectaJiy sodbcaieti, a»
■Be wcwks since Uotii
; became, a» snuo a»
sphiacu^r ausd^, io
« In : lie tMtitrarv . t uw ii«rMia •
*I«IU. lUU a <:Uidtl «'tlVM, »o» .11 i.t<
was 'uruHti 'iio -.re»u .•! -iiaiiuiv
v%iil ^ivitii .'K. iiore iiiiici •«Aa'i .
I 'IO HOC 'wrvfivi' <.o ^'tai .i i!'«i'»j«»*»a.jc. ■«. -
>iouaiir. f'*^e *i..lt^aif> 'iu- nv x^i'^; ;».i'v*».vC^
thttfc :l Wdj. '.: • i M-..HOM, •.»M» :•»» ;H.iNUU .v *.-
waa»« ii' iO»>sui\ c<>aiii Ot,' liV.v iK»i, .li.'.i *Kui "i^*
waitr'ii .luii- !iiii«;s, siDiit«AC4i, \c. kiivi liiai \«k
far M uii'V >i<itl 'iiatie aus -.th^v* « tijou.^ •>4&
-lroMii«:ii |KiM.>u», iiic^ .it%*.t\t lu.nul ^>^'<-is.
quttiiiitie« ul wuiti- III liic iln«a.ti ;ui: i.'« •■a.
>iiti»iieii iiei-suim; |miI •hct«'Of'i..Maail\ . lu Ul t
ii»«> tlieui «iuc oi the vtatei, luiit v>tii oft itio^t.
!iosc or iiiuuili ; that u|h>ii ihcii Ji<«»ci'iii»u, ih%- w
batJ tbttiiil ct'UMilirrubiv i^iiaiiuiiCN «»l it iu ^^a!^
ctttitica of their hiKhe* i auii ilMi a %« i» th^rkv
CQsiracttlieiiiseUi'«, tbr jud«jfiiivu(, that the iiiwarJ |Nute ut JiMUut-^
w eas\' to inj(*ct any i>ersuuk woultl |Hilrit'% lu Icmm ihau Uh m cv ^ ^
time. Uhether thi-M.* ai«; utii u&ul0ftil«U|^
iruth«, I lea%e it tu the drlei auiiaiiMa Ml' |(<k
wlf, aiMl all iiiibiaHifeMi iia«i|iltf lUal havn tiia
aii\ real (uut iiuliuiial)ufei»vr%allMiUi Ott Jif'vtu^
botlieM.
Theii' leariml aiit«yuiii«ti», nhiaM^Mf^ *^<^
vuur aiiil hukiiirM, a« iar a* 1 miuM ^*i^*^^ ^
wan tfi rvii«li:i II a uiuiu i«aa. bfr ftliM/ ^^^'
uu«ly urtfiiiK. * 'riml lw« i
* W«ll-r Ma* ailltli iirlil M itnMTfl 4 ^<*;f .
iriiin any oIimi » •iliuut ag ^
rriiiiia |iri»ai«r«|*fiiiMMM *i ^
iv«« hull \i4u\imA, «a I til MM; Sii - '^^
I'l Miiiik lliirre •»•«
fiiiMifly 111 lliafiitrnf tliWMi IT
|«rratf«fi
IJ. niMfia «|f|||, • ^
k haveilieiii, aa twlure':
^r, the factntiea («ihivh i
en cwamres ar? fiill of water) are, in .
^••■■f by their death some irther i%a\ , ;
r, which, by natnral experiiBeiil«, 'i»
• be a thinund tiineii litfhtvr ttiaii '
J^ fcy tfce tan»e sort of* fXiieriim-iiH,
■ is nliLi led to be but a iiltle lieai iui |
fcr: if %aa ^rant this, which is i-uMly
■tol, h win be no hanl matter I'ui- nuy
HeoMa lobeliefe, that ri»h (wliiih
ny lai]^ cif itiea in it filUil wiih air)
^ If you duubt iIms iiniiifiJiatf Hum-
unma thidies, throwti iIrai] inin ihf
Wi may, for yriur liifititirfioii, i-iiiinuii
M of aeomen, «viio hatr^ Im-mi i1i«. ||,.^i
»eral enga^renKuu wjih il«r. Frri'li.
that have Jjerin ik Ofjiii«-u fuyiygf ,
Hian ihey throw r)i«t »l#^*l urjt,tf^
< they neT^r fay %iij wi-i^iit i<, i|,rir
■k them, as they Si. f>» *tiii» igifn ii
that ail cboae n^^i^Afk .mfh^jUiuMy
iee« iImi:, if lecrMinf: 0*rtt •'-.nUI ^fi^cKi.
lalh.
>iViiiii^7«i. ir a '^sui^i^ A 1ii» 'Hit
'■^n he^ fftfir.
nn*^ ^.: <• II
nr^^ Luir. " :4V I
vaaOi b> lh«/ •'/^•••^ -
w Af i£ra« 't^**^ 'j^
mm
mm
mm
11 WILLIAM m.
l«73
' AJB^ ^ *^ *P^ *^ tJiiuk ii woiiU 111 re fin Ire-
direct luid snlisfaLtiirv tbis tttt^wer vrM to lli«
^iii^tisn, ymt mm drlFrmioe. I ob«eiT€ ft
teocrjil fluciimi), (fivr what intvutbo I ctoDol
divmv) which «fl8, U iK'ther any w»t^ wnyhJ
IT* ujti» tbif ilirjrsu? If ii diii^or Sid not, t can-
i]t»l coneeiii: ^%Uut biftirJit or (*f«jut)ir« li would
be mthis ca*c, ihtjii^ti 1 iiiti apt tu think the
fiictiil^nitii? limt mtcsiHtljij lun«i«» rimy tsM^itv lie
torn by Tiolifijt ruLiqliifiir, nludv 1% ^bfu-ned
%u atk prriaiii t»li&u uiiy thbg: fiilb uito lUc
??oflr llii* foot of Htf diiciiniYc*, Ut stith, * I
* mn 4pt to tiitiikf if ilmre »*ai any quantity *
(4*f wilier) ' in tijt* luii^, t|jp Jtpon^nit**** of ffie
^ |iAt't would huck nil sjiitte }Mi't rif it:^ wlio
puil tlie contrar) ? Bm, dccior. i< tliey bflcl
if ftli« litit tie4^ ilrawn«d; M ii 4k iB
tlirown LKi tl^dt tl»erc ksnofhiag oNrei
thill Ibf it ta fiiMit i ftiM lhi» my i
moietitiintxHiM to llie uoiniiiil
wlifn any lit tbiiir »l4i%«» tli^i Uwj 1iin«^t
ovcrhoai^, wtlUoiit any i*isi|^lit i«» tlidf M» I
jLtid lUr^ filial imm«<<liatdv-
Ttiat slie wus l«4ttitl uttjAiiig Ml 1^ wiiiti 1 1
a init^hty Ar^timvoi with liii« doi^tor Iklii /
ctid not 0ojit ; tml gt^nt sibtr wsi iniy0y
( wfiw! h i» ikiiied Ly *c r **r&l > 1**^ vr«u tb* iw I
HM it in a^*<frtp4t, I thiuk il m* ipr^ler )
thitii for B 4ebt-^uttnl
(wliicli ulioold ftoeltei^ipgiiiiMfipl
two »ic»fic», not 4ib«>f c nioi? ivjc£cs iHaai _
from tht* oUi^-rj to fla«l eil^titiuj, «**»?i*Li»-,
ii iut^ii;lv«l b«iw«tm iliwii- Xaj, on tAia» f j^ ^
Irajy, 1 ibiuk it f^o^»My mynaj^ hr^lts^i^^
i^m^ff^
^*ir.
hv^a nwHUf, ibaii if tlicy hsKl iiicki^ct up imm f Im^j^ ttiat i« luueb bro»di-r th«ii ^l ii timkM Itt*^ t
Bnt fli.s. Stout'si wcfy I'tt'ilvfcv rtrMJr Ihaii usually
tliiy dfi' Hi fliMil ii^rffon*; tiic^iiiirr— * X» in
' tlK^ 4i*>iiiot !i, I Ii4vr- uot kiiovrn it inivd ;'
hnirr yau Luown it ti'i^^d, m to tlit hmu»r W
lirtE, w'^ Ajv «i» iruich in the dark ns UcIVht, 1111-
'icjsv wc tr.Sic your » | am upt to iJiitik^ for de-
ipwtislmiiim
TI1J8 d«H lor ttkiiirs kk *piitiin«nty wiih ' If
* Uigre w*'* a ^i-f il f*rintjiiatioo> a gTi?*t df ftl
* afiV (filter) * wiHild ri^e up in vajnturs or
' HieAiiH, iiiid {^'0 n(f tbiil way ;* titT^ lir; trr*
nuojitot &II witU Ati ^iV iMippost^ I should
l^r-mi liim thne xfanikgr^at ferotentatlAD^ to
he aa lryt% as I am coo ml tut it h false* his to*
fercTire I doubt would not lb I low, vv£, * That a
' gri'at deal flf it Wfiuiri risfi up in vapours i*r
,^ steams, and go off that way , if it should ris*-
tiilo rrtjwifs in tho stumacLj I am subject to
Iwrieve^ that the coldness of the parts through
which the^ muut pass, would coudenSM? them
ay^qii>» bdorc ihcy could get out of the body-
"IVhttl way he means by * that ifray/ I cannot
jinapn« ; i^ it ^a through the |rullet» the eon-
tractiiiLL of thi! mouth of the t^tomach, gullet,
{wliicU as Dr, Gurili says) eontmcied or pursed
up by a tnusele in ihe uaturts of a ^{i^^Q^^^i'i
and tki€ elosure of the Hpa, 5cc, would either
keep them in the i^tninach, 01 else the robluess
of i be part p through which they must tjf oe^
ceasUy pas? ^ would copdonse them in their pas-
fige out of |,be body i if thruugii the gurs,
the pyloruji, the roldue&s of the giit^, or the
f|»hineter aui, woaJJ olwtruct their pois^jige; if
it could be ima^ned that the subllf uess oi |})«se
Tspoure could get throu^^b the coats of the
Mamachr I c^^CMha the coldness of the mnen-
tum pRritoni^irm, and the thickness of the
lonscleSf fatj &c. of the abdomen, would iai-
pede I heir exit out of the body, lu fine, tt
i«?ettis very probable to me, thai if there had
beeo any fumt^s raised iu tb£ stomach by fer-
raeotjkticin, that ihey could net er get an exit
through so mauy inipediuientt.
Dr . n art h tel§ you , t bat M t is i m po^i hi e th at
' the budy' (of Mrv. t§toiit) ' slK>uld have Ami-
' miy unless It liad rested ^ or been inlangled
* jokopfti the itAk^.' T^M i« f emim trut)i|
con tin ue mote or Umm td{giliogi tiil kaim tL ■ hn
laiiiflijd. k'tLyn
lolwcrvr thft jildg^ a»k«l lIiii^»iB* jjj**"'
whetlKY wtkUst in Ihtj t*ftdy »*miW prttdV* iii n*
If e auHWerril, * 1 wiy not ^ fur inimif ^ iii ^
M hey k kV|i flii»h * iiic4 1 f riiiu corru j>tw£, J? P *^?J!
* Bcrtiiigit in v»at«-rr' if be mnm f»AW •' 11!^
dcq* i* etl wi d k*'f |j It a day «r tw<) in M <•
trie*, 1 may admil it ; but lb*t it »''' J^
M% w«ck«. or iiJorr» I ul1«'rly dray i^ 5 "^J?
nol1ccc|t lU^h fron^ |*uJrofat:tiMif«tjf*^^^
it haih little analogy with the c«e «i** ^
bate* ,|^^
* Tbis doctor tells yon, * IJc mo»l ^^'^^i*
* him' (Mr. Coats%iorth) * where h* >^^^^
* was m unified, because hfi taaml ^i**^l '
* quanlity of water in her/ Thi* in S -^^^tjij^^^ 1
for neither he, u«r any of the other ^^T ^^J^
surgeons, that were preseut at her di^ ^l!?S
inferred ihe was mimlei^t d, becay«r >dw^^ ^^'^
i^reat (|uaiit]ty of water in her; bwt 1^^ ^
she had none'at all in her. ^^^ oM
Dr. ftlorley Milh, * That these wUic!f^-<^
* to be the qiiestiotis oi' the greaietl 1
^ arei Whether there t^s a necessity 4
* body' (if drowned) * to hare a grwt 1
* of water io it? And whether botlies
' dead into the water float?' To the fifkt I - >
s^ver positively, " That there i^ no nhsobit^^^,^
* ees&ity that she should have a great iptiit*^ ^
' of water in hen' With
!i:^
^iibiniisif»o« dod^^p
pray tcU which of yoiiropfHisites said tliaiw-^^
an absolute necessity for Mrs. Stuui to haTt ^
great (]uanLity of thaler in her ; thev saidt ikf^
could nut eoocttve that she was druwoHl, tli«^
bod not one drop of water in faer. I f you woolv
have C4)ulradtctetl tbem, you ahouhl barf di-
monstrated to the jury, dlher by rcaMfO or a*
fieri men t^, h(jw a pemou niig^t bi^ ilrunatJ
without any water in them ; if you c^utd bin
donetbisj you had answered the ijuesh^ 4
greatifst moment.
This doctor's diffiirence between ptiMW
drowned by accident or design, I would ftsiier
niyieti^ wii tiaito', » ^1^ imgusj ibpa bit
»1
for the Murder of Mrs* Sarah SiouK
A. D. 1699.
[J2I0
ri
' • for it is cerrain, villi vthatso-
iwan may ^o into the wnter, be-
r i» ball nU'^A hp is deji rived r,f hi» scnseif
w be {ifoverns bimself then, ynn may
To ibtf second fiiieftUoii, be sail h^ * t
Hkf if |}«>f jiet new kilkd fl<mt, it is hy ac-
'^Bt:* it is HH arcidctktiil for bnrties new
> irben I brawn intti water, to si[ik» as it
B jusi drowTipd lo swim.
stun being- askei] bi?» opin5f>n, * If
I be drownef^ whether it ran be dis-
?te*l liix %*eek8 afu?r?' His answer ivas,
iiL 1 1 imti't*.<^il>le to be known :* I am apt
1, tliiit it k iu^iosNihle fire-
wliiU, ami bf*w mnny inju-
er msrcia iiA*] iret*piveiK or what acrndetita
afH»er»ed iniio ibcm foriy-six days after
fierson is drowned ; fnr' nntitrally ihey
I have lieen (lulritied in hcilf that lime;
I'ben the bowels are reduced into a pu tre-
llis inuciliiirPi ^*'l»o ^'an (rive a rational
r^etit tiT tlic'ir former iie«fe. posi-
or I lid been affected? This is
t'-iiiaiut..ii> ru,,.|*e-ns to a druwne«l peraun,
re was nothing^ of this in (VIrs. 8tou( ;
no small aivunienl wrth m**» that she
drowned. I sholl take Ijiile notice
contradicts his brothers, by his afBrtrt-
'bat in drownetl fkTstms the water lies
ita the stomach ami g^ut^ ' A^ to his ex«
T, 1 doubt lie is not candid ; for I be-
kmave heard the same Mury, which was
t-^%^0 men (jnarrel)ing^ in a wnerrv* one of
^*>^ik nji ihe stretcher, and knocked the
k^«>wn; in bi^ fallinj^, he aceidentaUy
t itold of bis adversary, and I hey both
^ the *vaii*r together ; be tl»at was knoek-
^ «^ was not swelled, but the other was
Jaaijriy.
* ^Iow|iiir affirms^ *■ That it is not reason-
^in Mrs. Stout, (bou|^h drowned) * to
^% any thinsT but froth-' What, will alt
fcl>«r turn tn friiih, that a d\ inaf person re*
"ort' he isdrowni^lf It is a paradox
•li^w contrary lhit» surgeon's senliiuents
tlie imiversal experience of the Irarnetl
kleamed jmrt of niiinkind, let the iia-
judf^e. 11 he had consulted Amhro«iC
*y ♦ and hint thought him a rensonahle man,
pi<?ss lie woidd liavc bct*n of anotlu r opi-
n wb*i sailli, * Ihe belly of him ihut %Tas
P^n ill alive, viill l)e?iwollen or puffed up by
BNio ol'the wuter thai i^ cttutnitieil therein.*
pbe whole stress of this g-entlemnu's argu-
B Hceiiis to depend on a stipposcfl difference
itlheri' ifi between perttons that drown them-
llfes, ftnd iho«e that are casually suffocalcHl
f water t whereas 1 am apt to iluuk there is
tie more dtffert^ncet than bclHet n him who
III ih«? halter about liis own neck, and one
It the haniriiiuti forceth it on ; there is a pa-
f of causies, why the effects in the same spe-
hi^uhl extremely difter, is more than my
lleet c»n comprehend : in Ixith I con-
, Lluit in lens than a minute, their rational
uHy ia to esrretfinudy distorted, ihattiotbing
Ispifrregutailyi or by ita dictate^.
I The verity of his private experiments, I
doubt, l*ecauNC when he m&de a nublic one« it
infmuely conlradtctcil bis clande^ine ooca.
Thi»re is n vast difference in drowning a creji*
r ture in a tub, tim^ m a river ; in Biolcing biru
' with a weiiibt tied lo him, and pcrmittiufi;' him
1 to sink by his own ffnivily. 1 am not ot opi-
I nion, that it is ridiculous to expect water in tli6
cavity of tbctfior.ix, thoogh the hm\rH had not
I aufferefl an inipt^slhnmation, or the like, for
reasons formerly assitjned.
Dr. Orel! saitli, He shall only insist upon
what Ambrose Pa rcy relates in his chapter of
renunciarions^ne tells us, * That the certain
* sig^n of a man^s f>einG^ drowned, is an apfiear-
*ance of troth about his nostrils and mouth ;
* which could not l>e, as he declnres, if the
* person had been strangled, or otherwise killed
* before.* For the confirmation, or cont'nta-
tton, of these nositire assertions of this learned
doctor, i shall {jive you the verbal expressions
of Ambrose Parey : < Whosoever,' saith he,
' is found ile:id in tlte waters, you shall know
* whether they were thrown into the water
* alive or dead ; for atl the htllv of him that
* was thrown in alive will be swelled and puffed
* up, by reason of the water that is contained
* therein ; certain clammy excrements come
* out of his mouth and nostrils.^ In the fore*
goin^ parofrniph he gives you the signs, whe-
ther OOP is banged dead or alive ; liia formal
expre»sinDS are^ ' If he was han^iped alive, there
* uiU be a foam about hii> mouth, and a foamy
* and fih by matter hanging out of his nostrils,*
ClUerve this author^ whereon he only insists,
saith. There i^ a toam and tilihy matter about
the Diouth and nobtri!sof tlicin that are hanged
alive. Now whether froih at the mouth and
I nostrils, is a certain sij^Ti of a man's being
tiruwned, or whether it is not incident to per-
^ sons that die- of oilier diseases, any physiician can
easily determine P If you will be pleased to read
t*au)us Zachieus*sQua?stiones ]\ledico-Legales«
I oa the same subject, you may fmd that Ue
I agrees with Aintjrose Parey, That an appear-
I attce of foam about the nostrils and mouth, is
j no certain sign of drowning. By such positive
I assertions of the learned, how easily may the
iii^norant he imposed on ? Oy this you may evi-
I denily see the difference between a witness on
lus parole, as this gentleman was, and 0Qt»
'' u]Min hU oath, as the king^'s iiere.
I Mr. Herriot being asked by Mn Cowper,
what observations he had made concerning this
matter? answered, * When 1 was a 2»urgeon in
* tlic tleet, 1 tnado it always my observatioi^
* when we threw yten over* board, that were
* killed, some of them svvam, and some sunk.*
Then being interrogated by the jud^e, * When
*a body is thronn over- board, doth it sink or
* swim 1* his answer yras, * [ always observed
* that it did sink.' What incoherence is here !
First, * f made it always niy observation, when
' we threw men over^mard that were killed, some
* of them swam, and s»ome sunk :* and almoiit
in the same breath saith, *■ I always observed
' that it* (a dead body thrown over-board) ' die)
II wiLtiAM ra.
IS"]
' sink.* \ am apt to ta of Mr. ilerfiol'i miod,
^it to )h$ fiffit asficrliop, Tb&t Dien kiilf?!] in a
figbt beJHg- tlirotta over-liofliriJ,. srime of lb cm
silok, fitlierg swam j tUose wlicuMsbrciifel ttiitl beHy
are no ways iujured iloiit, but ihi^se wthasebreiiflt
nird btll^' ure iserforuted, so lb ill v atfi y^els i**io
their cavmes ilirougb lUe wouail, I iluabt nwl
but ibey wilL 5bk»
Mr. Bartleit Id Li jou ^ He never saw aoy
bttdy float, lUougli be bad been m seveiiil e«-
^aoiements.' It is reiy probable, he kept kisa-
Keif all that titn^ m the Cix:k-pitf and it uiujf brr
lo^if after dressing the wuu tided j>epsons. The
fittest persona in this cme to giie ib«ir obser-
vation, arc officers and seam^ti, Mr ho are al-
wars upon deck, and oAen obliged to bok (»ui;
and not ^mrj^c^ons, Mf[m are alt the time of en*
g^rmcnt.'i secured in the Loid of ibe ship*
Mi\ Cftinlin smith, * There never vveretnpre
* and greater t^i^ns of the stiignation of hLood on
^ the bod^ of this child, thau od the body of Mrs.
< ^liiiit/ But on u bat parts thts^c ^ more and
* greater signs* were, iv bother on the breniit^
billy, 6ec> not one word. The owther of the
chiid assorts, there wa* not t\m least sign of
inv ^ta^nntion of blood on aoy paj*t ol bor
cbUd ; 8b e bavbg laielv h&d the snmll-poxt
her face where the smiill*uox bad Bujc«4, was
ik;iUi(?wbat discoloui-ed ; Tkut it waa no uQore
^iscolotircd, after her droifinlogf, th&n itnsi'd to
be (wben &ht Mt&s cold) before her death ] tbe
soil of the water doth generally alter the tkces
pf people ; ^o Mrs. Stout was not known by
htt neighbours, till that was friped o^. The
settlefneiits of blood on BIrs* 8tout were dts-
per^dljr on ber eav, both sided of ber neck,
nreaGtt arm i hut on what part of the child't>
body tliese ' more and gteatcr sififna of &ia§f*
* nation' vrere, ha doth not specify \ because
liad be assigned anj particular ptace, tliere
ivere several present that would have coutra-
dicted him. General teriu!! are die fittest covers
for fal^Jiood.
If this gen tleu Oman was not drowned, as the
doctors and surgeons fni' the prisoners seem to
tu^nutite, tbe qja^ty then witl be, liow
fthe came to bdr end f With submission to
|>etterjndgntc[its, t shall here o^er my private
lentiinents concerning it. I am induced to be-
HevCf sbe wd£ knocked down with a blow on
ber Wi\ ear^ from the large settlement of blood
tbere, which, as Mrs. Kimpson swearsi w^ as
much as ber hand could cover, and more: AAer
she WBfi feliert to tbe ground by the blow, it is
probable, with the gripe of a strong bandt she
was ibro tiled ; From the stagnation of blood on
Ikitb sides of her neck, under her ears, which
jilr* John Dimsdale, jnn. swears there wa»,
and from the (settlement of hlood on her breast,
I am incltned to heUeve, that the person that
throttled her, to support bis hand that be
might gripe the stronger, rested his arm on
her breast, which occasioned the stagnation
there.
Tbe circumfttanccs that induce me to think
the was not acceasary to her own ileath, ore
thefie folio^riog : Uer betng found wilbout htr
3
trial ofSpmeev Covptt and ulhtn,
qfSpm
gown (wbicli probably wb» tc^ra in tk ie4i)
and nightrail: her gown ooiikl )3«thi:M|
though tbe river was dilk^ily nkdftTw'
tapes, until about a we^ before tlie Ui<
was thmid banging en a atMis, ttid» L.
miller had cleaned from thetnriilltfl^|
i»n it aliout hall an hour Urfafe^iadbf vil4f^
pose that it was not tb^re then i tt mmi
rags, ^vhhout one of it^ sleev^ Miaeptilfi
wereus rotten as dirt* <»f her firm ; ymmMlm
it (which wai made of a soit ol ^^urwiaiA
and the lining (iv bich was a filk damaA) lii
your fingers, as 1 did i Query, Wbri^isf
or £ilk will niiturally rot so soon iintkr miff
Here is no news of her nightrad yd. t, fil
her fioating; w hereof I iii»U ntidiiiik, b
cansf; it is sworn h^^ several itiifie&Hai. 3 Bl^
<'an%e her belly »**« not stvolk it. A, btxtm
no water canie outW her when Mk4«tfdf
tbe rif er, nor purged out of btr aticrw^
5, Biiivaiifie her inward parts wtrt e«l f*>
Iknl, thougb her on t ward, thai bad mmit
jureil, were ? Wlmh I aupp^te i»W iMfsrii
tbey Hhonld bave continued so 46 ^ ilf
ber death, had there been any naliriiitf
6. Frfim the i^veral dintinet attlliagi d blMi
which is tinusanl in drowned peitoirf i If is
been occasioned (as iocne may ilM)iatfl
blow, which she received when ihuilirr»i# '
sdf iOp I nm subject to ItebeveT tiMt tk i^
oes^ of the watt^r, iu the month of Mi^
would bave hindered its settlemifnl m lU^
taneons parts of the bod v. as it w gei»ti^
ohserved to do j for wfaat b morE teaaA;
than to dip a linen rag, or a pi«w ui )«•
paper, in cold \\ater, and apply to s In^
part, to binder the hlood from settling the* M
From tbe continual disturbance that Mfi. ti«'
rcy » Eis under, both in mind and bodv : ^W
the less, she woukl not discover it till ibt vj
almost frighted out of ber aens»i by ihe fm
as she thought, of Mr^. ^f^ut, if hicb utM
these words, ' lllvulge, conceal notbiaf^' K
From what h sviom by the Gumff* ^^^
their lodgers at the trial, viz. * Mr. Utxtm^
*' hot, and put hy his wig ; I see bis 1>^^
' wet-*- — they came in about 1 1 aad li^M
* Bshc turned me off, but a frivnd of bW
* will be even with her by tliis tim*' — ^W
* business was done — >-^l]o nouhl paiBi U
* word^ Mrs. Sarah 8toitCs court] ng'dd\« v^
* over^ Tbe use money is paid to*nigtfc-*
* You have forty or fifty {wunds for your ihil
* Asked bim, Wliether tbe bunaesi >>
t done ? And he answered, he kbtrrfj
^ wa« ; but if it was not done, il
*■ done to-night^-^-Fulieti a bandfd of
^ out of his pocket, and swore, i
^ it aH fur joy tlie business wis dOoe.^
llie sentiments of the grand jury, ^\^0t ^
a nice examination, were of an n^i^M
she was inurdf^red ; as were setatf'
petty jury, buthy wbotnthey ihdn4
As to the letters produceil fQ
thoughts itrn^ they are not nf a iǤr
uf a spurious production. 1* Beoi^
doth no w«ty iuit bet
ndfd of niV
tone.' 9, m
cbwactw. 4
Joy the Murder of Mrs. Sarah Stout.
A.D. 1699.
[lSf4
lierdolh affirm, the letter sbewn her
fras of a amaller character than ever
srred her dau^ter to write ; neither
•V brother think them to be genuine.
uae Uiere waa no mention made of
itten, till the oommon report of her
rith child (which had been industrionily
•brand by aereral, but by none more
1y than by a nominal Quaker, her
m admirer) was proved to be utterly
Ltbe oath of several doctors and sur-
It had opened her body. 4. Because
ama ana Mr. Archer, on the trial,
[tad several of the ooroner's inquest were
io swear) that Mr. Cowper, before the
r's inquest, being on his oath, deposed,
Mrs. Stout was a modest person ; that
i not know of any thing that was the
of it' (via. her death) ; ' That he did
BOW any person she was in love with,
* one whose name was MarahaH; and
larshall told him, that he was always
nd by her.' Whether this oath is not
tieaUy oppoaite to his pleadmgs on the
rou may determine. 5. Because they
insist on these letteri, when Mr. Jones
Indeed they have produced some letters
at a name ; but if they insist upon any
against her reputation, we must call
itncsses.' If the witnesses then present
1 (who wen seme of the most reputable
town) had been called, to sneak to her
bn, a great deal of that dirt, tliat is
Bt upon her, would have been wiped
cannot but take notice here how seem-
nwilliug he was to expose the weakness
gentlewoman, or to meddle with her
Dad he not those innocent gentlemen to
; wlien before her death 1m had shewn
> Mr. Marahall, a repulsed k>ver, and
rtber, and after the trial, the printers,
\ the trial did not take them in short
iwe fiiioured with them, to be exposed
wM» world.
liconoems her melancholy. I am bdnced
ivey that she vraa no more than is incident
aople that are sickly, or much troubled
he head ach ; from what her maid
p « That she was ill sometimes, and 1
ted it'(nMlaiicholy) * to her illness ; and
w no other cause.' And Mrs. Walker
■art. That Mr. Cowper told the ooro-
iqoMt, That he did not observe her any
■eiancholjr ; thai he should not have
■aliee of it, had not such an accKleiit
Md ; only now he remembers, that she
Mao free in discourse at dinner as somc-
iha med to be ; and tliat the discourse
raa oUotly between him and her mother.
lather aad brother do affinn they never
ad her melaBcholy, and all her intimate
MMN do assert the same : It is much
aaa tot this gentleman's sister, and two
saatfa^a, devoted to a party, shonldob-
ithmg.
. Fna, hie mfc, and several others tliat
b her company, with Mr. Taylor, do
affirm, thai alio did not say her head cloths
wouldserve her time, or any thing like it, and
that they ealeemed his discourse with her pure
banter ; that she was in her night dress, and
presently went home and put on dean linen : I
am apt to think there are many relations and
friends, bigotted to a party, that will not bogle
to tell a lye, to save a friend, or near relation
from
The atteinoon before her death, she was ob«
served to stand to see the judges make their
entrance, with her iriends, as brisk and airy as
any there : About four hours before her death,
asl am told, she was in company with a knight
of- that county, and several others, who ob^
served her to he as merry and pleasant as any
amongst them : At nine at night, she earnestly
importuned a young gentlewoman of that town,
to tarry and lie with her that night, as she had
formeriy done several times ; which she re-
fused then, for some particular reasons. When
Mrs. Stout perceived she would not tarry all
night, she mvited her to dinner next day,
and told her what she had provided, and that
she should be glad of her company ; not in-
tending to go out of doors the next diay.
I am ant to think, that if she had been such
a furious lover, as is pretended, or bad any in-
tention that night to destroy herself, that she
would not bare fallen out with any body about
the payment of money ; much less bare re-
fused to sign a receipt *for tix pounds, which
her d st had prepared when he paid
her the interest money ; what was the true
cause why slie refused to sign this receipt, is a
riddle to most.
If she had so great a kindness for some years
ftnr this Joseph, as is insinuated, cprtainly his
wife would liave observed sonietliing of it ;
and then she would not be importuning her
every month, by her letters, to come to London,
that she might enjoy her sweet company :
neither M'ould she, in all probability, (if she had
been so de.sperately in love with him) have lived
here several months together, without his com-
pany, even when importuned by his wife;
but would, as we may reasonably conjecture,
hare resided in your city, where she might the
ofVener, and more privately have enjoyed bix
company : and, as for her going out at the
window, it is morally impossible, the bars being
so close together, that a child of a year old
cannot get out between them ; neither was
there any occasion for it, the keys being
always leh in the doors.
Because there is no mention made on the
trial, of the missing of any of her money ;
several are apt to report that* her relations want
none of it, which is a grand mistake } for they
want, as they comjiute it, at least a thousand
pounds of her original fortune, besides the im-
provements she had made thereon, which were
considerable; they made little mention of it
there (that was taken notice of), because their
evidences that could speak materially to that
point, were Quakers, whose affirmation will
not be taken in criminal crses.
nil] U.WIUIAMIIL . Tria^S^Mi^a^imdiakt,
L Tbe lait Mvia&tfi, 1i«re wii a man liangciL ;
mllor be wm t\tm\^ was cut domin, and barieti
%itlbovl a KnBn, tli^ grave filled up, and
tlw^ i*»itl> w*Hl ihHl dowu; in iJie evening lie
wn« tfig^i^il ijji *g;nin, beitig" prcssc^l jilinost ^ui
Vy lh« wiri^ht of tbt; eailb, ff»E privately casi
into tlKM^vcTf aiift wlien it was obfierti^d that
itUr crtrpse *vould ^iiik, ii wajiexjio^ed to puhbc
vie^v, »nil an mkerti^ernetit of it was |iritit*?il id
lb« Pti^tuiHiif tlte 25tLi of July lant^ irilb a
greil fcUcw of e^tiiliaiioti, by tbeir sayiiigf
* Mtiuy IiMoilrtids baling R^en tbb e^ieiiofieai
* wiib Ihcir n^rn eyes, llie upiniaos of the
* iurgi^oiiii |iro<hieeti on tba part of Ibe king[ k
* iberrby d€*trii>eii and exploded, and a!l [la--
* Ititis c?4mf bcttl of (he contrary :* >Vbat influ-
•nc(9 tbb c*x(HMitneiit may ^i a re mi you, 1 knaif
not ; but i^iivu iiW tbe circuuisiaaoi^s altaQdiD^
il «re ckily eouKutert'd, J am of n piston it will
tUMke lyixe a^^iitt^l tliemitb«ii Ihdr opposil^i r
If tiiry hail tHH^Ev ccriab) af ^ui^f^eifSp t^hat need
of so nnicb art? IVIiv did tbey not insert in
tbeir ad¥^rti»enient^ naw the body had been
managed before it w^ tiirowo into fbe water,
liowr tbey opened H after^vards, aiicj bow they
made a strict s^^rutiny atler water, yet could
tioi find a drop in it . Not one word of tbb.
Ihlfrtliiuks this pDrtial relation i« calenlated oa
pur(»ose to magnify their own eridcnces, and
put a slur on the klng^s.
1 doubt nnt but (he ingetiiouft contrtrera of
this expriment did not ooly eicpec^i it would
ainkf but tbat It woidd hate some water in it
also. I am apt to ibttik it rt^fi^onfible, to ex*
pect thai tiM w^hi of the earth would have
drif en out the wind contained in the cafit]^ of
the breast throafl^h the wind -pipe, which is im-
possible to be done without lAiing up of the
epiglottis, which continually closes the mouth
01 The aspera arteria ; but in expiration, this
being once forcibly removed out of its natural
situation, it was rery likehr that it would not
cover itaffain so nicely, but that some small
aoantity of water might insinuate itself through
lie small passages, which the violent forciofl^
out of the air had made : If thb had suoceedecl,
what a triumph there would have been, you
may easily determine.
Some weeks since a soiveon, that had been
an evidenccat the trial at Hertford, going into
a bookseller's shop, meeting some acquaintance
there, he fell into discourse about Mrs. Stout,
and asserted there, what he had affirmed^ the
trial, viz. * That two or three ounces of water
' will drown a dog> : One of the company told
him, * He could not conceive that so small a
* ooantity would do the business :' He replied,
' Sir, I will hiy a guinea, that I will drown a
* dog in the river or Thamea, and he shall not
* have above three ounces of water in him.'
The proffer was no sooner made than accepted,
time appoiotedt dog brought, and with a weight
tied to his hiiuler feet, flung into the river : some
time afUr, be was taken out, and dissected ;
where instead ef. three ounces^ there was
dbout thtrty-tiirfe; whereby be not only lost
bis wager, but, in a great measure bis reputa-
ia thfi ccmlrary on the trial.
Having^ in fMUne mt^ama,/ ^
coiiiii>4ndSf though by ii| I have^
a Utile loo oioeU trc^|iai«aed on you
fihail take httle tioiice un\r^ wbat cm
alieratiiins there are in the priflteil
1^1 r. 8te|fbei>^ nas t^kpnvi hb astra
fit, (juat oiler the petty jury wentou
turbed the whok <x»urt ; or bow a w
Soulbwark (wlm came clown «0 wm
the pnso tiers) feW bto a sott if
and all the time uf the trial was a
couiposed 10 hi» mindi so that be
be tied in bed^ yet wouTd oftfu i
trial wentf aoiJ whether tbey wen
cleared ; and woulil otlen tell t)ie i
him, that be bad done a vtry bail
would not coafass what, though oft
it : but shall concluile^ desiring tbal
of this horrid iii order mi«y he d*
brought tti eontli^ punialimeat ;
the ionoeent tnay be cleared from al
thrown undeservedly on tbenj^ wbj
aott but that the Ureat Jehofab^
litne, will bring^ to jHtss ; and th»l li
shall be the daily prayers c^ iir, yi
servant. . r. '
Hertford, ^epl. 4i l€f99. t
I doul)t net Intt you have be&rd, ll
tlemen tbit opened Mrs* Sarah §ii
did dqioae^ that she was a vir^n ^ t
formation, I will i^ive you a true coj
certificate, which ts as foltoweth:
Hertford^ April m
* We whose iiAmes an; here und
* having examined the body of 1
*■ Stoutt deceased^ do find the ntera
( free and empty , and of the nainral
^ magfuitude, m usually in vii^ins.
* no water in the stomach, iuteatiiio
* [unga, or cavity of the tbora^E.
JoH» DlXflOA
Robert Pims
John Dimsdi
WlLUAM Co4
Samuel Cam
Daniel Paiu
Ailar thii certificate was delivicci
lationSf tbey de&ired the gentleiDC)
signed ii^ to give their o^^nioos, wi
thought she wa« drownerl or cof A
vt^n; uiiauinious that &he ivaa mi
ejccept ]>lr, Camliu^wbo was uuwfll
hj^ (tpiuiou, either pro or con ; Miff
wotty only anv, * There vfemw^
cm0istanee» :^ i^ at last, wbi«biil
whether he did eooceiie Miy ptM
drowned, that had no water iajM
intestines^ abdome^, luugi, .mtjS
thoratf He replied^ ^Bfjm
thought TirtiTilly taJTlWtjJil
bad said* , .^ ^^
^ the Murder of Mrs. Sarah Siout.
A. D. 1699.
[1818
ro THi HERTFORD LETTER:
IB Case of Mrs. Stout's Deitu
I particularly considered; and
>WPER VINDICATED FROM THE SLAN-
ACCUSATION OF BEINO ACCESSARY
SAME.
your letter from my bookseller, on
^utember last: And thoiig;h I aip
inkiD]^ voar sentiments upon this
either desired or commanded ; yet
uouffh pleased with your apology,
I tell us, you are yery sensible of
weakness, and how uD6t you are to
controTersy, Ace.
lUst confess, may be of some use to
:, b^ forestalling their ezuectation
lerful discovery ; but for tne learn-
pliment might have been spared,
rformance does so evidently dis-
f ou acknowledge,
oduction does indeed promise ns
!rs, viz. * I shall give yon my
concerning the natural cause of
floating of dead bodies aflerwards ;
IS sentiments of the doctors; the
' her 4leath ; tlie letters produced in
r melaocholiness ; why no mention
of the money ; and lastly, concem-
iblic ex|)eriments,' Sec*
1 8ir, if we find your thoughts arise
ultitioD of a heated lancv, and that
^r zeal for your friend has carried
aes to over hasty conclusions; if,
well-grounded and rational solution
enonoena, we are only entertained
front expressions, false grammar,
groundless surmises, and want of
word, if these pregnant thoug^hts o£
bund to be onere trifles, had it not
jrourself alone had been still master
Or, if there was a necessity for
ng out, had you not better have
tM them only to your friend in
an to have exposed yourself thus
to the learned world r
My make good what [ have alledg-
low proceed to your letter. * It is
observation of most people, not used
cc.
leave. Sir, here, only to question
your proposition, whether or no, the
nber of those who are not divers,
any observations upon drowning, or
iwn ex|»erience can satisfy us of the
»n that ensues plunging themselves
ttt? But admit the conrusion (as
ibc it is) to be very great ; it may
bitow, that the very first moment of
reason must be lost : or, in your
, that * there is a moral impossi-
•galatfi their actions by the dictates
e Ityipg bold of any tiling in their
III.
way, it is what equally happens in the fall from
a house, and seems not so much to argue a
total eclipse of the rational faculty, as a want
of time to deliberate : lor the action of falling
being instantaneous, it b impossible to form a
settled act of judgment
We all know the prospect of sudden death,
by what way soever, impresses a certain horror,
(which I must yet think is not so great to one
who wilfully destroys himself, as to him who
either by accident or constraint is pot upon it)
but that it leaves us immediately destitute of
choice, or a power to refuse, both which are
acts of free will, and import reason, 1 cannot
allow ; as conceiving, if it were so, he that wil-
fully throws himself from a house, and he that
falls accidentally, would both eij^ually lay hold
of any thing that might save their fall.
* In this confusion' (you say} * it is no ways
* surprising, that water, wherem they are im-
* mersed, should insinuate itself into some va-
* cutties no ways adapted for its reception.'
On the contrary, I must altedge, that whe-
ther in or out of this confusion, it is not only
very surprising, but absolutely impossible, that
water should insinuate (though never so cun-
ning), or enter into any cavity, which is at the
same time no ways fitted, or (if you had rather)
adapted to its entrance.
I will not stand to comment on your notran
of suction ; I thought such kind of notion had
been long since exploded : For my own part,
instead of believing that the lungs do auck in
the air, I think it more rational to conceive,
that as by pulsion they are emptied, so by the
weight of the air, froih the pressure of the at-
mosphere, they are presently filled again. B«
this, however, as it will, 1 cannot grant you
that every man under water swallows down the
same into the gullet whilst his senses continue:
For I doubt not but that he who designedly
drowns himself, may choose to let it into tb«
windpipe, that he may thereby the sooner %%
choakM.
The swallowing of air or water down tha
windpipe, is a term 1 do not readily apprehend ;
1 take deglutition, or swallowing, which is the
sole oflice of the gullet, and respiration, or
breathing, which only appertains to the wind-
pipe, to be two different actions, and diversely
effected. Whoever swallows any thing, either
in or out of the water, must, by opening the
sphincter of the gula, let it into the stomach :
and whilst a person under water continuea
swallowing, there may be no great danger at-
tending him of being drowned; it being very
probable that during this action no water gets
into the lungs ; but lieing unable to hold out for
want of breath, he must necessarily make an
attempt to respire ; when ceasing to swallow,
the cpiglot riseth, and the water spontaneonsly
(if you will allow me the expression) rusheth
on the lungs : so that when a person is totally
submersed, provided he swallows not at all, or
cannot swallow longer, it is not only not impro«
bable, but I believe certain, that in his attempt
to respire, a fiur greater quantity of walm than
41
■^^
m
Iff S] 1 1 #i Ltl AM IIL Tnat ^Spmcer Cmcper m4 ^Asn,
^r (l>crti»p» nothing but wrfttcr) will g^ into f |iv«fuia«t •*« full liafane iJ«y ar«
In < V4?ry &^pul^0n <if &tr out of th« 1unt(i«
lill isoi iio» 1 wtMkli! Kit iitftmttedj h ev^y sm-
^uImou ill the oil iuto thf^ai ^
It IK mj opiiiiou, lliat tlih ^mrt does net er «ir*
ttcilj^ clom \i\ioj\ I he l&rynv, but npon ilcgtiiti-
tlori : ttod iiUligii;{li by y4>ur acc4iutit it m^y be
lUougtillubo raiit?t}ii]> Re a lrip*(fo(>r, ind
prrttfoUjr fthiit duH n A|fftin ^ I Jo hnd it a. sort
«»f it|irbjf J hody^ ttitil is^ t doubt tjot, itt all tifnet
icimijwhut HeviiM H uwi ibe i^toltii, uolcsfi, as I
l»> till* fvi'igtilof tbe alimetils, w belli rr liquid
i»r Kuliij, Ki*trie (MT'Ciiltai: i]Miv<:tes aMiitidg, It is
thrceti duwii ] ani\ after thU action h of cr, by
113 nnn pnj|>rr tlujiicUyv (r raisetb iuelf again,
IliuUbc siiaeitniKii c iijJuKii* cif iri^ijimiiott Aud
expiraiion luny hv orderly carried (in.
\VbcA oiice iIk'Ji'* is ajiv i:nfj*iik^mlde qiitnlity
of wak*r ff^it into ibc v^iiiifpijn*, 1 ioiaipii^ tlin
tnt||'bt^ ^trui^i^k ol' uattfrt tbtli tii^t lua^ c^a*
tinui' ; itid tjK'R'fore r^rtimoi crbc^oae hut wonder
10 beiif you to siiy^ ' By ibk rtrnggk of nature
* tin? i't>i*;loi is tiik'd ujl^5c<J.
It atm-ni^ m rrty npifitou, tery natunl ; the
cover tt> Ibt^ i^iudpipe bvb|C ft tipnairy bod^.
bod lor lite ittubl prt iiu'lmm-f itmu borUomnl
i»<j*SUoTi: thiifj 1 s*y^ ctJU\iteed, if the rnmiih
be full, Mild lb(^ ^H-ranii nln40«t ttpiit^ or tht^itj^b
bf can, y^l if he will nni swaIIoiv, the oaturi^
of all lluidi is isucli, lb lit tbay viW T*m into aoy
d«c1i¥hy \ utjk^»(ii9 upon aiiutb^'r account you
have ii^ ihf?y art? shut out, uf tbat ibc va^cuity
m no Hray>, adu|rted to let ibetii in.
' As auon an Lhe s^na^t are gone' [you say)
' Ibe cjugrottis is kcjit o|icn by tbe forc« of ifie
' stream/ To which ] re ply » that the natural
posture of tbe epiglut hAiig such as I have de-
scribed it, vie mii^bt rather tlitnk tbe foive of
the stream abouJu chiti it liown^ lb an keep it
Ojjeo ; unless hy tbe iorce uf Itie streura, you
mean sotneit hat jilfe i\iM of an injectiou ibrougb
& large syphon^ whereby the said trap-iloor
may be beat within tbe nitinlu^ of the bryux ;
hut in sttg-nanl viptera Ibe forcfi of the liireani
will be loconsideraMe.
' As lontj as the senses cantiiiue, they' (I
suppose you mean pergous under water) ^ s^m*
* low most of ibc water which eomuB into their
* moulb«,j"nto their stomachs.' And ibe i'«sl,
you tell ilii else wberei I bey siWaUow into Ibeir
windpipes. But ihbi I deny ; for as long as
tbe seuset coutinue, and they can hold ilmr
hreaib, tliey rery ofkin swallow none t and after
tliiSf in lhe caae of roluntary drovvning (vrbieb
you unty smile at as lon|^ as you please J it is
more Hkety by far that tuey admit it into tbeir
lungs J since by sw^llowiug never so much, they
do not df^lroy theuiscWesj but by letting a
am all quautiLy into the lungi, tbey presently
put a pf riotl to their miserable lives.
* Hut wbeQ they are near suffocated* {you
aay) * the water runs into those ducta where it
*■ meets with the l^a&t re^iitaucc/
1 wonM, metbitiks, be intormed what you
meiui hy tbose ducts* Tbe uos^ mii tars, 1
itK entranee inUn t||# ¥«Blllob^ wte«|«
rem»iiia« uule^ that mi liie wttidfiftr 0Mrf
which too, afk^ •isdbc^tion, hh^oM mpmik
but it may he k^t% by the ronliguitj rf ik
ltiopi«'ii U~34iQi to ibe paT«le.
^Ha bing as life couiiaiMa' ^«o yi w4
* there ia n coo? Mlaire strucegfiB^ of
* e%iie\ out of Ibe Jungs ^ CboK Ihiaei tow
» imAious to I hero, ^pedaTly waler,' kg;.
f#et me kit yini, Sir, I iun *|it to ibiai III
doubt not but any tliioj; of a more ttaerfOls^
tiire, Hipping into the lifiigv. will eieite
atfonffer cocitulsloiu itiafi ihoMi frdoi i
But bdfiHl, &ct»niiii£^ to tome nfmmm
lately uiadft, f eoul4 nfit percrif c rhe sm^4
tbome violefil con^uUiori> yon hervipeik4
I took a doj*-, ati4 by a w ri^hl liwtJy ^
him under three fool of watrr, whkh «i •
clear that I euuUI i^ercei*« what
hill) r and, toti^ pTam wtib you, I
for altnoht a minnic he lliri.*w his beid ^
derly abuni beforr} Itr ^apcd ; ujhmi vtWtdk
water i^eiting iuto his %tu\dnipf, b Ittif i#
note more he fell down with hi* nv<k imkk^
loin, void of sen we ahtl mot tun. ¥iet iiaj
pluftgv*^! anothrr nouiCwbai Ipsi ; wb«*,i»%
tnanoer asthr fonncf-r t i'ntm\ wlifa U hi
turned hia neik Iv^u or tbr«c- tijitesi ttl«i, jl
was to appearance dead in a minule'* niw.
Now in all lbi» there weit none of tiSMli*
lent efforts^ to ihruw the wr.tef md d'tlie^
diicernihle; or did I ibink it aH mtmiiUfl*
pect the same forced into the caritiei ''^^^
I borax, either by ih latin |r ihe pofe* of ^*2i ^
membrane that investn ibe lungs, as aa^t^J
is forced by tbe pressui-e of a hftoi "^^w
a piece of leather ^ or by a ruptured' ^
nicle, or by some minute vrsseb not
scribt'd by anatomists; and liie reas
thinking so it lb is, beous« 1 caaU
little more io effect it, but the specific
nf tbe water; which, according to the
(he libration of liquors, I take to be k
able, -«^^
1 know of no physician that boasts ¥ ^^
pltti uHru in anatomy \ nor should 1 ^
any such pretensiun Irom a pbytician, i*^ ^^
as tVtim the anatoiulst : These two, you t *1(»
are not always inseparable coui pauioas^ '^ t
as to yoiirinknncc about the empyema^ tlA^ ^
I tbinlt it foolish to deny f:4Cis, wlien I anrf** ^
able to account for the raann€;r bow tbeyC^^
brought iibout ; yet I see nothing to bii)deB-'^'^
from believin^^ that very oAcfi, where ^^
Toatter yon speak of is cast forth by eicret*^^
th^ \m\^ I lave suffered a solution in their fl^ j
tiLuiry. tn two personal have inapectediVf' .
died under these circuujFiances, it was ^^f^^
rent J in b4^th of which, as I sunjKse fmaif**^
pi^eceding iierifineumony, there had been it^^
scesses formed in tbe lohes of the lunga^whitf'ji!
bad rotted their outward nietubrane ; so lh*jjj
whether tlie puruJeut matter, which '^^^^^'^Mf^^
ed up, came from Ibe said abscess, or whdbe^
ii^me of thftl wbkb fltictuatej ^u 1^ di>f>hrafs^
J\a' the Murder ofMru Sarah Stout,
A. D. 1699.
[IS9t
0 be inabibed by the ulcerated lung
ertain.
on of bitter liquors afTecting the
f are cast into a fistula which took
m internal apostem ; or otherwise,
tion has been of long continuance,
^ great quantities of foetid, icho-
isivc matter; I should less won-
iment should answer : for in (hese
le of the Tiscera is yery much
le patient Tery frequently dies
5 find upon dissection, that very
e lungs are corrupted. It may
1 a recent puncture ; but then we
ise sometimes uncertain, whether
e of the lungs received no damage,
t that greater stress should be laid
ases than they will readily liear :
ist aver, that in penetrations of the
lot always happen ; for in a pnnc-
cen injected, and a fistula of this
ich I have cast at times several
itter decoction, with a tincture of
ocs ; during which, 1 can safelv
icard any such complaint, though
«ly enquired.
m of Mr. Boyle's citation from
latter of fact, might be pretcma-
s to his finding the same divers
ligent soever he might be, rather
yself uncivil to him, by saying it
tall turn sceptic, and suspend my
m better satisfied : at present I
' there was an ailmission of air,
s much smaller than tliose made
sort of |)eas, into the cavity of the
spiration could be carried on : and
think, that Dr. Garth's remark
is very pertinent ; where he tells
a great providence in such a tex-
(saith he) * there were any large
s membrane, the air would pass
the cavity of the thorax, and pre-
station of the lungs, and conse-
e would be an end of breathing.'
night put this matter yet farther
'crsy, being willing to be made
e utmost efforts of a drowning
the result of the most violent
could make to save itself; I sent
lest you should find fault had I
tub, I procured the use uf a dis-
rhich, if I may call it so, is a sort
itaining in dimension thirty font
I half as much of breadth : into
led with water, 1 caused the ani-
, having before ordered his fore-
together,
e of the fall he was plunged over
but rising up attain, made to the
be could; and though several
I, continued struggling, and by
lb hind -feet often raised his head
if: opon which, seeing no likeli-
inf drowned under a very long
il Tiim to be taken out, and his
10 lie fastened together. Thus he
was a second time thrown in, and continued
struggling, sometimes 'under and sometimes
above water, whh his head and neck; ifa a
quarter of an hour's time his navel started, and
soon after there was a visible prolaps of the in-
testinum rectum : having thus between while
had the liberty of an imperfect respiration, it
was half an hour before he nad done struggling ;
after which, under water he gaped several
times. When dead, I left him, and returned
fire hours after ; at which time I desired be
might be taken out with his head erected, that
we might lose no water.
I think, if it had been possible, 1 had reason
in this case to expect water in the two cavitiea«
i. e. the thorax and the abdomen, which seemed
much tumefied ; but was so far from it, that
upon the opening the peritoniEum, instead of
an inundation, I found not a drop of water ; and
even the small intestines had received very lit-
tle, if any at all from the pylorus. What was
contained in the stomach vras much short of
half a pint, or Httle mure than four or five
ounces. Having raised the stemon, we per-
ceived the thorax, in like manner as the abdo-
men, perfectly clear of water. Out of the
windpipe there issued a spumous matter, and
the whole of what we pressed from its ramifi-
cations was about three ounces.
Thus, Sir, have I given you a faithful his-
tory of the fact ; but if you think the experi-
ment was made clandesunely, or that the dog
was half strangled before tlirown into the water,
as you pitifully insinuate about Mr. Cowper'a
experiments, ror your farther satisfaction, yon
may be informed of Mr. Harrison, without
Bisliopsgate, of Thomas Serjeant, esq. gentle-
man porter to the Tower of London, Mr. John
Litchfield, surgeon, with sundry other persons,
as honest and judicious. But to proceed :
' Water is as frequently found in the cavity
* of the abdomen as the thorax.'
It may he so; but if the stomach, guts, &c,
in the former, and the IvaifB in the latter, con-
tinue firm and sound, (as is reported they were
in Mrs. Stout) I cannot aee how it should hap-
pen to be found in either. I must confess, I
nave never seen it, nor was there any thing like
it in my late experiment. If the viscera are
putrid, I should not wonder at it ; but if other-
wise, 1 should be tliankful to your iiiicrosco|i-
tic anatomist to shew me how or which way it
should enter.
* As soon as the lungs, stomach, &c. arc full
* of water, the body naturally sinks.'
I suppose the Sec: inclucfcs the thorax and
abdomen, as well as the guts ; but though the
lungs, stomach, and the 6lc, are full of water,
in the sense of fullness here meant, I deny that
the body will always sink, as having seen the
contrary, and can bring proof oft he same.
* It IS observable* ^on say) * that human
* bodies after death admit no water ; because as
* soon as death seiases a man, the sphincter
* muscles in all parts do naturally contract
* themselves.'
How it in in human bodies I cannot sajt
1923] 1 1 WILLIAM UL Trial nf Spencer Cofvoper and Men,
baying made no experiment of thet kind ; hut
that it is always so in other animals, I deny ;
ami indeed can see no reason why it should not
te admitted for a parallel case : for though you
sav, the sphincter muscles do contract them-
selyes, yet the epiglot stands open; so that
unless the tongue and palate, by their conti-
guity, or some spumous matter already in the
windpipe, intercept its passage ; what uioders,
in a supine position of the bray, but that some
small quantity of water may slip within the
rimiilee r But whether or no the sphincters do
always naturally contract tliemselfes before
death, may be disputed ; for they sometimes
labour at tlmt time witli such a paralysis, as
occasions a resolution of their nervous fibres,
and forces them inToIuntarily to let go their
contents : thus nothing^ is more common than
for dying animals, whether rational or irra-
tional (if soon before they did not exonerate) to
let fail their urine and intestinal fteces.
That 1 might inform myself whether the
water would get into a dead body, I causeil a
di^ to be snflfocated over the fumes of a spiri-
tuous liquor, prepared tor distillation, in tlie
time of its fermentation ; and though his nose
was held some little distance from the surface,
yet it stifled him to death in two or three mi-
nutes time ; ai\er this he was thrown into the
water, and sunk presently to the bottom, where
he lay several huurs. being carefully taken
out, 1 opened his throat, and found the epiglok
(as is always usual) raised fmm the windpipe,
which inclining downwards, there was tlis-
chart^eil about three spoonsfull of fair waier.
Tlie immediate floating of human hiKiies,
thrown dead into the water, 1 believe to be very
uncertain : anil whoever goes about to estalilisli
it for an infallible hypothesis, I must needs
think very rash, if not guilty of a downright
folly : fur, though your scamon should tell me
a thousand idle stories, I know thfrc are so
many causes that may alter the case, that it
would be very ridiculous to credit so bohl an
assertion. I cannot say, 1 have as yet trie<l
the experiment on a human body, but of those
other animals (both alive and dead when thrown
into the water) which 1 have made use of,
there was but one which floated, and that I
thoug^ht most likely to be found at the bottom,
as having received most water into the luii^s
and btomach. If the dead body of an ascitical
person should hot sink, it might seem strange :
«n the othi'r hand, if that of a purely tympani-
tical should not float, it would be etiualiy a
wonder.
* It' the person died in the very act of inspira-
tion, llie lungs,' (you say) * will be full of air,'
Ice.
Here, Sir, you must give me leave to think
you very much out of the way ; for unless in
the case of some very sudden and violent death,
f urn apt to l>elieve all persons flnish their lives
in the act of expinition ; and even in the most
sudden, setting aside that of strangling by a
ligature, where the air is forcibly included, and
its paaaage from the windpipe intercepted, 1
make it a c|aestion, whether the lasts
the lunga is not that of its systole or
tion : For although to outward ap|ief
roan 6r other creature nuy be tbmig
inspiring, and seem perfectly devoid
and motion; yet by bying any pol
diaphanous body to the mouth and
there is oflentimes a damp contracte
same ; which is nothing but the air ii
proceeding out of the lungs, and coni
the surface of the said body.
It is tills general opinion that hath f
to that very common expression, i
would signify the deaih of a friend, h^
He is expired, or hath breathed out
But admit the assertion good, of dyu
act of inspiration, it will not follow
dying person can take a tenth part <
he did in pcrt'ect health ; and so cona
cannot fill his lungs with air : for, i
stance in asthmatic persons, who at \
take but little air, by reason of the obs
of the bronchia; and are therefore for
quick brtfatliing ; it is very rational t<
that immediately before death the coi
flbres are much weakened, the blood
stagnize in all parts, and being carrio
arteria venosa into the lungs f iister tba
off* by the vena arteriosa into the left
of the heart, a great part of the pt
celh are so stuffed that they can a
little air : so that the quantity of Hha
in perfect health, and that which w
dyingf is vastly disproportionate.
By filling the tlit»rix with the *
forced into the wiiMlpipe, unU'ss you i
iuif the lunj^s in the thorax, it serms
the jargon of tiilin«>^ the thorax uith ^
of the lungs. For my part, I hav
times, through a tul>e,' h o\* ed with
force as I could into the lobes of the In
caused at the same time a lightetl car
held ni;^h their extremities, and run
them ; I never could perceive ihe leas
of the flame, whereby 1 ini^ht conjc
air had any vent : so that I must Ihi
|H>ssible that either air or water, ^^h
texture continues firm, can insinuate
the cavity of the thorax ; till you c
me some of the diligent Walla'us's £^
that have [lores in tlie investing men
their luniks as hig as the longer sort ul
I think it \ery hkcly, that a dead
he more buoyant in salt than in fres
hut your ex|>eriment I take to be iooo:
for uuleus you had saiil that a ship
some inches lower in a sea of fresh w;
in one of salt, your adversary may ol
the reason of the lower sinking in the
may perhaps bo as much ouingto lb
depth, as salt.
The discordance of the physidu
perceived by reading over the trial: f
of the disagr(H.>ment, as i remember,
sist in this, that whereas on thekiK
was athrmed, the lungs of Urs. m
firm and sound, aud not th« tat ip
for the Murder of Mrs, Sarah Stout.
^w^t^r in the tbomif \ for the prisoner, Mr.
^vrp^r^ it was repiteil, lb a I if the mvesting-
emUr-^n^ of ibe \1n1g9 was souiic), il was ruli-
iloas tt> expect %raier in tbe lb eikt, tli€ir «n-
Ag«i.irB -^ for tbe kltig[, il waa thotigbl itnptNi-
lil« tHsK^ any per^QO tbmwn dive into tbe
«ter, sixould be drowned wiibnul swallowing
' Iftkt n^^ io a ^rtal tjnantily of the same into
ic *^ior«*4acli, uiiil otiier cavities ; whereas, fur
ri*<^c>iier, it was ibouj^bt very possible two
«unces toight be siifFicient to ilrown
^s^iLvmerscil person. And tbis leads me to
»er^ <« tUe last cited pajje ; wbere I tinil
iim«::rti concerneiL that Mr. Cowper** phy-
klioulii Ktrenuout^l y urge, that so small
^Qt-i t. T of water was mufficienl for this pur-
^^^^ liich you say they ifroundetl on a pri-
^^c:|:»e rime Jit on a dog half bnnged, you
^l>% to ibink that there was ariiSce in ibe
*A • id indeeil so sbotild I, if I were sure
■**AiJ half hanged biiii : but if you were
•^^ 10 your Hleep, it may happen to be
» «^rif not, 1 think you are but httJe obbg-
^ta J per^n, who wo» so officious as to tell
uniruttt. However, that you may not
of any artifice, made U9e of in my ex-
tots, I s»hal1 refer you to the afor>eattid Mr,
^Dt : he is a gentlemaQ very cnrioua in
^rjcjuiries, a man of uni|ueatiuuah1e pro-
^1 and ^try well known in our city of Lon-
■^ ^m presence with divers others, I caused
^y^t Hbo bad been kept fasting almost twen-
^'"'i' honru, to he plungetl under water*
ufTiTing bim to rise : When he bad
id s<>rae lime, [ look bim with his head
, that we might not lo»e a drop of water
ad taken in. Having made a hgature ou
^ub, I turned down the larynx, and with
^ niodemle pressure there was diKisbar^ed of
^'>4ratHV, mixed with a spume or frothi about
1 /our larg-e sfiooufuls.
A^ler ibis I came to the stomach, which I
eiTrived to be very lank and flaccid ; when
into it, there was not a drop of water
nid, nor indeed tbe least remains of the
^ juice, which bad been before carried
I through bis Long fasting ; so that the
liles of the inward membrane were very
pDOO^picuoua.
8oon after, i drowned another before tbe
com(>any, and do assure yen, have all
Inagiitable reafson to persuade myself, that all
file water be bad received was let into the lungs,
Lwhich did not exceed two ounces anti un half:
rHiit in this latter (having, unknown to us, been
) Ic4l a liwle before) the stomach was half full
^ ©f indigested aUments ; yet no appearance of
> im^\eri which in drowning we could suppose he
bftd gulped down.
I come now to your pleasantry with Dr.
6U>ane, who it seems was so unhappy as to tell
the judge. That cases of that kind were very
iiocommott; and lest some ignorant person
slioijld be to seek for tlie meaning of the words,
pjim ii » parenihesis dapped iO| to leU us, that
by caiics of this kind is meant ^ (for Mrs. Slout to
be drowned without any water in ber)'
I tbank you, Sir, for your inforujation ; till
now I did not think the doctor*s wo nit were 10
mysterious, but harmlessly gave them quite a
different construction, which befare you were
pleased to be so wiltv with them, 1 thought
very natural ; and naving since asked others^
they tell me tbe doctor means the cases of
drowned bodie« remarked upon, cspecialljr
when they have been laid six weeks under
ground, and afterwards inspecieil to tind wat^.
Now, 8ir, if, since the creation of man or wo*
man either, you have heard of such a case be*
fore, or if, in the multiplicity 0 1 vour practice,
you have met witb any thing like it, 1 tbink
It is great injustice that you have so long con-
cealed It.
I Hould gladly know precisely what you
mean by drowning. You think ibat no per-
sim can projM'rly be suid to W drowned, who
hath not swallowed (t shun Id rather like re-
ceived or let in ; becauMes^tallowiti^, as I have
already told you, is proper to the gulkt) abov9
two or three ounces ot' water: And, I tbink,
that if under water those two or three ounces
do effect his destruction, he is as truly said to
be drowned ait if be had taken in two or three
gal loos.
If respiration could hj any coutrivaiiee bft
aecurcd to a person under water, b« would then
be in no ilan^^er of^ drowning, xigain ; bet hioi
up to the 4'bin, and, il it were posjtihle, let him
swiillovv a tun ; ihuugb it may be otherwias
mischievous, tt will not drown liim ; For if, as
may he inlerred from your opininn, drowning
must be measured by a great quantity of bquor
swallowed into the sioniarb, we bjive abund-
ance of those drowned persons, somt- of tbetn
top full, daily reeling about our streets in Lon^
don, and 1 bliliefe vou have some lew of tbetn
in your town of Hertford : Hitherto we have
calicfl them drunken persons; and you wtll
find it a very difficult matter to persuade them
that ibey are properly or truiy drowned.
iSince then it is Dot ibe ^eater quantity swal-
lowetl into tbe stomach, but the lesser t&keti
inlo the lungs, that kilU the creature; and
since there is no such thing at all a^ drowning^
but by thai smaller quantity eutering tbe said
part ; J reckon that if a man dies under water,
without tbe distinction of more or less water
taken in, he is as much and Oh really drowned
as any thing can be, I know tbe word is some-
what ambiguous, and custom has applied it dif-
ferently ; for if a person upon land, by liquor
accidentally rushing on the lungs, or, as it it
culled, going the wrong wav, receives hi«
death ; this 1 say is named suAocatiou : But if
the same thing bf^tides him under waler, we
usually cull it drowning ; though the latter
isa^iimt'h suffwaled as the former. But I
have alreatly been too long on tliis maitcr, and
shall tberetore proceed,
I hope by this time you arc no great sirangtr
to the meauirig of that general question you
ttkeuolice vf| about water m the t]iomz| if
1327] 11 5WLLIAM UI.
1
Trial of Spencer Cowper and oihin^
l>emg scEsible of the UtiDiJer, ttity h»d in^
irenuousJy quitted it, 1 betieveithad lieen rwucb
better ; luU whciberor no Ibeir pprsislbir ^w U
Las been any ftdroBtage to tliefOj lb« lewiied
p.* 1 cannot till ok Hie In Testing meinbrane of
^e luttfT* so easijy tom in cougtiiri^ j if it
r^ouid, Ih^e may an ulcer of tUe lungs ensae i
im the soluuon would not prest?ntlj, (f at all,
bne re-unUeiL But w hai of tliis, or what would
^u Inffrr ? I cannot persuade myself there is
fttt^ cough iiig under water that should break
^eir continuUy.
'\ I fiud the fl«ict4)r is not yet got ^iit of your
dutches: He brijifa us, jioor g-entlemiin, m
nskDy ir« and And - s, that Lis sentences happen
' to [irore uomtellig'ilite ; for where \m telk u^,
iiat if there was a gte^i fermentmtion, a grctii
deal of ttte witer would rise up in vapours and
^am$, and p off that way ; we are at a
loss, it seemtith, what way he mecina.
' I cannot imagiue* (say you) • by that way
pTvLat way he means.'
1 kuow^ not what you may imngtne ; yet I
4»nnot think y^Vk aUo|rether so dull ag yr^u pre-
tend : Uni otiierg 4o ifiiag'ioe, that by the way
oftteam^and vapours, be means th£ way of
•teams and vapours; or, if it will be more easy
10 your imagtoation, under Ibe forro^ after the
tnanuer, or by the way of cTaporaiion. Thfongffi
whatpassEiges these vaponra ware to make their
i»ay, was uuotlier queaiiou ; which, if yon were
to ask him, he would perhaps lell you» tbroQgh
the pores of the body. Bui it seems, to ter^e a
luroj alt ouihts most be barred and bolted ; the
tphincters must be locked up, and all the cover*
iog^ of th<3 bmly grow bo dense and aim pact,
fbat not one po'^r curpn!<iclc dmlt gtiin ita li-
NHftv ; So that aLthou;;T-[] sonae steams carinot
extricalfi theuvseWes trom putrid Aesb, yet
others will get tfa rough ptaiatered and bnck
waHi ; nay, the very stones tbemselfes are
DOt a fence ajrajn&t tlieir pencrtmtiou. But if
a certain person, present at the di§ion, does
not retract, I was told there was a moisture
tome what J ike these steam* on the burial-
clothes of Mrs. Stout ; in others 1 have beeu
inforu^cil it liiis been t're(juent1y observed i But
rather than this putrefucLite moisture, or li^nrt
of dew, whicli has been seen upon the sbro^i ds
of tlie dead, should be ihougbt to arinefVom the
^dy ; ] supjiose you would choose to account
for It, from the subterraneous damps, working
through the coffin, and so settling on thecorpse>
I make do doubt, but that dead fleiih, whe-
ther in or out of w&ter, wit] quickly ^row
futrid I but whit^h of them will be so sounc^t,
cannot be positiire ; ttiooj^h I am rather in*
isUning to Dr. Garth ^s opmron, and to tlsrnk
that water will rather retanl than hasten putre-
faction : Jn a little time I &{vA\ be better able to
^re sal is faction to them who i-pquire it.
Ton muH excuse me,if 1 do not come up to
^nur bi'lief, that there was a iaptHs lin^tae in
thedocliir'8 di^^tlnciiflo of accident and d^^igo ;
ms be]it^Tiu|r it foimded both on reason and e.t-
^rteoce ; But if you will iJiow theui as much
El
diBarence a» may be i&nnd in
mtk, between the pera^o wlto pvllilfi' ibt
bmlter about his ovrn tieefe, aod ooe (atytas^
press it) that the hang^man fi^rreth jt'iNi ; I
know not whether they will desire My hmtt.
Tlie animals I drowned had ail of tka
much froth come from th«ir fOMmh tuA n^
trils I and aHer harm^ token emi af osf if
iLem tbe lungs and wimtpipe, and laid thmtm
Ifie table, I oWrred this spamoBs malMr |lii^
tiJally to ri^^e up, and to nm orer t]ieepf|^j»;
tofiomuch that it seemed likely the lobt^iafM
be quickly emptied i»f ibeir waler by tbii ity
of purgation, i imnDoC say^ this Itoth a pec^
liar to drowneiJ pcrsous i far tboti|t^i jteitifa
the lungs may not furnisib the master, jrt H
persons dytnj;^ otherwise, there rmy oflajbtf*
pens so quick a ferment in the stouiad), M
the contents thereof are frequently <fadhiOT
by the gullet^ u Elder this appeiarance. f km
it is prraiiively a^^ncd bv t»ne of ibe fkji*
ciaos, that if Mrs, Stout had not bettt >»»il^
there had been none of fbtt |liirpiti4i»: f »
pose he means froen the wividpijit ; and to |
am inchned to the satue Ofkinion*
Mr, Iferriot must be a(i«u«ntb1e for hif Mt
contradiction ; I am so far firom def^ndinf kii;
that if he or any one else should tet! mt it tif
so general a rule as did admit of no exefpiil
I should give little heed to them, stnc« 1 mi
vtry uncertain,
Hatini^ now, as yon tuppoa^, d«ir«ddi
WHy, and knoeked down &U brfore }vn ', i*
next thing is your account of her de^tb ; Stf
if f am not much di^orii^ed^ the eQifiJoce jo iin^
either through your unfitness for ihe ta4i
or the weakness of your intelleclj usbord i|
with a very great mistake.
* If ibid gentle XV urn an* (say yon) *inii4
* drovrnedj as the doctors and surgeotis fbrtfcl
' prisoners wtem to insinuate.*--
How 1 Did the doctors for the prisfinenMJ
nuate that she was not drowned? 1 ^(^^l
thought they had all luken it for ^tmt^ ^
she was drowned. Dr. Cretl, I lbiak>|tj
ticular, was a physician for the prisoTifni *"
be erjiressly lt?Us the judge, that he ii i* fl
descant upon the matter of fact^ wbdiJK m
d ro w oed I lersel f j yet, saith he, my fif* 'ff'**
i*j, that she was drowned, ^^
Now if to be positive, or firmly to fc*J
she was drowned, be the same thtag u ■■"
nuating she was not drowned, I see nrt *•■
any man can rightly apprehend itwrtwl
meaning, hut by the role oi (»Qtranei, I ^
fMs you have already told us of the *^^
of your iotellect; hut how weak loer^ "*
may be, I must needs tliink your m*fi*«jl
Tcry treacherous. Now as to the maao*' ■
AJrs. l^totit*s death >
First then we arc to undensiand, ' st* ■•
* knocketl down with a blow upon her left ^
Secondly, * after sb« was down, &be '***^
* tJed witli (he grijje of a strong ban*! :' M
Thirdly, * that the person who ^^^'^}f\l
* tnight gripe the stronger, be rioted Ju* •*
I * upon her hreoftl.'
^1
1^
I.
t
M,
m
I
»]
Jot the Murder of Mrs. iSarah Sfi>ut.
A. D. 1699.
[1S9D
B my word. Sir, you bare made it out ex-
d y well ; I find it is a rare thing to have
lick ioTeDtiou : And I nnust tell you, for
* encourBj^ment, it is a question whether
lest matheaiaticlan in our city of liOndon
d ba?e done it more exactly. It was well
r fruitful fjfenius was consulted to untie this
:, otherwise we might have met with much
»lty, and perhaps had never l>een able to
! aolved so many perplexing phccnomena
I so much perspicuity.
luast confess, it was very unlucky for Mr.
^per, these settlings happened so pat for
r leamcfl comments : But had they been
where, I fcdr they would not have escaped
r penetrating judgment. Thus upon the
Y they might have been made by kneeling
«pp her down ; upon her back, by falling
llie said iMrt against the ground : Her
[hs might happen to be trampled on in tlie
ffle; and nothing more likely, than that
irliotly should lie upon lier le^s, for fear she
idd rise again before they had dispatched
Thns, right or wrong, rather than it
old be thought she was accessory to her
I death, we must find out the best means we
, on which to ground a persuasion than it
yrned otherwise, that then of necessity
re must be violence in the case.
Vc come now to the reasons, why you pan-
lielieve she did destroy herself: Which I
II briefly speak to, as they lie in order ; and,
li jou, submit my self to better judgments.
%t first is, ' because she w as found without
vgown and nis^htrail ; which' (that we may
c a salve for every sore) * were very proba-
?f torn in the scuffle.'
a to this, I roust think it rational to suppose,
t ibe herself mi^lit take them off, to pro-
tc (ss she might imagine) the speedy smk-
* or prevent the discovery of her body, by
tr inreailing on the surface of the water ;
'do 1 see any great difficulty in the thought,
t a Norwich stuff may berolted under water
^little time as the gown was of which we
•petkiog. If the nic^htrail l>c never found,
N]ie it does not follow that she was nuinler-
- 1 should rather think, if the gown was
Vght and throwu in afterwards, so uiii^ht the
iwail too; which would have been as easily
ted elsevihrrc as the )>i)wn, and with the
Be trouble both mi;^ht have intvn cast into
' viler. I cannot suppose, aihuitting it
■ been in the river from the time of her
^'WUBg, that it would have been always
^M pltce ; but rather carrieil by tlic stream
"Cr water, sometimes to one place, some-
'cUd another; sometimes lotlgcd, and somc-
••» at liberty ; as we find other trumpery
"■ be under a current; So that, supfms-
rtbe miller bad very diligently cleared that
^itake but half an hour before, what liin-
^ Ibe possibility but that the next half hour
* C^^D, cither by itself, or together with
*^ trash, might be carried thither by the
^aodkdmir
"^coiidly, * S«Gaiife aha wu found floating ;
I
< of which you make no doiibt, because it iraf
* sworn by several witnesses.'
I fiavc already taken notice, that from this
there can be nothing certainly inferred : Dtmd
bodies thrown into water, 1 am satisfied, will
ofUn sink ; and drowned bodies sometimes will
not : But as to the case before us, it is plain
that some of those who viewed the body gave
a different relation from some others. Thus
some of them said she did float, though it was
under water : whilst others, who should know
best, being the parish -officers, and employed
by the coroner to take her out, depose, that the
body lay half a foot under water, and that, for
any tlang they could perc( ive, her feet might
touch ^the bottom ; and farther, that when she
was heaved up, there were several sticks aud
flags on which she rested: But without all
this, Sir, I think it very natural for a dead body,
which is always buoyant in a current four or
five foot deep, by the bare force of the stream,
when it meets with a slanting opposition, to be
raised from the bottom.
Thirdly, * Because her belly was not at all
< swoln.'
Nor was it at all necessary, though drown*
ed, that it should.
Fourthly, * Because no water came out of
* her when lifted out of the water, nor piu^ged
* from her af\erwanls.'
This, with submission, is a mistake: For
though there is no quantity of water taken no-
tice of to issue from her, yet it is agreed on
both sides, that she did purge at tlie mouth
and nostrils ; some say more, others leas. The
two principal, who took her out, and stood by
for some time aflerwanis, do affirm, that the
fi-oth came out after such a manner as to run
down the sides of the face, and that as it wae
wi|ied off, fresh froth came |uresently on again ;
which Dr. Crell does assert could not have hap-
pened, had she been strangled, or otherwise
killed, before. Whether this be so or not, 1
believe it very possible, whfre little water is re-
ceived (and very little will suffice to drown a
person), if there be so great a purgation at the
mouth and nostrils, most, if not ail the water
may be tunie<l into a spumous matter, at least
so much, that there will be no absolute neces-
sity for water to run out upou the motion of the
body afterwards.
FiAhlv, < Because her inwards were not pu-
* trf fietl.*'
After six weeks time I should indeed have
expected putrefaction from any person under
ground, that had not been embalmed, without
regard to water takcMi into the bofly ; which,
w h ether or no it hasten putrefaction, is very
ilisptitable : What it may do under the earth,
I know not ; Hut I much question, whether
dead flesh, covered over with water, will grow
putrid so soon as that which is exposed to tlie
immediate contact of tlie air. Of this I shall
he able to say more in a little time, and lor the
present leave it as a problem undeci<led.
Sixthly, * From the several distinct sel
' of blood, unusual in drowned penoM.*
laSl ] n WILLIAM m. Trial of Bpmcer Ctrntper and oti
Upon tbe triaK it ts affirmed by Mr. Ciifnlin,
thftt both Mr, Dimsftale and him&elf havings
TJevr^d the body, did ^ve U in as their opinion
in the coroner, iJiai there were no oiher suUle-
inents or stagnations of the bloorf. than what
nia^ usutiUy happen to drowuetl bodies : Mr.
CamVin instances in the cliihl for one ; but
whether that were so or not, 1 have percei?eil
U royself on tlie superficies of a dmwneil bo^ly ;
nor ui> I iee why it may not be found on tne
Deck and breast^ as soon as on other parts.
Seventhly, * From the conlinoai di-slurb-
< ances Mrs. Gurrey was under, both in mind
1^ and body ; ne?erthe)es£ she would not dis'
' cOTer ii^ till she was almost frightened out of
^ Iter i»enseii, by the voice, as she tbouf^ht, of
Mi^. Stout, wliich uttered these wortlitf Di-
▼ uig-e, conceal nothing.*
If Mrs. Gurrey was disturbed in mintl, it
rould seem stninge tliat she should not be
rilisturbed in boily ; tlie \a.ltei bein^, as I ^n[i~
«e, sehloni or never easy whilst the former
t under trouble ordiBqiiift. llut'wheiherMrs.
Surrey *a mighty disturbance hjul other rise
bma whtmofthe brain, foumted upon astrong
sion of fancy, may very reasonably
^qncftiooed : For my part, I took on it so
atuml for a doating, ignorant old woman to
f terrified with the diw^rder of her own ima-
|i nation, be Jure hand perverted by too deep re-
Beciii>u, though the &ame has nothing but a
ebimsra tosiip^xirt it, that I am never startleil
Hen I hear of their pretences to voices and
velations. Tliese you know are not in-
mI, though more peculiar to a distinct
80 that if once such persons happen to
sirongty opinioued that any thing may be
^so, they need but fatl aiiileep, for a coofirmattou
that it is so.
Had you not already acquainted ns with the
l-^n^eaknesa of your intellect^ and your incapacity ^
Tdcc. I should have been sinrtteil tliat n man of
^learning and solid ju^Tgmeot should buitd on
^the idle fUncies of a dreaming old woman. I
(^hink, how greatly soever sht* might be dis-
Imbed before in mintl or body, she has now
nofe reason to be coucenied, that by a Ion J
leUef of a revelation, those men should t*e
'brought into danger of their lives, whom we
[liave a great deal of reason to Wlieve were as
onocent as her*df, and little or none to
K think they should be goiliy of such a horrid
rikct as they were accused oV,
t Eighthly, ^ From what is sworn by the
1^ Giirrc'V'* against iheir hMlgers at the trial/
Could J belrere all to be true llmt the Gnr-
Pteys swore, I should make no qutfstion of the
■Jikehhood of these men*** guilt : But that they
f4id stretch in lome things^ is very easy to be-
btieve, by some particulars at the trial ; and by
[their hehariour beliire, at, and after the same,
we have great iuducemenis to persuade us thai
hey did ao in others. Thus it is proved that
teurrey himself went out ol' the court in a.
fl^ttsttne^ way, to tell some of hia acquaintance,
[tliat he had iloue Cowpcr's busiacsa^ or to that
ifect. And «t auotber tiist be iaidj that if
Mr. Cowj>er bad vttited old ]
this trouble had befallen t
disc riiahce oft
thoii_ Ive^susp
Vet tilts \\ i^ not to lie 1
of taking off lier evidence ,
could so readily turn the
M arson had that day received''
for business lU^ne in the ]
6rty poundi, supposed to fie |
dering Mrs, 8«nih Sroiu at \'
by thei^me kind of impmreiiient,v
liike, understontl all the rest.
It seems indee<l to me the m^
absurdity that can be imaginr \ tiiiil t_
men really come down cm such a 1
should tjo ilirectly to tell tbcif 1
Stout's business was done;
her courting days ; and that i
received li hy |H)unds for ilom^
In matters of this natun
have nottiing but idle •itoriel
dream, to rat^ the suspicion, I thS
behoves us, before we pass our <
a just regard lo the character soil Jtf^
the person . Thus, indee<K fhonerU »t
impotusibtc for Mr Cowj .1 bdl
the opinion of every one ^«^
hifiit yel V am ready to trnsjK, ni«al
uho know him (unless some particuUr|
that upon any <enus would v^ "' -s •^'^ -
tuter^st of his family iu that
brought to iL i^ersu&sion, U*- r,r.
imbrue bis hand« in hi*
the |»retenile«l one thou-
have gaineil ten : an<l a« to
it is lisible tliey live iu cretlii
thetr charactera well attested, aad ui.
them iu the least likely to make an UH
the hicrc of 5ve bunnred pounds. J
Ninthly, From the sentiments r
Jury.
Tmust needs thfnk, thai on ao I
tlictraent drawn up against the
such strenuous allegations of their
»a foul a crime char^^ed on thef
cumstaoco attending a& that of
being last in her comjiany , and tlM
acquaintance; especially when Mr
tale had been set out with abundance
vation; 1 see not how for nuhlic aatii
well as private the grana jury cual
than find tho bill. But as la the pctt
you call ihem, I wish you bad mi
several wlio did beheve her uiunlerti
trial r I am assured that itonitf of ||
openly declared, they thought lbs |
we speak of had bt-en s«i much ibf
proaec'utor's estate, if it were ten |{i
lb an it is, waa little enough to mi
reparation.
As to the letters pro<fuced in
thoughts it seems are, ttiat th«fy I
legitimate, but a apurious issc
1* Because the ttite dotlt no wtj
character.
It the author of the UcrtfonI Lc^
r1
or A a.
^ the Murder of Mrs. Sarah Stout.
A. D. 16e&.
tl2S4
, or perhaps no knowlalffe at all
takes every tbin^ on trust from her
^^ ^rAcl relations; he ought not to he so
^v^v -ft-liat the stile does no way suit her
*^t«?«" - If by stile, as the word g^enerally
^•*<^»'"«5't<)od, you mean the onler of her
fif^"^*^ , or the manner of her expression, you
^ *^^^'- KB she roi<jfht ha?e sense enou||rh ti> be
^^^"^I'ao*- of those compositions. I it I find
*^^^W^ so bold wiih llie use of words, and
' ^^^nrm so differently from other learned
[•■• ^ij^^^t in some places it occasions a little
^^V**-^' to understand you. If by stib- then,
•^? *^^^^ine, you wr»»!d «';jfnity the subjecl of
5 *^^^iOuv8e, or the nuittcr of the coinpo»»re ;
•• ^ '•iiorc reason to lliiiik, than 1 w ill at present
•'^^ I'^ublic, that ihe«ie letters do well enough
^\ *^^r character with some that know her :
1^^ ^ *"»iust tell you, that i am ready to believe,
Mj^*^«r mother been asked the question some
^*^y*^*« before she died, when she had some
^?^^* ^ith her one eveninc^ in the p^rden, or
.^^JJ^^ tlie time when Thcnphilus was sent for
Jj?!^P*^?e her, about her fallinfi; from theliyht ;
" '^'^y* at these times I cannot think her mother
^ 'W^ ^^^ denied but ttiat these h tt< rs might
w>
-■•■'C^* *■ now out of a capacity to defend herself;
.^ .Sr*^ Upon that aocouni it mi^ht seem ill with
'^ ■ a?y*^P* ^^ itf^^ upon her ashfs : I shall
r^ ^ppfbre say no more, but that I would not
*^ 2?^ y<*" ^'^ ^^'wy **'*^*^ ^1»^ rliararter, lest you
I^^IbU happen to make ^ruwl an old proverb.
^- J. 'Because the mother doth atfirm, the
* ^tkllers shewn in court, were of a smaller chu-
c^tfeler than ever she observed her d&U4rhter to
. finite ; neither doth her brother think them to
*te geouinc.'
:- Would it not have been very odd, if the
■other and brother, who came to secure the
''japutalion of so near a relation (though never
10 well satistied that it was her hand),
■hoald have said otherwise than they fiid 'f Fur
. my.ptrt, I take both their answers to be so
^%aosti8(ictory, not tJ s»y foolish, that nothing
the relation they were sfieakiug for can
d their excuse.
The mother being asked by the judge whe-
ahe thought it was her 'daughter's hand ?
only, * How should I know ? I know
f wbm was no such person ; her hand may be
* OOQDterfeited.' I)ein<; questioned again, what
-!ihe would say to it ii' U had been writteu in a
'BBOK^iober stile? she answers, * I shall not
^ My it to be her hand, unless I had seen her
• write it.'
The brother being interrogate«l on the same
aimtioii« says, * It i> like my sister's hand :' tint
feeio^ asked* if he did believe it was her hand ?
He replies, * No :' And why ? * Because it
doea not suit her character.' Now let tlit*
world juflge, if this contains any more than if
the mother had said, liecause she was my
deofrhter, or the brothei*, bcKsausc she was my
'■ilter, we will not believe it, lest the world
■bould ktok on her to have been a lewd woman.
. 8. * Because there was no mention made of
VOL. XIII.
< these letters, till the common report of her
* being with chiM (which had been industrious-*
* ly spread almiad by several, but by none more
* zealously than by a nominal Q: inker, her fur-
* mer admirer) was provet! to Ik- false. \'C.'
If (licrio Iftitrs werr taken notice of bo soon
as the report of her bL-iuij witli i.hi'.d, it was
very eai-l}' ; for lliat mi^ruing slit; was takcu
out of the water, it was wliisirerrd in the coun-
try, and lit nii»Iit I hcani fntm joiuc in London,
that thoy hciioved it \ery lilit;ly ibr l»e»' to be
with child; and that to prevent the ensuing
inlkniy she had uiaiU- herself aw uy. This was
no more than what i-: ffORc-ridly sns]»ected, when
a siugic gcntltiwumau is by any ine :»3 acces-
sary to her own death. 2So ttiat v;i.!'<)ui dis-
pute, if the nominal Quaker had u(tl !;ceu con*
cprncd in it, the report would have spread
wiihoul iiim. iiut 1 judge ibis epithet is
bestowed on him, not so much fur that he
thotiglit and reportoil her to be with chdd»
wliich hundreds did besides him at that time,
but because he w as so very officious to prove
her hand by his receipt.
This may indeed be thous^ht a mean-spirited
action from him, as he had been her i'ormer
admirer : and 1 think if U.t hand- writing
could have been prove<l without iiis apjirarance,
he should havotirred last. However, I would
not ha^e you so very angry at him, since I do
not fnid tiiat he got any thin^ more by ii, than
to have the judge informed iliat he was one of
their own Meet. Aud if ibr this only he must
be a nouiinal Quaker, 1 could tell you of some
thai have had great parts to aet in this prosi'CU-
tion, that are as tar from beiii<.r real (Quakers
(if to be so is a perlection) as Mr. \\ .
4. * Ueitause 31 r. M arson and Mr. Archer
^ on the trial i^wear, That Mr. Com per deposed,
' that Mrs. Stout was a inoirest pri-son, &c.'
When ^ir. Cowper was before the coroner,
he dreamed not of the n])proachinir storm that
v.as coining upon hiui : and I think it was not
reasonable that he should concern hi'nself at
all with her character ; there were not want-
ing thoiie who were ready enough to think be
had been too familiar with her, and that on
some resentment taken at his carriage to her
she had destroy eil herself: so that if it were
only to wipe oflf this suspicion, his account of
her was no other than what any man under bis
circumstances might have given. J cannot
tell what you might have tluuiijht of him, but
had he told the coroner he knew she was me-
lancholy ; that it waH upon his account, for
ihat having formerly lieeu very civil to her, he
grew of Uie sick of her ac<piair.1'U)ce ; and that
liecause in his last visit he had betrayed siMiie
little indiflference, and notwithstanding her im-
portunity, wouM not stay to lie at her house;
she hadthereforc in a passion thrown herself
into the river; if Mr. ('ow|)er, 1 say, had
i;iven the coroner such a relation as this, I
should have thought him a person of very little
understandingi
As to her melancholy, I believe it was such
as did make ber head and her heart ache also ;
4K
1935]
11 WILLIAM lU.
and that it was more than a common hemicrane,
whaterer yon (who had perhaps no jreatinti-
snacT with her) may imagine, or her mother
and brother g;i?e out, I am satbfied there wants
no proof of such a melancholy as was next to
distraction. There is a certain gfentlewoman
now in beinjsif, who cannot deny that she had
heard Mrs. Stout wish herself dead, 8ayin§f,
ahe was the miserablest creature living; ; and
that she hoped, if it were possible, to die afW
inch a manner that the world might know
aothing of the matter, nor e?er so much as
mention there had been such a i»erson living.
But indeed her melancholy is too well attested,
to be so much as doubted of by any disinterested
person ; and therefore as you are apt to tliink
there are many frientls anil relations bigotted
to a parW that will not boggle to tell a lye to
■avc a friend or near relation from ■ 1
suppose you mean the gallows; so, on the
other hand, I believe there may be those in the
world who would not scruple to tell an untruth,
which is of near kin to a lye, and if it were in
their power, would bring a man to tlie said
place, rather than it should be thought a near
friend and relation was in love with a married
man.
The gentlewoman you take notice of, so
much importuned by the deceased to stay with
ber that night, if she has not altered her story,
will acknowledge that Mrs. Stout did tell her
she was very much indisposed; and farther,
aaith she, you see I am very nielancholy, so
that it will be the greater unkindness if you
leave me at this time alone.
You say there are a thousand pounds want-
ing of her ori^rinal f'vrtune : 1 wish you had
lold us wlietlior you srt aside the charge of the
prosecution ; if'you include this in the want,
one half might be cxjuindcd that way ; for 1
suppose there up.s notliin^ spared to carry it on.
1 have heard i>i'i)(>ti))le's wantinuf that i^hich
they never had ; an<l 1 am crwlibly informed
this is the ease in d«*bate. Some of \ our coun-
trymen, tlial have been many years acquainted
in the t'amily, do tell me there is as much
found as ever she could be tlmn^ht worth ; but
if you woubl be credited, you must give better
proof than yours, or her relations say ko.
However, I think this to l>e very lillle mate-
rial ; she mio^iit, thoiinr|) jn some things* be very
frugal, in others l»e as extravagant ; but which
way soever it is gone, it si-ems notliinir less can
repay it than the lives of persons who had
never seen her.
Thougb the Quakers' atTirmati'm will not l»e
taken in criminal cases (it whs well, I think,
that it was not admitted in this particular one), '
yet they liav** now the pvi^ile'Tft to publish their {
reasons, «hy they suspe(;te'l !VIr. (Jowper to l)c
privy to the re<'ei|)l of any of ber wowi y, more
than that which the writmgs found in Imt cus- }
tod}', and his own acknowledgment do evince. •
I am sure he has hid them a lair dctiance, 1
having openly chidlenged the worst of his ad- '
Tersaiics to discover \ihat they can of this na-
ture.
If they think fit to dnw ap ut tluf rf tkb
kind, I shoakl adriae them to OMke ate ef asoN
abler clerk than the aathor of the HcitM
Letter; fiar if he haathe aiaMgamaot, itisi
great chance if we are not caterwoed wiik m»
of Mrs. Gurrcy'a dreama,
lous innoeodo.
lo thia place we are onee
with the use of the epiglottiay which job ai
hafe oontmuaUy (to cinae oa the auniUi diki
aspera arteria, tmless id ezpiFatiao. Oa Iki
contrary, I hare told you (aod will aobmitBf-
self to any anatomist in Europe), that it ■ ir
the most part open, and never exactly dsm
but upon deglutition; so that whatever ^
build ujpoa tw notion must fall to the gndii
1 thmk it is but reasonable, that Mr. hna
Hatsell return his thanks to you, for thecv-
pliment you put upon him in the ckMe of jfm
letter. I am ready to apprehend, thattbsnil I
no trial suffered to be pnnted, till afkcr the CI- I
aminatioD of the judge, and his penuiaminl t
obtained ; and therefore naust acedi ihak P
onsiasions and alterations, especialiy of pil f .
moment, aa theae aheuld be, waich, yooiBB» Lf
ate, ia a very great injustice to the warii m
injury to truth, aod too ainisler an actisa Ari
^udge to be guilty of. But let who will md
m your way, I see you will have a i^rt
them ; and rather than be thou^t to haiaii*
thing at all to say, will be telhng us of Ai^
which, if poesibte, comes to leas.
Thus, to heighten the auapicioo ef |*Mi ^
are entertained with a tale of a tub, ahMit Ir.
Stephens's being ill ; or as you express it, Ilka
with a strange sort of (it. I hope, Sir, it ii ■!
always an argiunent of a man's guih. daili
cannot carry himself uncouccrncdiy, iHwofcl
sees his life hanging by a hair, or depeodinpM
the delivery of a word' or two from tnefurflMi j
of a jury; it is time enough to censorcwhi *
we (Mirselves have undergone the tritl. J
Your story of the wine-cooper 1 hare ssaf
heard of; and really, 1 am so desperate jcilia
of your relations, that 1 dare not credit th«
till they come with more authority: wins I
have better inforuied myself, 1 shall be baiV
able to give you my oniiiiou.
Your prayer, inethinks, with which ?«■
conclude, had better have been lell out ; ase^
though it wants the length of the Pbana^
whoever takes notice of the spirit ihst niil
through the whole letter, will need no irfi*
ment is to persuade him that it proceeds fna
an hypocrite. There is httle appearance tW
it is your desire the innoceut may be cleaw
from as|>ersions cast undeservedly oa dies,
when for more than six pages, you are vestaf
the utmost of your malice, and by the bn^
means imaginable, would insinuate tlio«e j;**'
tiemen are guilty, who, for any thing f*
know of the matter, may be as ianooeot d
yourself.
Let me tell you, Sir, 1 think it a very Wi*
tempt, and such as it is great pity dot» tm
come under the lash of the law. H bcfl af**'
tkmaa haa taken 4U8 trial, and it do« apf^
Jtr ike Mwrder^Mrt. Sarah Siaut.
A. D. 1S99»
[1238
it trial, tbcK if M proof of the fact be
ed with, nor indeed aoy thing on which
id M mueh at aaiupicioD, imleM that ot
I oiifortiiDatdy the lart penoo io her
p ID a word, wheo fiictioo and personal
e appear the only motives of the pro-
, wtioeyer brings the business afresh on
e, does only expose the restlessness of
mind, and plainly efidence that he is
i true gentleman, nor a good Christian.
3 lookiM over your postscript.; and, as
pUces of the letter, perceive through
luiess of your intellect, or Your nnfit-
r the" controversy, you have made
or prognostic of betraying a little ig-
yf all yon teH your friend, you make no
It he nas heard, that the suigeons that
Mrs. Stout's body, deposed she was a
Now if he had heard as much before,
nake no doubt he had, I don't see to
'pose, or what news it eoold be to in -
1 of that he had heard before ; but be-
lli it had not reached every bodj^'s ear,
no doubt, this intelligence is to inform
d. But doubt you as you please, had
the suigeons deposed as you report, I
B ready to doubt whether they were
1 or fools.
nothing like it in the affidavit, of
^ou say, you have delivered na a true
tell U8, indeed, * They found the uterus
ly free and empty, and of the natural
and magnitude usually in virgins;'
y this will not amount to a deposition,
was a virgin : all that can be hence
ia only that she had not conceived ;
}e possible for a woman in coitu to miss
ptu>n ; if missing of a conception, the
ay, notwithstanding the carnal oon-
ia the natural form and figure usually
I ; Mhy then, I say all this implies no
a a bare probability that she had not
I cooiess, till now, 1 never heard that
re or magnitude of the womb were
d amongst the indubitable marks of vir-
md as to the state of the va|pna, the
m caruudes, and hymen, which mo-
tpercom herself could only guess at,
IO notice at all taken ; if there had in-
weuld only have furnished matter of
the body having been so long interred,
vou see, for any tbiog pretended to
odavit, or elsewhere, she might not be
; though charity should oblige us to
east that ahe was.
Postscript.
this Reply went into the press, I have
nned by a gentleman of unquestion-
lity diat the story of the wine-cooper,
MM of tlie HerUbrd Letter, took its rise
B what follows : There was, it seems,
going down to the assises, who had
MlHie !• be tbrowB fran hii benty
and was taken up as dead : beinff carried to hia
lodging, he began to rave and.talk idly ; which
was DO more than the effect of a delirium,
arising from the concussion of his brain, which
might have made any man light-headed m
well aa he ; and which nothing but one. as mad
could have improved after such a manner an
the letter- writer has done. By this the pub«>
lie may be informed of the disiogenuity, not to
say down- right villainy, of some people in the
world ; who, missing their design of taking
away a man's life, seek all possible ways ok'
murdering his reputation.
SOME OBSERVATIONS
On the Trial op Skncer Cowper, J. Iff akaki,
£. Stephens, W. Rooers, that were triep
AT Hertford, about the Murder of Saaab
Stout ; together wrni other things kb^
LUTING thereunto.
To lead, and to give some light into this mat-
ter, it may be necessary to give some account
here, how, and upon what occasion the ao«
qnaintance of Spencer Cowper and Sarah Stout
b^an.— The ground and rise thereof took ita
original from lier father, who at allelectiona
promoted the interest of the Cowpers, to the
utmost of his power ; through which a great
intimacy was created between the femaiies of
the Cowpers and the Stouts ; which did natex**
pire with the death of her father ; for her bro*
ther, by the faiher'a side, continued his respecia
to that family, and spared no pains to espouse
and carry on tlieir interest, in order to their
being chose parliament men for thai town.
These obUgauons engaged the two families to
a frequent conversation ; insomuch, that whe«
they were in the country, some or other of
them w€re often together, as well the younjg
women as the men ; as ajipeared by what hia
brother's wiie said at his trial, < That she was
* but six days at Hertford the summer belblt^
* and that she saw her' (to wit, S. Scout) < every
< day.' Anil great pretensions of love, and
proffers of kindness, were expressed by the
Cowpers in general to the Stouts ; and by this
man, Spencer Cowper, and his wife, in particu*
Jar, to tlie deceaseo young woman : and thus
it continued, in appearance, till the day that she
was forced off the stage of this world!
When her father died, he left her sole exe*
cutrix, and gave her most part of his personal
estate : and a considerable part of it being in
the brewer's hands, and in malt, which site sold
afterwards, she was often advising with one or
other, how to dispctse of this money, so as le
have gooil securities for it. About a year be- .
fore her <leath, she went to London about those
occasions, and lodged at a goldsmith's house ;
as soon as the Cowpers' wives heard where she
was, they made her a visit, both Spepeer's and
his brotlier's, and invited her to their honsw.
Whilst she lodge<l at this goldsmith's house, h
laid out several hundred pounds lor her in ma
tk)kela, and other aecuritiei ef tbefofw
w
^i^
W
w
11 WILtlAM III.
Trial
1930]
\fm sbe h&ing not v> Uling to by otit m«ieb tliat
way, liul rotber oa som« mnrl^Hi^e of luod, whe
wroi 10 ti tawyer, witii whoui fite wn« ocqtiaioi-
«il Ift M^*' if lit coultl disclose of some (or her ;
}i^ toll I lirt he ci>ultl tic^lp ker to a mortgage Ibr
SUO/. but ih^y woul<l ^ate but live in the bim-
dwil; so «hV lakes it mto tfinsklrratUm ; but
otWwJinlB, slke bfint"; iitBIr.8|ieDcerCow|ier'ftt
Qml lit* fiiHin^ inl*> somR iliscoofs^ witb her
Almut Iti'r Mtf^irSi aud imikv-slamiing eh€ biiil a
CotiniiWraye sum ot raouey to tuil out, he jirof-
fered tu do her till ttie kin^lopj^ that by in hia
pD^verj aoil would hetp^ lit^r to u nmrtj^qfe of
briii thrive liuit^s ibe vnltie ol lUe juoney leut on
it, at six in ibe Uuiiiirt'd; and uould Kce that
the tiUe jtU^uld btr giHn!, aud be as careful in it,
m if it were his ovi'i) conct- rns ; and if she
waut^d cotiiis*'! at miy tlifi**, either lo piit out,
or to recotcr moiioy that was owiog her, <^r any
tiling «i^e, fi>r vpfiich she had occasion, be
would pve II h^r ^^nilis, which from an^itlier
mui^t Lt^si her ^naie ^uiopaii i «o she actf ptt^d
of his profFer, and toid him, s\w won Id depend
oo hi^ ndvicc* not question iuif to liave j^ood a^-
curiiy i or her money. When she c^me home
to hl^r hnlgittg, sliw told the gidrt smith where
she h>il£rpil^ that tmw Mr. SSpencer Cow per had
pnmimd 10 help bei- to seeui'ities, anti hts ^ras
to di-^p.iie of iier money,
fck>oti nftfi* thi»j, ^he wtut Ikonjc to Hertrord,
•nd told her mother the sam^, and a&kcd hpr if
ihe bad any money to put out ; if sh^ had, it
might go aiDon£ri£tber\aad her inoihershoubl
Iwt e no trouhb with ii ; for she would pay
her the interest aa it h^^came due r her uiottier
then ask^d her, if Eihe couM so far cottdde in
binij as to receive her mooeyj to pay i', and to
maki' tilt' wriiiEi£^!$j and lu [ituk after the title,
and all withoui tiic^ kispecti m of any hiMly t^hef
«he said, Ve««, she beti*rved thai he i*iis a Tt-ry
honest omu, and *jh^ thuiight fihe mighL trut»t
htm with more than bhe bad to put oitt ; aiul
be beiij^j a man of it^|>iiti?^ it \%^& M^tw him to
itroo^ hifr. Tht'ii jicr uiofher, thinkiu^ the
iame, s£a\e h»^r 150/. to put amongst her's,
wbicb she hnlh nevei' beard of aincej but it ia
gone viith the resL
About a luo^nh aOer, Spencer Cowper eame
to Hertford, and tonk lLNl|fiiijr.s for his wife aad
laind}', and then brijii|^lu hb wife to j^ire this
^'01 1 II 11^ woman a lisit, and to hi? further ae-
^uatutt'd with hi^r. After iliis^ she !»ei?Hied to
lo^e and like htri' comp»ny so well, thai she
Baid, * 8be did uiit dp»,ire the comjiany but of
* ftw, or none el**!- in llie town ; and ihrreliire
* wi^ulcl mnkf im returti*i ol tiieir viiats^ lih liip
* weirk bel'Mf ibe M^ni home to L^mdon ;' and
would come frt^qiif mly two or three timefl in a
week i'^ visit h€r : and ^rben her buiibaud nas
in the i:tjuntry, he ^sometimes won hi come lA^itb
heti and ihert^hy had ttie ojjportiinity of Am*
coursing her shout her affairs.
When ahe had giitUered hi near what sh^ la-
tended he sbpuhl put out ^ from the brewers and
others thai were i*Tdebied in her, she writ a let*
ler (o London io hivn ; and one of her ac-
qtiamtanco commg to vieiit her, before bhe had
k)
efSpetwtr Cmiper nn^ clAm, p8ft |!i
sealed it up, she bid her rrad it^irtiidjilwii;
in whicb Mipr ihe writ, fi*. 'Tkiibtyi
* thoufiand ptmoda to put out, tod tint
hundreds of t^ were then reiidj; m\ i1kii| «
* to make up that sum, woiiM kmiiili
* time, or so soon ai; he could d»po«eof i^
* rant^geously for her.'
After this, she lereral timet, ia
with this woman, hath told ber/ Tbihi
* huyiug an estaie for her, hi p^vM'
^ which he bid recommeuded to hc^r^iti
* traoidinnry penny wdfth ;' anil tlmt it
* hettolil fur a tliuu^aiid pounds, but U'
* it wan worth more; and if hecoMltinwt
* her with it, be h^fikcd upon il to U* s(* ^
' harfTuin^ ihat he would buy it for bi««««
anfl she also told her tuoiher the sanvr.
The next (jiiarler ae^ons uAer th«,
wasthebst before that siisis^e, atnliid
her days were eaded^ S pence i* Cow^pff
Horlf'jrrd^ and in the eTifaibg he iT%oaety'
quired for Mrs. Sarah 8tout, at litr
hoiise^ where lie %riM» not ^t all
lodge, be not bar'mg lodged ihext fw
years, viz. tint since her Mher died ;
about an lionr^s diacourse with hrr, Irf
' He wa* destitute of a lodging J or hU
* Bate^* (w here h« used to iwlg^-) * wja
' po^ed, and made a great u^i^, and lif
* hke to lodge tliere.' So »he ibi>(n;lit
could do no I^h^ in civftity^ than tsk
lodge at her mi*lher*« houie, he kunnij
broitght her thai mongiige deed fi^r '?t.?rtl
which he mado s.iith a hmg di^^twursf il^
trial I nhich money had he^n earring
to bim some time befure: at ihe rnsai
which security, ube seemed to he im
pleased. But Aha having tohl him, tkitik^
tended to reserve some part id' h^r p#ii**
her own particular uses in case fche W
marry, vvhi( h she woidd put oui tW ditl
she fiauni^ enough tH-stde*; he* wA^md
then to keep it private fr^^m all perif<iov
her et}d wnnhl be frUfilrati^ ; wbirii ii
hkelihoodj he thought hhv h d, Mail tW ^
had knowu her iiduil in thai p^riicuhr t^iilin
self, he haviijfj adcibed her to p<^mu'v. "
Indeed H. Cowper doth suui; ''^ '^ *"*
lately presetited to no me id the iU¥itMx-> ■*! p#
liameur, (see p. IW9) litat hi* |m^ i'uli<r*lij
not the imjKiilence in jiiiggest at his [fmi ji**'^
put in tuind of it), Ih^it wh^t khty B«x:n^
nf was done ior »be ^nke id'^iHiu lti*t™
did demand a proof, that he hud ar.v id ibtj
ceased yuunif wi^iikan*s o^ottey io ln« m
and itaiiufjOt be i^uppctireti thai be \%Mim
real it, if he knew ihere wjtfi any cm** iliw'
coubt make jn^skive pro#if of it ; itf^
wuul J hai e htjtn iu vuin m bite dtnu^
her moilier did then ittcuipt to «pi^k
knew in that particular, and otlrer
but waN stopptd i^everal ijiue^i^ and
to apeak, unless! she woL.hl swi«*rj w1
knew well enough, her ptfrtuaiiut ^
admit her to dn^
The next thing ob^ervible is, ihe
t»iin, before* tuetitioQed, wbich
W^ ^
Jvr the Murder ofMrt. Sarah Stout.
Ji. ty. 1699.
[ISIS
stter sent to bim, which gave an account
Hftooey she inteDdetl he should dispose
r her, and that she had several hundred
,ds of it then reody : she being with her
lay in her chamber, about two weeks be-
her death, she bid her look in a drawer
(*, and bring her the uioney therein ; upon
eiving it, * Am not I very rich ?' said she.
other dcnianding the reason of tliat qnes-
» ^ Because,' said she, ' it is all the money
M I am now niislress of;' which was only
ipnneas and a little silver, notwithstanding
md so many hundred pounds in her posses-
I nut lonfT before. And about the same time,
being m discourse with another person
ut bcr concerns, she said, * That Spencer
Hrper had a great deal of her monies in
■ bands, and that he was to have more :*
her relations d(» miss about a thousand
ads; and they know of none she disposed
■y other ways, aUer she writ that letter to
I. And when her mother asked him before
lord chief justice Holt, what money he had
it bands of her daughter's ? He said ' None;'
•bo said, < Hethougiit his reputation would
ive secured, or carried him above suspicions
cxaminttions of that kind.'
kit it may easily be gathered who carried
money away, fur a great deal of it was in
i ; and that very morning he went away,
» be had lodged at her mother's house, he
r much importuned her to come to his house
Loodon, and told her how glad his wife
dd be of her company, and used many ar-
■ents to persuade her to it ; and at length
i, * He wouhl not go out of the house till
tf bad proini««ed him to come:' but sh»; re-
Bd to prontisc, and said, ' She did not know
beoslie should come to Lf»ndon.' Tliis dis-
ne was in the hearing of one that will evi-
ee it u]»on (tath.
%e week before that assize, she received a
er from his uife, which wiii? writ uHer ttie
j|l manner, us she had several not lonir be-
i, very earnestly inviting her to her house at
idoo, with hii^h expressions of love; and so
eh the more she desired her comfiany tiien,
rase she believed they shoulil not come to
ft at Hertford that summer: and in that
rr teib her, ' that they must ex|»ect her
laliaud at their house at the assize;' ihe
icb she told lier mother and others who read
letter. This letter iSpenper Cowper con-
ifed to the c(»roner'%ijMjuest, that he (irdered
wife to write it for his Imlging at her mo-
r** bouse; but when he was examined by
(lord rhief justice Holt, he then denied it,
I flaid, • bis wife writ no letter:' but her
ii|l, Hirah Walker, k'ing present, told him,
la wile did send a letter, and that she herself
wkit in of the post- man, and ga«e it to her
MHrets;' so tlien he could not deny that
^ was a letter sent. i
Aad accordingly he came, and sent his horse
H^r ; and being asked, before he rid from
* daor, whether he would conic to dinner ?
)«id, • He WM not cettain, bat he would
< send word :' but her mother and she staying
long, and he not sending, they sent her maid,
to see whether he would come or no ; who then
quickly came, and dined there : and when he
went from thence, the young woman, 8arah
Stout, going to the door with him, asked, * If
* his tlioughtto lodge at their house?' He said,
< Yes, he would come and lodge at their house.'
This she said as s<M>n as he was gone, and then
bid the maid go get his lied ready : at night,
when he came, her mother being in the room
with her, he fell into some discourse remote
from any thing of her daughter's business ;
and, after some time, called for pen and ink^io
write a letter to his wife, although it was not
post- night, nor did any carrier go next day.
When he went to write, her mother and she
went out of the room, and staid a considerable
time ; but it growing late, the young woman
went in, to see if he had done, and if he would
jiave any supper ; and what he desired, he had.
Her mother went not in again, because she
knew her daughter expected he would give her
some account of her money, and have brought
her security for it, as he did the sessions before
for 200/. ; and she findinir that he would not
8|»eak of it before her, would n(»t interrupt them,
but gave her daughter time and op|M)rluuity to
speak to him. What discoun»e they had, is
not known ; but sure enough it was very dif«
ferent from, and inconsistent with, what he
rendered it to be at his trial ; for he had writ a
receipt in full for use-iuoney he paid her then,
whicn lay on the table, but was never signed
by her, all hough he pressed her to it several
times, and hid her put on her considering-cap,
(as he confesbed to the coroner's inquest) and
asked her, If she \%as lazy Y yet stdl she re-
fused to sign it; which plainly shewed her dis-
satisfaction, and that there uas more due to
her, else siie would never liave reruse<l it.
Between ten and eleven o clock, she called
her maid to luHke a (ire in his chuiuber, and to
warm his bed, in his hearing; and while the
maid was doing it, he went out : her mother
hearing the door clap, went into the parlour, to
ask her what the reason was of his going out
when his l>e<l was a- warming, anil, to her sur-
prize, found she m as gone tf»o, and never saw
her ali«e afterwards. She udinirt-d what the
meaiiin<4f of this should be, kiiowinir that she
ne\er used to ^a out so laie ; lu itli«-r cf>uid she
imagine whither they should U'lroue ; liut alter
some considerntion. did think he imgl.t tell
her, that the secUiitit'H she ('X|ii>itf(l v-.cietobe
siirned and sealeil souicw lit ic in '.If io\i u ; and
that he had pers<iude<l her to go mJ upon that
account, and so was in expect:) lion of \\ivn\
quickly. The maid that was warntiL]^ l.'.s !>ed
stayeil, ex|>e('ting him to come up; li.tT.kitig,
when she lieani the noise of tlie door, lie w as
gone to carry his letter sniiK^Mlu're ; m liii-h, it
is thought by some, was his pretence in going
out, thereby to draw her to the door, to let him
out ; for there is no ground to believe she went
any farther with him willingly : so they sat up
all night, both her moUier and the
^miF
^wi^
1243] 11 WILLIAM III. Tnat of Spencer Caifsper and atlttTt,
jietiifisf them every ininulc*, not k no wiug- where
to Jook tbr H*fr at iml tttne ofnigUt 5 but if tliey
Ltti!, vvfiulU i*e%er liavc gone to the river, nhere
sli€' wav foimtl Hoalini^ the next mornmg ; for
lb ere was nn irianner of eircum^tantf?* either
in her wonh or aelionh, Ihiit diiJ give them any
CJkum U» ihink she wtiukL drown herself, or that
she e?er had anj^' lUlng of ih^t nature in her
thoui^lilii.
No KOLtner was she taken out of the riFer,
but it was spreiid, hv his party, Wlh in cil^
and ctiuutrj, tlmt she was with ehild, an J liaa
tli'owne*! herself to avoid the sli^ime. That she
wa>^ not drovvuifd, is dear unto a] I who are im-
pfirtial, and have had a true account of the
caise, either sit the triul, qt oI her wise ; a« il
plainly appeared hy thbsie selLleTuents of hlood
and hroJEia^ ulioot hor hetid and neek, and oa
one of her arms ; and her buving' no wafer in
her, hut was empty and laiik, when she was
first taken out of ih'^ Wjitt^r,
The evidence was very full and ]duin agiLitiit
them, and the judgments of the doctors: fitiMid
firm and jsjood* und are not, nor ever can be dif-
prort^d, by all the evasions and dultnctions of
vofnutacy drowning, and drowning hy acddent j
nor by all thoce little Ericka made use of by
tbose*on !be other side, by drowninij, and lialf
drowning of dogs, and otiier such like experi-
ments, whereby they have only exposed thif en-
eelvGS, But when she was taken up a^ain,
After she had heen hurled six wocka, in order
to be cleared of ibat infamous report, wbieh
then was given out, for the only reason why
she drowned Uerstlf (lo wit), ber hein^ wiih
child ; then nothing could be n^ore plain, than
that she waa not drowned, but came hy her
deaib some other way, a^ the doctors and sur^
geons did j^^ive tbcir ojvinion upon oath, before
the lord chief Justice Holl^ and at the trial al&o.
And it is very probable, that these three ffea^
tleraen, John M arson, Ellis Stfpbens, and Wm.
Rogers, knew very well bo^v she came hy her
death, (whose livt'^Spencc'r Cow per seemed to
lie mote Under of than of bis nwn) hy their dis-
course that night {ter death ^vas, about an bonr
after she \ras tni^f^in^; for %^ soon as tlkcy
eam^e into tlieir JodgtU|rs at John (Inrrey^ci, they
eonld not furliear^ bnt began to ask hitn several
question,? ahuut her. Ahbongh wtf do not ua<
der^tand tl»at either of Ihem bad any former
knowledge of her I yet M arson pretended, tliat
he liad made love to her, and Ibat she had cast
him ofT'y * Bulf^ S3t{l be, * a friend of mine is
* even with her by this limef then one of the
others asked iiim, Mf the busioess was done ?^
* If it is not,' said be, * it will be done this
' night.* * Yes,* says the other, * ber business
'it done ; 8arab Stool's courting days are
^ orerJ What couM have been spoke idaioer,
eicept they hail said, ^ 8heis deadf ' This was
positively proved againi^t lb em. Aho^ the said
Blarson, when he came into his lodging, was in
a greiit sweat, and e^lleil for a Bre to dry his
feel anti shoes, they lieing wet both without
aiidwiibln; and pieteuded, that be ^^ at: just
then k'ome from London^ it being then between
eleven and twelve o^cloek at night; vWruit
waa proved, thai be came into lowti itu « _
three bo ura before. And when M»]i»ai4d '
the other two, ^ what tbey bad «pet!l thit dif ?*
one of them asked, ' what was thai ^ Wf
' He was to have forty or Efty puuili (« JH
*■ simre.' The said 5l[irson alia yd\a^ §$
money out of his pocket, swore Ihitbevnil
spendfitall next day, torjo^^ the bail»«if|i
done. And w b e reas they say, m theti Cm t
the parliament, ■ The^ are mea in pvA lt»
* noss at London f if they are to, il hM bi
well if tbey bad staid in it; for sure HM^
tbey had nnj^ood business at Harlfoni; nBw
did they pretend to any at all, biit uid, %
' came 'only to see foshiona^^ Ut tbe mmt,
w here they lodged.
And it IS very observable, bow bi^M) "fct
pl^Lsed Spencer Cnwper was at her tH^iiif t^
up, and hciw Ue earnest) v besought ibc juija,
that what the doctors did and ^d thuny m^
not be allowed, or taken for eirid*fiicf^i^
legiugf that she ought not to have betn tibl
out of hvt grave without legal antlicinJjfT fe
prifitetn-specLion ofjiartics, alu»fHltcr itaa^
themselves ; ^bei'eas there oo^bt to hm m
some otk both sides, he savs, lest thr^ iMIi
have broke her icull, and tW genllinfico Mt
harelieeu trepanned; and yet doctor €uii|»
air William Cow |>er*s doctor, was wnii ii^
all the while, as doctor Coats worth u^iM
judge, and was sent for, on purpoM- to tilt
any such objection; and did set bii lii^
the certificate, nf her clearness of that
whh the rest of the doctors: which is 'm
loweth :
* We w hose names are here uodM'
' having ejcamined the body of Mi«. Snl
*• Stout, deceased, do tlod tbt: uterus I'^dM
* free and empty, and of the natural 6j;wtB
* inaguitude, as usually in virgins. ^^^*'^
*■ no watfr in the siomacb, inle±itincs^alKl«M|
^ lungs, or cavity of the thorax. |
JqUH D|1IS£UL£, f^
WitxLiii CoAisWiem
ROBEAT DiilsniU,llJI(
JoHK DmsBALE, joi« I
Hertford^ 4prU SSiA, t699< (Copi* vfiij '
When all mouths were sto}^)ed, ioii p^^
silenre in that malterf and no reasrju cooU l|
given why sh# should drown ber^; iM
Spencer Cnvvper wai«t a loss, aod katwril
what to pretend, why she sho«U do la; W
(to use tiis own words) siime htarls w«J*|5
tc^etber, to contrive that she was in I«r« iil^
him.
In order to this desigri, those letteis
vented, which were protluced in cotiri, (fcli
a word was ever heard of them before
taken up again) and a witness was prufi
prove the receiving of ibem both; but*
Jriend Marshall^ who was hb wilit'Cs, feii
forgot the year when the first v*** wrilt •
«aid} it waa March w&a twdveoioutli
amabi 1^
I fiir the Murder of Mrs. Sarah Stoui.
rf was refmhed by the second, which
litd balfbor days after; and itieems
lad forffotten to date that second teller,
to giTe It aay credit at all. This was that
I b0 calls that importanate letter by which
■ ips ited down to lodge at that gentle-
M^ hoiiar, which was dated the ninth of
b.
w if her maid Sarah Walker's evideDce is
fed, which she begins with, * My lord, on
lay before the last assize, my mistress
It receiTed a letter from Mr. Cowper's
r^ to let her know we must expect Mr.
pper at the assise ; and accordingly we
ided him, and proTided for his cominif .'
ii was the same day on which he says he
ed her letter of invitation that she received
It's, by which he invited himself down.
It if she had really writ that letter, his
most needs be writ and sent the day
her's could come to his hands.
1 how those letters should be known to
from flarah Stout is very unaccountable :
there had been such a person as Mrs.
Ellea at that coffee-house he mentions,
li, apoB enquiry, we cannot hear there
what be had to do to open her letters P
m couhl he tell that they were for him,
me from Sfrah Stout, seeing they were
«cled to him, nor cither S. &>wper nor
nt within them, but only Sir ?
prove these letters to be her hand, he
his friend Alarshall to shew letters
be pretended she writ to liim, as iklse as
her ; in one of which there were thanks
I sopgs. ft is very unlikely that she
I desire or accept of son^, one who was
beard to sing a song m her life ; and
Iftrsball too, whose courtship she never
ed: for he himself said at the trial, that
rarj little trial she gave him a very fbir
. And Spencer Cowper also said to the
r*s tnqoest, that Marshall told him, she
I gave him the repube.
I eonfirms the falseness of that story
he brinp to introduce his letters. And
^ abe IS gone, and not in a capacity to
herself; yet the woman who he says
I with them is alive, and doth affirm it
which is as followeth :
■jfs. It happened one evening that Mrs.
•M another, and Mr. Marshall, and he,
ivalkiog together; and Mr. Blarshall
i^her being a little before, she took that
mity to speak to him, in such terms as
fcsaed it sorpriied him, and said, she did
■k ke had been so dull : he desiring to
whefcin his dulness did consist; she
ifhetbonght she would marry Marshall?
I, Yea ; elee she had done ill in what
d done : the said, No ; she thought it
serve to divert the censure of the world,
NMf her ac^uaintaBce with him.
liiicomst, if it had been true, would have
Irtetshe kept Marshall company, and
ite believe she would have him: where-
mm riM iMid nenr teen kim in all her
A. D. 169a [1216
life but once, and that was but two or three
days before; and they were not so much
acquainted then, as to speak cue to the other :
and tberefoie there could be no grounH for such
discourses if she had walked alone with Spencer
Cowper, which she did not ; i'ur the two young
women having been taking a walk in the 6ehJ,
as they were coming home they met Spencer
Cowper and Marshall ; and they both turned,
and walked back before, and the two young
women together behind him : and she had no
private discourse at all witii Spencer Cowper ;
neither had they four any walk together after-
wards, in the held or elsewhere.
These letters, which were ushered in by thit
discourse, he would have it thought that the
shewing of them was so tender a point with
him, and that he did it with so much reluctancy
and compulsion, that nothing else should have
furcefl liim to hare brought them upon the
stage, if he had not thoxe three innocent gen«
tlemen to defend ^surelv they had greatly
obliged him) ; and he solemnly protested, that
if he had stood there singly upon his own life,
on that evidence, he wouul not have done it :
when at the same time, and with the same
breath, he himself proved it false ; for he says,
upon the recei\ iug of them, he shewed one to
his brother, and both to Blai-shall, and they
both saw it, and read it : that was the last, the
Friday before that assize, when neither his own
life nor his three gentlemen's were in any
danger; for she was then alive. And if there
had been such letters of her*s, he could not
have shewed them to one that in all probability
would have exposed or defamed her more than
Marshall, a repulsed lover, a kinsman of hit
wife's, unto wnom he endeavoured to betray
her ; who, u]M)n some slight or disgust she
gave him, told S[)encer Cowper, that if he was
his friend, he would shoot her. This she told
both her own and her mother's maid : and also,
as it is observed in the Hertford Letter, the
printers, who writ the trial in short-hand, not
naving taken those letters, were favoured with
the copies of them, to be exposed to the worid.
Then there was an account given to the
judge, in the court, of his p^ing to I>eptford,
and was said to be told his father at dinner in
her hearing, about a year and a half before ;
which put her iuto a swoon, if any botiy will
believe it : and the use that was made of this
was, to render her as bad as possible, and
make the worid believe how deeply she was
in love with him. But it is matter of adrnu^-
tion to most that hear it, that he diil not tell his
wife, as well as his father and brother, how
fond she was of him : if it had been true, sure-
ly that would have diverted her from frequent*
ing her company so ollen as site did «N that
summer following, as is before mentioned,
which all the neighbourhood can witness. And
if she was such a person as they now render
her, why did they scek«nd desire her compa-
n^r, as they did ? For she has several tiinet
said, she never sought theirs.
And also, it it as orach to be irondered «t(
■Pfip
I^SH
HIT] U WILLIAM UL Tfid nf Spencer CtMper andptien, {m
th&i £0 cbastc a mim fi» he woM appear to be,
ftntlntie in so flminshi£i|r a coniiitioQ, a^i be iisiys
ht is, sboiilcl order hh wife to write, or biiVe
Biiy Ihtmglils of Nidging; at a hwuse, for saTing
the chariff aV a guiuen (Ihr so he laid al ht^
tmli that hi^ iro»<I Liuiiban<iry to save a guintf^
"hmdhrougblail that ini«chierup<iH bim), where
•o levpil A wotimii rs he would have hertlkOfrifbt
to be tftd ilivel)^ if be hnd h^tn rttaHy ioviteiL ;
which sore eooui^b be was oot, hyl invited
iitm&df ; aod so she told ber mother before he
cmtie.
Bui ii is plaioTy to he iindersbodd, thut the
rcsfiect she hati for bin*, i^as not as for one tbftl
•he heliered to l>e viciously incbiied, hat as for
ail honest itmn ; as appeared by the f rtist sbe
fepo«e4 in him ; nnd ako hb heiog- relaled to
th»t tiimtly, whom sb^, as well as her rela-
t*oii«, dul m bigblj value »od esteem, that she
couhl have put nut only her money, but her
lite inlo »oy one ol" their hondst
Khe hale tliou^jbi vvh»t sort of a malt $hc had
to do I with; she was ao tlecKived by his
seetuin&f s^ibriely wbcn in her con^paaVt &nd
the ifreai iireteodetl kiotiness to ber by him and
hit wife, Jiulh tor her own sake aod her tli-
ther*i», she cihiM nol iaiagino tbat a hrtincb nf
tbiil fmiiiJy could have touched a hair of htr
heads lo liuve Imit her, or have wroo^jed ber of
one ikrlbiotr - she was so honest aod phio-
Jiinirted, itnd £o iuaoceot bpnielf, aod so far
from dfserviog' any iU iistige from fiiru, or ttny
of ihHl fjimih%'or indet^d from auy die, thai
«he, ax welJ as her relations, could have served
tbt^m to the utmost i*f their power : but w Iiat
Tetorns of kindness hav^ het^n inade^ and how
ihe bath betn treated mn\ defumed, no^v she is
^one, and not in a ca|»actty lo defend or answer
lor herself, Icl tbe worbt jiid|re.
Bui it i« efident and plain* tbat most, or
chiE^flv what he made use of at his tri^I, to de-
fend fiimself and hi» Three gfentlcmen, wberi be
was riot upon his oath, is proved faJse, even by
wha'Viint self did sw^^ar when ]io was examined
by the coroner's ini;oe^ i tor when ibf y a^ked
him, if be knew atiy ihin^' thflt troubled or put
her mto a discontetit, or di^crncil she was mC'
Inncholy, or knew any one she was in love
virh, or any caufse why she should drown her-
ftelf ? Unto all whreh he aniivvered. No, upon
his oath ; he discerned notbiofj of melantlicjly,
neither knew he any that she was in love with ;
he knew one ^Marshall that was in lof'e wiiii
her, but she had none for him, but always gave
biin the repnlse ', and she was a very mode«t
woman, and he knew no cause why ^tie gliauid
drown herself
And yet at biBtnal lK)t1i he and his witnessc!;s
pf el ended to know her to be ^o inelaocboty as
fvag near to a distraction i and this depth of
melancholy be would iimnuate a^ for love of
him ; and there lore *ihe drowned herself
Noir what can be more eontnidictory, or
more fully prove that.whieb he sipake at his
irial to tie fal^ei than thii whieli be himself did
iwear? And this warn evidenced by two of the
#9f eiiet^c iuquest| Aod ierecal ifKire would have
done the same^ if they had been siiSered
HjieiLk ; but, aa tbe Irial relates, thrj^ vi
Many observations mi|f ht be made, mat i
staneeii ^ireo, to clear her reputatiutt, ml
prove the falisene^s af what wai^ civ%i optm hi
as, in particular, her 9i> eameatJy tori
youne woman, an acijuaintar^ce of hen,
had kept her company thai »f^rm<Hm,
U'^ed to lie wilb ber sometimei, to my i
wit 1 1 her thai nij^t her death wai ; n
teihit^ ber, she could not well slay 1%
encf^ired her U> eomc and dine mih
ne\l day, aiid told her what wa< for
desiring her company «ll day artrr,
intt'oding^ to g'o from home ; whldi ibf{
mi sell to do.
And it is very olwervable, from the
of (be trial to the end, what sbitt^ And
he i^ forced to make uiie of to dnil ont diili^
titat there tuiijbl not be enough fwlhfWln
nes&e,s on the other side to be heard ; ud ik
kh endeavotirioi^ to ba^e the evidoase ignl
him ; a^ first, above twenty frivotocit Mft
linnt be asked her maid abH>iit pdifM, M
she bouj^iit to poijkOti a miscbiet^oas dc|f «iii|
baimted the house; and if he ooald ^^
meau^ confuse and put her out^ if sht N
bad irutb on her side, antfgladly wuoMl
picktd s^Hiietbing: oiii of it, if be e^tiM I
told wliat.
Also, the many impeninent mm^nk
otdls to prove hisiulenlior) to lodge it Bu^
tlnit Diiflit her deulh was, and «endiaf lar]
h^i^ tliitber, nn^I lodg-ing^ bis i\m^ ifcfl
which ]|geemi» was not ai all e.¥|ieettrd hviW
for J oi u i Da ri U ord $ wi te sa id , 1 1 1 h la Int >
sbe ht^lieved 8j»eucer Cow per did nol «
to lod|^e al her hou^e P Hut uai ^urpnae^li
be bent to her, bi^tweeu eleven aad n
o^cloek at ni^bt, tci ^et liii bed rts^^i
came before it was quite done.
And the nejtt night after, when b« w*
for by tlic cfiioDer'ji inquest to give in
where lie left her, he b^id, in the parlour ^
wefi.il. And hein^ asked, if he dnt not^
bcr bid ber maid w^rin his bal ^ Ht m
thought she had meant her own bed. ^"
very uolikLdy tbat she waald ^ tnMv
leave bini sitting there ; or tbat when l*^.
out she should sit still, and oot ligltt bus I'P
door. But if it were as he say »» that I«*>i
her in the parlour ; tor a man "f h\^ r\>\-^
and figure m the world to po awiw nt i--' "j
of nigtit, when he knew there wiiis j jjre »ji
chamber, and liis bed naa a warming, *iwl
himself out in the dark, and^ay notljtrigMi
Isody, it certainly looks very darkly.
And then his sending for bi« ht^nf 1
times to ber mother's house ihe niL'NtiJli
deatli, befor^^ he \%&a examined by »»f c
infjuest, and would have goneioul of WffI
if he could have had him^ as he <
the lord chief justice Hdl ; but «t iJ»f D
said, I sent for him, for fear the \<^ '
manor bhouUl sei^e bim.
AiiOp wbeu it was taken aoiice ofai ^*
J]
Trial ofMaryButkr.
A. D. 1(S99.
[IS50
le coomd, that he never came afler that
t her death was, to i^if e her mother any
int where he left her, or in any wise to
her aatisikction ; to thii he answered. It
It be strange for me to come and visit a
an that I never had the least knowledgre
%Dd yet he had several times lodged at her
e wlien her husband was limine. And that
t also, that he was examined by the co-
t's inquest, when they asked him, it* he
ned her (laughter to be melancholy ? He
No ; only he thought she was not so free
loourse at dinner as sometimes he had seen
for most of the disconrse then was between
nother and him. Surely he will be hard
o it to reconcile himself in this discourse,
id it is very remarkable, what great dissi-
ition he manifested at that time ; for in his
wie, he taking occasion to speak uf the
le called Quakers, be expressed so great
fi>r them, and for their principles, that if
be chaiigred his religion, he said, it should
rtheirs : Notwithstanding he derided them
inch at his trial, alwut their being by edu-
n intitled to the light within.
ThnSj in short, upon the whole matter, it
may be concluded, that the defence he had
i made for himself and his three gentlemen, and
the most material things he made use of,
whereby they got off, and were actiuitted,
were proved false out of his own mouth before
he went out of the court ; as it may \te seen
in tlie trial, where the counsellor for the king
says thus : * My lord, we insist upon it, that
' this is a different evidence from what Mr.
' Cowper gave to the coroner's inquest ; for
* then he said, he knew none she was in love
* with, nor any cause why she should do sucli
< an extravagant action as to drown herself.
* But now he would make the whole scheme of
* thin;^ turn upon a love fit.' And then he
moved the court to give leave to call several
persons of quality and good repute, who were
there present, to speak to her reputation, in
contradiction to the letters producefl^; declar-
ing, that he believed the whole town would do
the same. Then the judge said, they would
grant that ; and did not question it. Bo there
was none permitted to say any thing to that
purpose.
I The Trial of Mary Butler alias Strickland, at the Old
Bailey, for Forging a Bond of 40,000/. in the Name of Robert
Clayton:* 11 Willia3i III, a, d. I699.
October 1«, 1699.
L ofArr. BrING Mary Butler to the
[Accordingly she was brought.]
iary Butler alias Strickland, you stand in-
led l»y the name of Alary Butler alias
iekland, hite of London, widow ; for that
I codeavouring, and maliciously intending,
Aeeeive and oppress sir Robert Clayton,
ghtand alderman of London, the 1st day
December, in the 7th year of his now ma-
ty's reign, at London aforesaid, in the pa-
I of St. Mary Woolnoth, in the ward of
ighome, a certain false writing, sealed in
■ of a bond, bearing date the 14th day of
ril, 1687, in the name of the sud sir Ro-
t Chyton, for the payment of the penal
n of 40,U00/., to be made by the said sir
ktti Clayton to you Mary Butler alias
iddand, with condition there under writ-
i; eooeerning, among other things, the
jmeai of 90,000/., to be made to you Mary
fUsr alias Suickland, ailcr the death of the
id sir. Robert Clayton, by his heirs, exc-
ioiB, and administrators ; talsely, know-
fly, unlawfully, and subtilly did make,
VMerfeit and write, and cause to be made,
■rtafeited and written : And further,
it you, Blary Butler alias Strickland, af-
Por the law of Forgery, see Kast's Pleas
• Crown, c. 19»
K>JL XIU.
' terwards, viz. the 1st day of December, m
' the 7th year aforesaid, at London afore-
< said, in tlie parish and ward aforesaid, a cer-
* tain false and forged writing, sealed in form
* of a bond, in the name of tlie said sir Robert
' Clayton, for the payment of the penal sum of
' 40,000/. by the said sir Robert Clayton, t»
' you Mary Butler alias Strickland, with con-
* dition under written, concernint;, among other
* things, the payment of 20,000/., to lie made
Mo you Mary Butler alias Su-ickland, after the
* death of the said sir Robert Clayton, by his
* heirs, executors or administrators, as a true
* bond of the said sir Robert Clayton, as if
' really made by him ; falsely, subtilly, and
' deceitfully, did publish, you Mary Butler alias
* Strickland well Knowing the said writing to
< be false, forged and counterfeited, and not the
< deed of the said sir Robert Clayton, tu the
* great damage of the said sir Robert Clayton,
* to the evil example of all others in the like
* case ofTeiifliug, against the peace of our sove-
* reign lord the king, his crown and dignity.'
Cl.ofArr, How tayest tbou, Mary Butler
alias Strickland, art thou guilty of this' forgery
whereof thou stundcst indicted, or not guilty 1*
Prisoner, Not guilty.
CI. of Arr. Prisoner, hM)k to your chal-
lenges. Oyer, swear the jnry, which follow:
^Villiam Clark, William Christopher, Thomas
^Vharton, George Kimble, James Church,
John Whistler, George Ludlam, Kiohanl
4L
HI
nJAM
, ui«. iiTT that are
.,ri% .'. uMiNndken to
•i^ Tour kirdsliip,
nt
rfiut*
nr!«>ncr at the
I C^rtm, did
^ ' ' ", ^ be
••^ •Iff {aymeot of
« mku Id' the slid
.Mttto. tfter ike dfiiifcttt
■ bi^plewkd
«. jK ^ct, 1 do not
^ .«r ^sJtT, that she
. .. .ui eMDsel for the
• vm what sort of
^^» 41 ^a prisoner. It
^m pAiaJiy than
."""' This IS
I Ckyton, and
9 -^j a little alter
««A*4i«<^ or administra-
► 1,^00/. a year
of thb som.
.u 30t rest here, (a
v fpeoed to you.)
'i*t\\ with, in the
> of 40,000/.
%v.;c years Ijail a .
. .-, ifulaie duke |
• .-.r iiatl, nr pre- i
-. i;:'.l lor ;',000/., j
. t .1.!), : 1..1 U!l lUl- I
■ -. ■' t'u»priiiripal 1
. I .:!■;;• a trustor ^
. j;. :iiriil of his j
•.V. .r.ily I" sir Ko- i
wv uiul irit<.i»»^t !
0\\ ihis uccuiiiil !
..s cotirpiiJiy ami
'. nLu' jircteiulutl \n
.. -"le was sorry for
. , 1 ilu' duke ; that
^>, .1(1(1 if she should
«4tid her into a nun-
... vHinterfeit, and in
. V I'iaMon ; and he
. '. m»t\ullislandiD<y I
. 1 -Mil Uvc'lve years
.. 1 s:i,i-e tliat site
\ \ it ( 'ia\l:M) had
I in. that tlio pr" i
. t.-n, ii«» hsH tli;«u I
» ". '. C'laytnii frud; j
■ I it oiiU :u"l I \- j
.. . si fur. rif'd <r,\w >
», I whi iher ih('\
.. '. his fstili'. Tn
. .va j.uai»cr, that bhe
\^'
Trial of Mary BnOer, [m
had no claim i>r demand ijnaDttlNBM«|
account nr hatsoefer W hlk i!us wu ■ uih*
tion, the pruojier catpt to Mr. Wwivii^ ■
attorney of tliis city and brotwht Sm vot^
ing^ purporting a l>ondj wttbuflaM^BM
Clayti>ti, lubscribLvl lo it,b^UiiiMMAk
ibar witnesses, as the bond ofsirHnleitCbh
ton ; and told Mr. H'oodwanl, 'TiutMia
ppeti to her hy sir Robert i 1^3 . < ^^,
good considerations ; but it liaTing oka ■,
some uneasiness had risen afiont it in nrBAn
C :|aytop\^ tUinily \ atid (a« Ehe prcttidBl)Mi
this account he had exhibited 1 bill is i»
a{(ainst her, herdbre tbi« biotl oust be »
vered np and sir Robori litii promioii mm
her a new bond fur ^o^ooo^.t^^^^^^
muney in arrears fur interest, wcb to be tnd
to pnucipalf and put into the nev boid: li
this vvds to be done very pijviitdf,ioaiBrti
be known by any of ur Hubi^ Cdtlsl
family ; and therefore acme «f hii mfl
were to be prit j to it." Tiwrcapft ib« p«
to Mf Woodward the bond, (]e$inif Mat
naake anew bond by it,andtotumilillil^
rest that was due Inio prineipftl. Uptt^
iMr. Woodward made her a bond of tJie f«rifl p* ^ -
of 54,000/. , conditioned for parment «f W ^
after sir llobcrt Clavton^i death, andiHirdl^
the mean time. I'his bond she took Ml
with her, and likewise the lirst bond; Irttw
she dul with them since, we are not fnT^t*
And a great chai*nre she laid upon Mr. ^^it
ward, to carry it with all possible prnicvv
that no notice uiijjht be takoii by bir fenbetti
family.
Some few months :iiro llii-.:^ v as a:r.'j«
iutiiiiation sent to sir J\. i i.i\l«'n, \\\r. t\
iTfeutlewcman i:r».le!ulcd t.i li'>ea cru^ic-.-i
upon him of a L,':e;il sum «.fr,. <.:ic-\ il;jit»»<"J
l»e jiaid h'-r, ehl-er at pr.senl. ur ai icr '.-.is ufr.= :
and thr.t Mr. Wt-odwurd nnt-lu il-.r Lo:].!.,*;-
he rould «;i\v.> r.n aoc.'iutil nl it. I ;»«>n il-.i'-
Robert Clayt'-'ii S( nt to 'Ir. V, or»,:\var.!. »jJ
like a very Ijoik ^t man, told t'lc wh.dc luvi^;.
in w hatmannc. it was the p: : n,iti- cimt- i-h.a;
and how he oiiuie to mak. ilie l.'oiul ; zwi r.ii
\w WAS deMrc^l \< he ilcn; in il , sir ii jb-. rl (. -j.v
ton havin«r dc [rod this b,.!i ! sbu ih W n adtflot
of his own houve, th;;t ii jl o| hbtkmii njdri
take notice of if. Sir U.('ia>tnn ho\in:;'ilii«L»>
lice, and tindi:ij,r tVom .Mr. V\ oodii ar-l. tin- j-n-
sou»ir had taken this e^iursc t'> ca;T\ on tlr.s !<•
sijrii to char^a? hi- < ^t..to, \\r ^.-t a «iim:t
fromihe h.rd <]ii;.i' jii. titc tj I,i>i- h-.r iut:»i«
him, to ho e.\amini'd I. .••.-.v his hird<li.|,':
\\ loTe beii!«»- bronq^hl, s'^-. uji-f! her f \i!ii:
i.ailon, has conii.^.M ;1 tin- v. 'v.''-- r:uiltci. Kt
hr.virii;- ilic first in.:i/!. ai-.! wV. n- if uois ivJc
\> Ii;"l i^ Ipci.im- v\\' i;.i: 1 .Ihm- i. '»::.', we c;inD"<
p-t out of I. M-. i.cv vl.itlui v^li, j^^_r uJriuJ
the na'iir of wji- (». (;i;!y:!.n i.M!iU. IJiii vi
nill jirodiKT I ri'.'ir-K'
•juihy of liu'-jiiin- ii,»;
i.M'M of nvrntv thouviiHJ pnoii-i^ ; aiul iliiiit
liaii t!ie name asid sml ♦•: >'r ;,'. (I.ivt.wi A-
ti\ed to it; and lliat sin- .-.ti.itL'ed ;*! to l»t s
*,^ood bund, v»eli cxLculcd hy k.r Jt. Clayiyii.
\»iti. • N. < lo prove bt-r
tll>t I. nil ' foi- ilu^ jijy.
« was interest dtw upon it from sir
uid that the intereet was in the ae-
be turned into principa). We will
s to prove this, and then I hope
5 aacn punishmeot assbe dcservea.
£y. My lord, what the nature of
will be, I shall inform you. It
zpected from us to produce ihe
lat she carried away from Mr.
so that we cannot ^ive the writinff
nee ; but, if sbe insist on it, we
I prodnce the bond. We hare the
lyMr. Woodward) ofthe first bond
id from ber, that he might draw
md by it. But we can prove from
lyrees wiUi our record, that she
t the first bond that she produced
layton's : That that bond which
I, of which this is the copy, she
) sir R Clayton's deed. We shall
atkerwards prove her publishing
idictment is against her tor ibrginflf
d publishing that forged Mnd,
!> be such, and close aR with lier
on. And, my lord, there is this
e could be nothing in the bond ;
9 time she pretend^ to have this
9he was to have twelve hundred
r, she remained a prisoner all that
I herself out by swearing she was
ve pounds in all the worid. Call
)rd.
) appeared and was sworn.)
^ht. Mr. Woodward, you hear
.rge is ; pray give sn account of
ow in reference to it.
. My lord, Mrs. Butler has been
aay years. About two or three
ore or less, Mrs. Butler came to
?;ht me a bond ; she gave it me
told me another must be drawn
B I had perused the bond, I foond
d Robert Clayton, and tour wit-
I set to the bond. It was a bond
ilty, as I remember, of forty
tttds, and I think it was in the
ir to pay, I think, twelve hundred
*ar, by four quarteriy pajrments
1^ sir Robert Clayton's life, and
hm aix months afler his death,
some other things in that bond,
tpear by the co|iy, which indeed I
sr Mrs. Butler desired it might
beiug of a very great concern,
her why such a Mnd shoald be
«igbt it must be great generosity,
Hmey lent. But she told me the
id was to be delivered up to sir
isked her, why, since she had it,
:ecp it ? She said, tliat be would
tber bond. She told me it had
i my lady Clayton had some dis-
; ; and for my Udy 's satisfaction,
neery was exhibited against her,
9 was to put in her answer, and
limiuiy aoft of bond, or iniafiaty
A. D. 1699. [lieSt
or any pretence that she had upon sir Robert
Clayton.
fiierj. Wright. Sbe told yon this herself r
Woodmmrd. Yes; and when she gave ma
the bond, sbe told me it was sir Robert Chiy«
ton's hood, or to that purpose. But there be-
ing about nine or ten years arrears of interest*
SM desired me to cast up the interest that was
in arrear, and that it might be pot to the pria^
cipal in the new bond, saying, that sir Robert
would give her a bond for the whole together.
Serj. Wright. Was the wh<rfa interest prs«
tended to be in arrear P
Woodward, 1 cannot say, all the interest.
8eij. Wright. How did you compute il, from
the date of the bond, or from what abe told you P
Woodward. She said abe bad received 8om4
money, and I computed the rest rather under
than over, and so made the interest to come
to 7,000/. ^the interest pavable by the bond be*
iug 1,2001. a year). Whereupon she de^
sired I would draw a bond for it myself; and
acoordingly sbe left the first bond with me. I
took some time, and drew it; and made th«
]>enalty thereof 54,000/. conditioned for the
payment of S7,000/. And it was to be made
m the same nature as the former was, in re-
spect of the principal, and in the mean time t*
continue the payment of the interest yeariy,
by proportionable quarterly payments.
Mr. Montagu. iVhat disorarse bad yo«
with her about it?
Woodward. I did draw a bond, and did take
notice. That whereas sir R. Clayton had given
her this bond of 40,000/. and at his request she
had delivered it up to him ; and upon an ac-
count staled, there did remain 7,000/. in ar-
rears for interest, which in all amounted to
27,000/. or thereabouts ; when I gave it her,
1 said, it was a very great sum, it ooocems yon
to have witnesses of credit, for nobody will
believe sir Robert Clayton did give you this
bond, especially after his death, unless it be
very well attested. I told her, if she pleased^
I would go and be a witness tor b« to see it
executed. So she went away. And when she
came to mc again, she told me^ that sir Robert
knew me very well, but did not think fit to
have me for a wimeas. I answered, I do not
care ; but it being a very great sum, take care
it be well execnted. 1 gave lier both the
bonds, and fromUiat time heard no more of it
till about two months since.
Mr. Northey. Was tliera any bofly came to
discourse with you of making a new bond, be«
sides herself?
Woodward. Not that I know of, I do not re*
member any. It was an extraordinary sum, I
did take a copy of the bond.
Mr. Nor they. Have you it here P
Woodward. Yea, I have it here.
Mr. Northt*f. He swears he took a copy of
it, and delivered it to the prisoner again. We
desire it mav be read.
Mr. MtUfet. Is it a true copy ?
Woodward, I cannot say I examined it.
Mr. JNorrA#y. Did yoa write it from the boodf
I
1SK6] n WILLIAM IIL
Woodward. I did.
Mr, Northty. Do yoii beliere it ia a tnj© oopv ?
WW«?/jr^. I WUeveit b, TUe reftsou wliy
1 djii not examine h» waa betause it wm to be a
BGCTiH,
Mr. Malfct, Do you Juuk i]|K>ci joarieir ta
U^inlkliiMei'
8#-rj. ^V>%A^ Htd ywi mny ilireclioo from
tba (iriJwner ta t»k** a ci»|t_v ?
. iToor/nriJrf/, I Cftrtnot uay tlmt,
L* C. i. i/o/i. Wijy ifid you Write it out ;
iW yuurr dl recti nii to ilmw the new bond ?
mmd&'urd.. I did tvrite it out, because it is a
Epecjiit conditioii, more than is Ufiual ia iM>m$j$ :
lor it iM eipr«s«edt that tUerc i^tiould be no pro-
ieoutifin atTaiast her by sir Robeii Clay ton , or
h'm cx^^'utorsj tither »t bw or iu «C|iiityj tor ibe
110,000 ^ or th@ mteresl, or to do any act to ob-
■miiH hc*r in rtjceivrng^ the sami**
L. €. J, Holt. Wheu did yoo tike % copy
of it?
IFixtifs^ari/^ At the same tlmst itid before I
}«tufned iu
L. C. J* HqIi, Did you make the new bond
by tbU ^'opy, or by the fivrtiier \vmtl T
Wtiotiwurd. Very Ukfly I mij^bt mo I>otli.
L. ('. J, Ho/f. bid you keep iht^io botfi ?
^ Ifboe/it^dir^. I did ke&jj iheni both bv lue till
1 dahver^^ the nei* liood.
8o*j. HVi^/i;. Is the copy your own bfuid*
wrttiiijf ?' — Wttodifiard, Yes,
Mv. Mimlugu, VVbut tltd yoti take it frotnF
Wmidicard. Ffom ibe original.
Mr. WrigKii Aud do you take that to be a
true copy ?
WoQdmQrd. I belief e U ii a true copy.
Mr. Hiiil. Did you read it orer at tbut time ?
I Woodti^ardM I did read it oFCr.
, L, C. J. Ho^i. Did you write it?
^ Woo^Ei^drtJ. I did writt: it,
Mr. Mullai. Aud did you examiue it afVer-
ward ?
Woodfifard, No^ I did not examioc it ; it wbs
not to be taken notice of.
Mr- iiaii. Cat! you say yoa refld it oirefully
over at ttiat time ?
i^lr. CuiH* It may not be tlie rery same
bond, if be did not t^tatnitie it by the original,
aig'MeiJ by sir ilobert C by too.
Mr. Norihetf. They may shew the boniL
Mr. MatirJ. Did the prisoner bring the bortd
to you, of which tliia is the Gopy, and teii you,
this was. her bond ?
ftlr> iWiAcy, We will prove it by ber own
oanfcs&iun.
Mr. Miiitet. f f tt be not the same bond^ she
cannot be coovieted.
Mr. Nijrthey, ^o doubt of it«
Scrj, Wrtghi, Produce the copy; and, if
your Inrdship please, it may be read.
L. C* J. HoU. Lpt ii lie read.
" Noverint Univensi per pre^^ntes me Ro-
bertunt Clayton, Mihtetu ti Deeurionem, Aag-
lice Kt. (ft Alderman de i^mdtia, it^neri et lir-
miter nbli|fnri Mary Bwder uiias Strickland, de
^uth-iitr4?et in Parocbta de Eilmootoii, iu Co-
mitata MiddlflK^, ridue, duadragiEta ndUe
TnalofMartf ihaUr,
Ubns bone et legalb tmmet' iii|JI«, m\mi'
eidetn Mary Butlef aUai ^irickluid, ut m
certo Attomat' Execoifit^ tel
BUis, ad f|nai)i quidem soJutinnem Woe «l ||»
liter facieudam oblign me, htf m!^ "
et Administratores meos, l&rmilo D^rfttfli
^ij^illat' dat' decimo quano Die im^ im
Befoul Domini nuistn Jacobi SecnadkUvifQi
tia Aitg-lie, Sfc. li«^s, ienM», Aaii«<^^ Ptatf
" The condtti0fi of thia obUgatko ii m|^
thai if the alwve boundf » »if Mflbtn Or^^
or his aligns do, and shiilt wdl lading
or cause lo be paid unto tliqiiboti
Butler alias Htnckbod, b«r csavem^
tratori, or aaugn«, or any of than, itiri^
every year, during the ttantk dliiioikiinl
the iul) and just auui of 1,^00/. of hafd
uey of Eoglaud, by four ei|uil i^uiriMrljf
menlJ^ beit^ thejuKt and tegal iu«iitti,ti
due of and for ikte priiiciptl«iW«f
hereiuafier-meiitiouedf id mmtttmt i&d
following ^ that ii tv aay, lAuoL on t)ie 1
July next casntnk' ibedait^of th^-st
3001. on the lith of Octijber next cominj;
on thi* I4ib of J.ipuary, whidi tftliili ^»
yrar ot our Lord 1688^ and 3iMJ/. wtb»'
oi' April (bllowiu^ ; acid so on ever; 1^
14 th day ot the laid toootba in evi
neati and coniequetitly ct^cuiag i
the like sum of 5Q0L durijii^ the tinit tiil
of the natural lite of the said m HiAcflC
ton I and &L#o» if the heirs, execoioc^, td
miuktratorsof the said sir Robert C1s)Im
and iihall^ on or before tlie end and *^^ jt
of fix mouths nejct after the death oriltctfM
hiiu the said sir ftobert Clayton, miinif _-
and truly pay, or cause to be paid, WBm
said Mary Butler alias ^trkklatnt, \itf
tora, administrators, or assigns, ihc ivlim
just sum ol' UQ^OOiH. of Jaw iul nioMy of lifr
laud, above expre^aied; but al^ all «i)di
rest thereof^ alter the r4ie afures^ud^ u ^i"
in arr^ar and unpaid at the d«^th d tbcii^
said sir liobert Clayton, and aM tU iS^^*
iihall EfTOw due to be jiaid for ihefaiBeri^*
lou^ time of tlie said six tnontht m tli<^ 9dt^^
of 20^000^, aha 11 be ut^^stied and unpai'i ik
tlie death or decease of the said ^^Lr Iwd
Cla\lQOi without et^fveo, fr4ud, or d^cciu f^
shall not conuuenee any &uii* eitlm ii*l***'
e*iuity, aifftinst the said Mary Hail<f *^j
^itrtcklaud, her heirv, executors, or sdiottii^
tors^ ibr, eoncerniugr <*r in reapet^t^tf il*i
20,000/. and interest, or any part tlKrwf, '
shall not do any act or thing to ohktxuii* H
or hinder her^ them, or any of IbtWt 'Tailt^'
ceiving, havings or enjoying the i&mti
this obligation to be void, and etfimc i'
else to remain in tutl ibrce. Roai^Kt C'^
Sealed aod dehrered iu lin |o > i^ 'jf|
J. PEWNr?fcTOM, J'HLs (iri-HS^
Serj. llVig^i. Did the priAoiier i
the bond, ot which this k a cofjj^,
bond ^-^Wi^m^dn Vet| iny krd.
' J^fo^ng ^ Bond.
il. I ask 3roo this, Had you a
ler to keep this matter secret ?
Yes ; and that I would write
my own hand.
i^. She giving^ you this charge,
matter to be known then ?
Mr. Nicholas Baker came to me
ert Clayton, and asked me, if I
f the prisoner, and particularly
and whether I did not make one
as not in my memory at first, till
rse occasioned me to remember it ;
I, that I did do some business for
me sir Robert Clayton had some
ivcn him, that there was such a
y me : then I told him, I did re-
was such a bond brought to me,
1 made a bond for Mrs. Butler,
I a copy of the first bond, which I
and also of the second bond, m
ft out a material word in the obliga-
fain to write it over again, and had
ght by me till about a month
ne, when meeting with it among
;brew it into the tire in my doslet;
Jid remain by me.
You say this copy is all your own
? — Woodward. Yes, it is.
Was it sealed or cancelled ?
No ; it was sealed, I am very
Are you positiye the seal was on
^---Woodward, Yes, Sir.
■. Did she tell you that bond was
She told me, she was to deliver
to sir Robert Clayton ; and that
e her another instead of it.
t. Was the bond then delivered
I cannot say she did.
Did you never hear any bill in
9 what end was this bond delivered
what reason ?
, I asked her why the bond was
sd up, and she told me, there was
less in the family, and my lady
sot the air of it ; and theremre, to
here was a bill preferred against
eery, and she was to put m her
1 that be would give her another
it was to be deUvered up.
tjf. We have other witnesses to
•rging of it. Call Mr. Baker,
ed and was sworn.)
ht. Mr. Baker, were you present
ioner Mrs. Butler was before my
stice concerning this bond ? Look
was present at my lord chief-
iml)er when the prisoner was
re his lordship ; and she did there
, that the bond, of which she was
bad onlered to be made.
kt. Was that the bond in question ?
'es, she did confess she caused
ft jtM'i name to be lel to it, and
A.D. 169S. [1S58
the witnesses names ; and that it was done by
one Mr. Lewkar, a scrivener in Bisbopsgate-
street.
Serj. ViTright. She said so?
Baker. Yes, Sir.
Mr. HalL Did she confess it ? Where was
it?
Baker, At my lord chief-justice^s cliam-
her; she confessed it was her own act;
she caused it to be made, and directed the
scrivener to set sir Robert CUyton's name, and
the witnesses names to it.
'Ult.Malkt. Was there not at that time a dis-
course of a bond that she bad on the late duke
of Buckingham ?
Baker. I cannot be positive in that;
but this was the fact she was charged with ;
and she did confess that she caused it to be
done, and that the persons as whnesses were
innocent of it, and that she did direct Mr- Lew*
kar to set sir Robert Clayton's name to it.
Mr. Hall. How do you know this is the
very same bond ?
Baker. Mr. Woodward shewed me this
very bond when I went to him froai sir Robert
Clayton, to know whether he was acquainted
with the prisoner; who, after some discourse
with him relating to this bond, very frankly and
ingenuously told me the whole matter oi lact,
as he has ((one here.
Mr. Mallet. But we ask you about hereon-
fession ; did you shew her that copy ? Did
she confess that ?
L. C. J. Holt. What was the discourse of at
that time ?
Baker. It was about the bond of 40,000/.
with which she was charged before your lord-
ship to have counterfeited.
Mr. Northey. Did he give an account then
of this bond?
Baker. Yes; Mr. Woodward produced
this copy before my lord chief -justice, and she
owned she had ordered Mr. Lewkar to make it,
and to put sir Robert Clayton's name to it.
Serj. Wright. Now, my lord, we wtll shew
you, thai she is going^ on still, and that very
lately she has owned it, and that she is going
about to make the bond of 50,000/. a very good
bond.
Mr. Mallet. When it is in question, you
may then invalidate it.
Serj. Wright. Mr. Woodward has told you
he did make the bond of 54,000(. but, I thmk,
we have no need of it.
Mr. Hall. They have failed in the indict-
ment, so that it cannot be bupported by this
bond ; it should be laid especially, according to
the condition of the bond to be paid ; for it is a
bond of 40,000/., to be paid by his heirs after
his death 20,000/. Now the bond, whereof
they produce a copy, is of other things.
Mr. Northey. It* is for the same.
Mr. Hall. It is a different thing.
L.C.J. Holt. Not at all.
Mr. Mallet. It is laid in the indictment, to be
paid by sir R. Clayton : in the bond it is said.
It is not to be paid till after hiadetth.
ISbff] 11 WILLIAM in.
Seij. Wright, It ift laid in the indictment,
thai the bond was of the penalty of 40,000/.
to be paid by sir R. Clayton, with condition
thereto under- written, concerning, amon^ other
things, the payment of 20,000/. to the prisoner,
after the death of sir Robert Clayton, by bis
cxt'cutors.
L. C. J. HolL Let your exce|itions proceed
from the indictment ; it is to be paid after the
deat^of sir Robert by his executors.
• Serj. Wright. Have you any more to say
for vourseWeii ?
Mr. HalL We have a great many witnesses
liere to prove her reputation. It is a strange
thing any one should go to foi^e a bond on
such an eminent pei-son.
L. C. J. Holt, It is strange indeed ; but the
question is, Whether it be true ?
Mr. Hall. Ucr confession is proved by Mr.
Baker ; but we have many witnesses as to her
reputation.
Mr. Mallet, This bond is not in the indict-
ment. The bond of 40,000/. is several years
Bincc. Now there are two bonds. Now that
of 54,000/. is not in this indictment, and this of
40,000/. is several years since that it was
shewn to him. It is strange he should be so
▼erv exact, and yet did not examine it. And
probably he might mistake iu the copy, and it
may not be the very bond in the iudictment.
Now, as to Mr. Baker ; it is true, we have a
Loud of 5,000/. from tho duke of Buckiiigliam,
and we are suing sir R. Clayton for this mo-
ney, and hope to Lave it, now tlWvv so many
years. And sir 1{. Ciiivtuii did prdi^r a hill in
CMiaiicery aiyainst ii*, and wo in aiis^^rr did
disclaim having :.t)v such hoiitl. \\\\\ now,
when we are like to hn\e a <le<-ree ior this sum
against the trustee of the duke of liuekini;-
hanrs estate, he cocDes and \\oiild lake oil' our
credit in this matter. \\ e did, in the \ear
1GP5, diselann any such hund.
Mr. Nurthey. Then you flo admit that she
owned ihc hond.
[Then her uilnesscs wore called.]
Mr. Mulld. !Mr. (ilo>cr, «lo you know Mi"S.
But Icr :* — (/ toi'ir . V es.
Mr. Mallet, (Jive an account of what you
khftw as to her repntution.
OltYver. I have known her i;> or 16 years.
,\\\ that 1 know of her is fair and clear.
li. C. J. Holt. Where d(» >ou live ?
Ci lover. In Ued- lion- street.
L. C. J. Hull. \\ hal |)rtifc.ssii»!i arc you of?
Gliwer. I hL'loni>'ed to 1 jncoln^s-iiin.
1 1. C J. Holt. A •gentleman of Lincoln V inn.
Gloicr. I was hruui^ht up at the university,
hut have not resided tin re lately.
L. C. J. Holt. II ow du yon live ? Are you
a house- keeper ?
67«>7't'r. 1 live privately at present.
Is. i'. J. Holt. Who knows you?
Olmrr. 1 cannot tell who knows me here.
I hcUevo Mr. Northev does.
Mr. Nortluy. I Jo not intend to give any
character of you, I do not use to give charac-
ters of my clients.
Trial of Mttrg Buikr,
[\m
L. C. J. HoU, How Umg haw joa tivcdio
Red-lion-street?
Glaoer, Ten or eleren yean.
Mr. MalUt, How did she lire ?
Glover, I knew her live in Deroulm*
square very reputably ; I always thought to.
Serj. Wright. Had she any estate of kcr
ownf
Glover. I cannot say so oartainlj; it wm
thought so. 8he paid every body very paB^
tually.
Mr. HalL Acquaint my lord how lon^ j«
have known her, and wh^her yoa tfaiok db
would be guilty of such a forgery ?
Glover, I have known her 14 or 15 yon
I cannot belie^-e she would.
Mr. Montagu, Have joa heard the cfi*
deuce f — Glover, Yes.
Mr. Montagu, What do yoii think rf il
then? — Glover, I know not what to think.
Mr. Montagu. Do you think she wooMew^
fess herself guilty of a forgery, if she wcresttf
Glover, I cannot tell what to aav to that I
sufipose nobody would confess, il'they wweiil
guilty.
Serj. Wright. Do you know one HcUnr J
Glover. I know HebdoB.
Serj. Wright. He is a witneu to tbe bni
Was he sir John Hebdon*s son P
Glover. I can ^ve no account of that; hi
he has had a very lionourable character.
[Mrs. l^ujR called, and appeaicil.]
Mr. Hall. Mrs. Rodnm, do yoa know Sfli
Butler?— Kck/i/w. Yes.
Mr. ///.//. ll«»w long have ynu kooirn hfff
Txodutn. Five or six years. 3
Mr. Hall. H hat do' you know ofherchfr
racter ?
Uodwn. I am the widow of one of tbeolU
killed one another by the Temple. I wfW
knew of any liond, nor never beard hrrctaiati
any such b'liid. She lived in good repataita
She was in my house when my husbnd**
killed. She hved in my house abouia)fir', I
never hcani she made any such prvtftsoa
She lived h<niestly and decently. Sh« •••
inc upwards of 300/.
L. C. J. Holt. For what ? How caiaeibr*
owe you 300/. ?
Jivdum. I kept a shop in the Exelianef.i"
my liusbaud was a broker. She owed it *
partly for goods out of my shop, ami pirtlf *»
goods out of Scotland. lie was kilWifcj*
half a year asro, and I have kq>t iheiikof tfi^
Al»out three or four months ago sbe kfl ■*
and I never heard of any bond.
Seij. Wright. Did you never hear of *■ i
in Chancer v against her? — RpJym. No.*- |
Mr. Mulltt. Did yon heur of any !»«'•?
that was due to her from the duke ot BncMT
ham ? ^
Rodum. I was told she was suing sir B**
Clayton for money that was to Iki |«id hif •
the'diike of liucknighanrn actwmt, ■■^^i
the iTcdit of ihai I trusted her. [ShawcslW
Mr. Hull. How long have yoa knows ■■
Butler ?— 6A(ia. About sixteeayevti
JbrfifffngaBand.
Do you think she would forge a
eed T cannot ^re an acconntofthnt.
Hovr has she behaved herself?
ever knew her guilty of any rude-
jht. Pot up more witnesses if you
We have done.
^idt. Mrs. Butler, will you say
r yourself?
(«r. 1 am altogether innocent in the
ever wronged sir Robert Clayton,
f else, in my life.
ioU, Gentlemen of the jury, this
, alias Stricklaml, stands indicted
a bond in the name of sir Robert
the })enalty of 40,000/. the condi-
layment of S0)000/. among other
in six months after the death of sir
And also, that she did publish
the true bond of sir R. Clayton.
!ard what evidence has been given,
* guilty of this forgery, and the
fit.
some time since, as is proved to
r. Woodward, this gentlewoman
with this bond of 40>000/. And
this account, as she said : To wit,
on having given her this bond, it
r, and was come to the lady Clay-
irbich occasioned some difference
I. Clayton and his lady. She said,
id, by direction from sir Robert,
eliveied up to him to be canoell-
it sir R. Clayton had engaged to
I new bond in the penalty of
the payment of 96,000/. (there
time supposed an arrear of interest
payable after sir Robert's death,
in tlie mean time. She delivered
Mr. Woodward. He takes a copy
is produced and read. And so, ac«
ler direction, Mr. Woodward does
r bond, with the penalty of 54.000/.
1 told Mr. Woodward sir Robert
his bond upon the delivery up of
40,000/. Mr. Woodward having
bat it was an extraordinary sum for
0 engage himself in, and he be-
' considerable man, he advised
this new bond well attested;
ore to get witnesses of unques-
dit to 'see it executed. And
e offered himself to ^ with her
, to be a witness to this new bond.
, sir Robert is not willing that this
own ; yoo are not a proper person
ss to it ; therefore, says she, I will
ler witnesses to attest it. Where-
es her this first bond of 40,000/.
rougbt to him for the payment of
gave her also the draught of the
He sa^'s, this bond that she brought
attested by four witnesses. Sir
m» upon her answer in Chancery^
ig any thing of this, slie having
A. D. 1699. [ISeS
disclaimed in Chancery the having of any ; some
time after he had heard a report, as if she was
setting op of a new bond, and that Mr. Wood-
ward could give an account of it. Wherefore
he sends BIr. Baker to Mr. Woodward, who
gave him the same account that be has done
here. Theu sir Robert makes a complaint,
and has her brought before me ; and there was
Mr. Woodward with this copy. And this was
objected to her, as if she had forged this bond.
And it seems, when she was there under exa*
mination, and is proved to you by Mr. Baker,
she did plainly confess, that she had forged this
bond of 40,000/. and that she had procured
one Lewkar to do it for her, who set sir Ro-
bert's name to it ; and said, that the witnesses^
whose names were set to it, were innocent, and
knew nothing of the matter.
Now what is said for her on the other
side? They bring some persons for her, that
say they have known her. One, that says hit
belonged to Lincoln's- inn, and had heen ac-
quainted with her fourteen or fifteen years^
and did look upon her as a civil woman ; and
for his part, he does not believe she would \m
guilty of such a forgery. Another, who is a
woman, says she has Known her some time»
and she says, she has trusted her much, and
did never bear her say an^ thing of this bond,
but she behaved herself civilly, and she took
her to be a very sober person. Another wit*
ness says, she looked on her to be a very honest
person. This is the sum of the evidence. '
There is a very strong evidence to induce yoa
to believe that she did forge the bond. Such a-
bond she had, that is plain. She does give no
account what is become of it ; and she doea
not shew any manner of pretence of having so
much money from sir R. Clayton due to £er|;
she does not make it appear, why sir Robert
should give her a bona upon any acoonnt.
Now, for any to say that they knew her, and
tliey do not believe she would forge a bond,
that is no evidence ; nobody ought to bdievei
ill of Mrs. Butler, or any one else, unlcH it bo
made to appear. But the question, is not,
what they do believe ; but whether the matter
be proved to jou to your satisfaetkin that riM
has forged this bond } And if yoo are satisfiei
that she did forge it, you ouglit to find her
guilty ; and if you do not believe the evidence
to be satisfiustory, you ought to acquit her.
[Then the Jury withdrew, and being return-
ed, gave their veraict as follows :]
C/. ofArr, Are you agreed of your verdictf
/ttry. Yes.
C/. ofArr. Who shall say for you ?
Jury, Foreman.
C/. ofArr, Bring Mary Butler to the bar.
How sa^ ye? is the prisoner at the bar guilty
of the forgery whereof she stands indicted, or
not guilty? — 'Foreman. Guilty.
The Judgment which the court pronounced
against her was, That she should pay a fine of
500/. to the king, and cootlnue in prison till sht
paid it.
IS63]
7 WILLIAM lit. Procee£ngs against the Duke of Leeds, [ISS(
407. Proceedings in Parliament against Thomas Duke of Lekds,
on an Impeachment of High Crimes and Misdemeanors:
7WjlliamIIL a.d. 1695—1701.*
April 27, 1695.
1 HE House of Commons havingf read a Re-
port from a Joint Committee of both Houses
relating to the distribution of Money bv the
East India Company, the following Debate
arose :f
[£] stood up and said, Mr. Speaker, 1 con-
ceive there is a necessity to search this matter
to the bottom. The House has a thread in their
hands, they ought to provide laws tor the future
to prevent the members of this House taking
money. All imaginable endeavours have been
used to stifle all discoveries. 10,000/. has been
pretended to be given to the king. 50,000/.
offered to buy an act of parliament, or gain
their charter. The facts prove themselves, and
Mr. Bates appears an unfortunate person, whom
the care of his friend, the duke of Leeds, and
the sense of his oath, have caused to make such
contradictions. 1 move that the House would
put the inatier in such a method as becomes
their justice, and as the shortness of their time
uill allow.
[D] Mr. Si>eaker, I do fully agree with the
worthy person near me, that there never were
greater and more t»eneral instances of corrup-
tion, and nect?ssity ofspecdy rcmwly. Tliat it
is very tit this House should het the world see
that they ;ire in euruost. I ask Irave to put
you in iniiul, what praclicc and arts havr* bron
used to stitle and stop your discovery, so tluit
what you liave is, as it were, by the utmost
force and constniiut. Von cannot wonder at
it, wlioii you now find si» great a man at the
bottom ; hut tliere is no person in a post so lii:>h
that lliis IloU5<* Cisnnot ren':h, no man's prjic-
ticc or art so docp that ih's n)r.se cannot <iis-
covfr. HiTi' have hern mII iina^-jnary endea-
vours used toohstruci this Hntpiirr. First, his
majesty's naim^ was ina<lc; nsi', o!" at tiio coui-
mittees, witii liopcs pi'r)ia|KS tiiat that misfht
* Sir Thomas Osborne, crr-ated l»ar«»n of
Kiveton and vist'ounl Litiuir-r, l»y uin^ C?iiarl»'s
V, Anjjfust l.>, 1673, and earl oK J)anhy. June
f^7, 1674, marquis of (.'armartlien by kini^- \\ il-
liam, April '20, J6»9, anil dukr of lirnls, April
JO, 1001. This is tilt' tliini lim<^ thai Artichs
of Impcarhnu'ut had been c\hihit»Nl in tlj«'
House of fiords, airjunst him. T\u:. (irsl was in
167.'>, upon which ih«.* House resolved. " Tiiat
there was not sutlirient mailer coi.iained in
them to impeach the Lonl Treasurer;'' the
second was in i67R, see >ol. 11. p. .M)9.
t I'Vom " A ('ollection of the Debates and
Proceed in t^s in Parliament, in 1(>'.U and 160 j,
upon the Inquiry into the late Briberies and
Corrupt Practices."
stop an V farther enquiry ; and if it were anil
use of there, you may reasonably eipecl it wm
made use of elsewhere : but that appeucd to
be so far from being a matter of reflectioB «
the king, that sir Joaiah Child often oonphiMl
of it as a rudeness to his majesty, that whi
other kings had yearly as a present, tbejr M
not offereii to his majesty in three ytm: i
was indeed, if not a matter of right, a matlertf
custom. — ^Then a nolile lord, who mty k
named for his honour upon this oocaiioo, Ik
earl of Portland, he, whsn the mat lumtf
.50,000/. was pressed upon him, did abiolittelf
refuse it, and told them he would ftr era ■
their enemy and opposer if they oierad m
such thing to him. I having thus roeaiioMi
the innocent, must say somewhat of tbeeoikf.
A stop having been put, the duke of Leeds oiil
be applied to ; certainly there never waii
more notorious bribery, and that in a pcna
whom we might have expected to hare km
free from such a crime, whether if you lOfHl
the greatness of his place, or of his 'former ib-
ligation. It is fit to speak plainly on tucb oe-
casions, the House ought to endeavour to l^
move such a person from the king's coiMi
and presence. What security can tbe oM
have, when we are bou^rht and st)ld to one a*
other? We have seen our designs detcatti •
our attempts beti-ayed, and what woaderi^it*
Can any man think it more strant^e tbat Mff
counsels should be sold abr(»ad, than thatdiv*
ters sliould be sold at home ? Certainly a nut
may reasonably believe, that he who wili^ll
the sulijeots will sell the. kingdom if hecanbm
a sufficient hriho. What prince can Ik? wfc*
such counsels which are yiven for private i^*
vantajre; several proposals for remedy majl*
hereollered. One, that this house sbouldai*
dress his Majesty to remove the duke ot'Ufdi;
hui, with siibHiission, an addiess is toomeNi
loo low a thing for the Hou«k<3 to do iitW -
time, and upon buch an occasion : ! thcrdif .
move we may lodge an impeachnieot. ** Tb*
Thomas duke of i^eds, l^inl I'rtNiilrti! «<
his majesty's council, he impeached by tto
House.'" V>r thus, »' That Thomas rfiikerf
Leeds be im)>eaclied by this Himse of higfc
crinu.s and misdemeanors ; and particularlf «
<^.!orruption in taking a bribe of .^,000 :jui»*
to obtain a charter and regulation tor tbe £a^
India Company."
[ K I says, I wonder the gentleman w hosPOW ;
last shiMiid say that which 1 hope be clido*
lid have sold ^
bidieve, Tiiat that I(mhI
couuscIn t«» France.
should have sold i
L /)] rose ay^aiu and said, It is with toofi
easuK'ss I stand up, but that gentk-man Af
mu to it, for 1 du Dot take pleasure w n^** 1
for High Crimes and Misdemeanors.
A. I). 1695.
[1268
I was far from sayio^ any such
t ar^rued only from possibility ; that it
•asouable to believe one as the other,
m honour andjustice were not the rule
actions, there^ was nothing incredible
lit be for their ad vantag^e.
fconds and agrees in the motion for an
neat.
lys, That God alone who can produce
: of darkness, can fully discover the
;tices in this affair. That such actings
ire a blemish, if not a scandal to the
>n itself; 1 agree in the motion for an
nent.
emanded,. by what law it is a crime to
ley at courtP
uswered, if there be not a law, it is
•e should be a law to prevent it.
ys, The law of God is against him,
ce by him. He took an oath as a
unsellor. Justice is not to be sold by
Qon law. But there are parliaments
1 such crimes, and it is hoped there
ill.
ays, it seems doubtful whether there
* in this Report for an impeachment ;
before the House goes to an impeach-
ty ought to put the question upon the
ind see whether it be a crime,
bjects, there is no law, so no trans-
ed, « That there does appear to this
ipon the Report from the Committee
louses appomted to examine the per-
itioned in the Report of sir Thomas
ccount, Tl^at there is sufficient matter
:h Thomas duke of Leeds, president of
ity*s most honourable privy-council, of
nes and misdemeanors."
ed, <« That Thomas duke of Leeds,
npeached of high crimes and misde-
id, « That Mr. Comptroller do go up
yrds, and, at their bar, in the name of
le of Commons, and all the Commons
od, impeach Thomas duke of Leeds of
mes and Misdemeanors ; and acquaint
hat this House will in due time exhi-
;ular articles against him, and make
same."
KE*s Speech in the' House of Lords.
I reading of the Report from the Lords'
ee, his grace expressed himself in this
vis.
t as he had formerly protested himself
i in this matter; so he still denied,
I fiuth and honour, that he was guilty
inch corruptions as were suggested
iiDy and that if the whole truth were
1, it would tend to his honour and ad-
Tbat he would be very free in tell -
kmlsbips now before hand, all that
a which lie was any way a concerned.
wipdn deGtercdi that Mr. Bates intro-
XIU.
duced sir Basil Firebrace to him, and that he
had had conferences witli sir Basil upon the
subject of the Ea^t- India Company, which
Firebrace was cooccrneil for. That some time
after, Mr. Bates came and informed him that
he was to have a sum of money of sir Basil ;
and desired his lordship to lend him one of his
servants, Mr. Bates keeping but a footman, to
receive the money, and so he lent him M. Ro-
bert. That his lordship knew nothing of tlie
sum ; but after nards Mr. Bates came to him»
and told him, he had received 5,000 guineas,
which he offered to him, telling his lordsliip that
he had been very obliging and kind to him ;
and that, in ackiiovi ledgmcnt of the many fa-
vours he had receive<l from his lordship's hands,
he humbly desired him to accept of them :
which he refusing, Mr. Bates pressed him ear-
nestly to take one half or a quarter ; which he
still refused, declaring he would not touch a
penny of them ; and told him, since he had
taken them, he thought there was no need of
returning them, they were his own, and wished
him good luck with them, as 1 remember, said
his lordship, I did once to Mr. Harry Saville,
for whom I had a great respect ; which reminds
me of a story I must neeos tell your lordships
upon this occasion. He then related the story:
That when he was treasurer, the Excise being
to be farmed, for which many put in, the bid-
ders for it, who were to ^ve m their proposals
sealed up, havmg applied to Mr. Seville tor his
interest at court, he came to his lordsliip and
desired ,that he would tell the gentlemen that
put in, who were several, that Sir. Seville had
sitoke for them : what, said I, rproceede«l the
duke) would you have me tell all of them so,
when but one is to have it ? No matter for that,
said Mr. Seville, for whoever has it will think
1 have done him this service ; and I am sure of
a ffood present, without more ado : so, my lords,
woen ttie men came, I told them one after ano-
ther. Sir, you are very much obliged to Mr.
Seville ; Sir, Mr. Seville has been very much
your friend. A little after, when the thing was
settled, Mr. Seville came and thanked me for
what 1 had done : and told me he had got his
present that he had expected ; which I told him
I was glad of, and wished him good luck with
it, as I now did to Mr. Bates. And thus I
was then a shadow to Mr. Seville, as f was now
to Mr. Bates."
The Duke's Speech in the House of Com-
mons.
The Duke had proceeded thus far in his
Speech when he received private intimation,
that the Commons were proceeding to impeach
him : upon which he broke off fionicwiiat
abruptly ; and immediately quitting the House
of Peers, presented himself at the door of tlie
other House ; and by the means of one of the
members, caused the House to be inforincHl,
that he desired to be heard ; witicli being coui-
plied with, he was admittrd, uith the usual
compUments of a chair, and leavr to be cover-
ed ; after accepting of which, he rose^ and put-
4M
7 WILLIAM lU. Froceedmgs ag&tnxt the Duke \
tiugofl^his bat, expressed himself to the fgl-
lowintjf effect :
•* Mr, Speaker, and f^^ntleiiictiof the Hmise,
Tn the first j<1ace, I thiitik you heartily for this
favaur of hearing me. I had atteDded sooner,
if I had had the least intimation what the
Hou^e was upon. 1 wish the dispatch thereof
had not been bo quick. The oec&sioa of oiy
cximiin^ is from the two Votes, upon the Report
from the Committee of both Houses ; I did aU
I cottld to be intbrmed of tlie pavticulan^, but
could not, nor have 1 any uoiea. I was earnest
therein, 6nding^ myself concerned, and hearing
of a report, a mon&trotis long' rt'port, to the
end that I mi|^ht not be under the displeasure
of either or both Houses ; it is a bdd trutli,
but it is a truth . tliis House had not been sit-
ting bnt for me. 1 wt« formerly pursued by
this HoiiNe in two points, for beings for the
Frrirth interest and for popery ; 1 had then, if
I migiuhave been heard, justified myself, as I
hope I have abce done, and shall by all the
actions of ray life* One Fii'tbracc was in-
trodttc^d to nie by the means of l^Ir. Bates,
wbotn 1 have toniv known, and if f am not
in uch deceived in him, 1 cannot believe that
^ntleman nould have transacted such a mat-
ter if pnt upon it. The evidence is but hear-
say^ and 1 hope you uill not condemn on hear-
•ay* I would not take up your time by enter-
ing into particLibi'S \ but there is a money - part,
as well as a treaty -part ; and as to the money*
part, much of it is false ; what is trne, 1 have
made no secret* I can, and do ^^y, that
n^ilher directly nor indirectly, upon my faith
and hoDOur^ have I ever touched one penny of
the money, t observe a great deal of pains
baa been taken to hook and draw men in this
matter by a side-wind, and Firebrace thinks his
tncrtt witL deserve 10,000 and 30,000/. This
5,000 guineas was DO part of the 40^0001. The
committee culled in and ejcamined several wit-
nesses \ but Firebrace, aflei- his first bearings,
ii«flire<l to be called in again himself, contrary
to all rules, which slices at least that he is a
very wilUnjj tvitness. I have a thread which I
hope to spm Goer, and make it appear that
this was a desiirn laid against me, long befora
the naming- of this coiumiitee; that warnini^
was g^iven me some time since, ihat this matter
woitld be proved ag;ainst me, and that Firebrace
bad been told, he should be excused if lie would
charge ihe diikt-: I ask no tavour but your
favourable justice, ft will be a most unfortu-
nate tliing in pmnt of lime, to be under the
disjdeosurc of thii House, or of ihe nation. 1
pray that no severe sense be put on what will
mar u candid oik-, taidthatif it may be, tl)e
House would r^-eonsider what is done, or at
ieu^t prtM-rve me from cruelty ; and not trt
me lie on the tack and be blastcil, until ttie
parliament bhallslt 0|iain, If you will pro-
eeed, I hope it wiU be speedily , ibr 1 had rather
want council, waul time, want any thing, than mons tliAt »1u v h
be brOQffbt to m \
have at least jour gpoedy ji
Tbii Speech beings eniM*
withdrawn^ Mr. CosnfiAftilter, t
members, went up to llie HoicM «f
the Impeachment ; aiMl thm tam
were joined with the Lords,
prepare the Article
dent.
UtbaU i
The ComrooDB taking' the iN
into consideratioOi a wortliv roc _.
[^D] said, By this nohfe jordl
pomt is now, whether the V
comm ittce of bot h H ous '
Impeachment, This nolu. ; vj
to the matter, would not eotef iiii«
but passed it over witli excuse of il
He makes no excuse as to the fac(^:
ment of a contrivaoise was^ ibst tb
guineas charged on hifn« was i|p ptf
40,000/. Firebrace woi to looaciiil k
this is on tgffravation of the cnnti
Thomas Cooke hafl a double
with, and one without the 5,0
this is an indication, that if I
trivanee, it was not by the eoind
sir Tho* Cooke, to trifle the «ii<iaii1
ceal the eorrnptioti . Tlie «[»eedy j j
House is to be wiaihetl aud desired.
such a ooDtri Vance, sueh a thread I
tioned by ibis noble lord, it is not I
but the House wherii he ts imp
him.
[T} moved. That a oommiiteei
pointeil to withdraw^ lo oooaidar
oe done, in order lo gratify that I
justice/ His friend Mr, 1
contradicting hi m$elf, is 1 1 ill
of Firebrace. Who was his l*amit
his servant? Those were que
asked. M. Robart was a Kcnmntl
preaidcnVs and is fled. Mr Ba
kept the money in his house ? \^t
come of it ? Sometimes he had sp
times it was in his clo«et
money was not in his hoose <
Tuesday moming'i M.
him y but he would never dechtre^oi
he brought it.
In the middle of these debates, i
was sent fi^m the Lords, to ar "n--^*
mons, that it was the opini'
ships, that the discovery m'&<\
Cooke was not satisfactory,
entitle him lo the benefit of th
nify him, and that their )< i l-luivs ,!
concurrence of the Common -. i'liiy
passed a rote, as the Lords kwl ^m
it up by the lord ContDgaby.
April 99. The Lords aequuint«il
,-.1 ,1 uai
be under yours or the nation's displeasuip, I
thank vou agiun for this favour, avvd j»ray if
yoa will not re-consiidei', that this matter moy
Act for
Basil Fir
Craggy, and for restniiiun^ them i
69]
fir High Crimes and Misdemeanors.
A«D. 16£^.
[1270
\ their estate*,' to which they desired the
Dcurrence of the Comnioiis.
April 29. Mr. Comptroller Wharton and
ien» brought up the Articles of Impeach -
ait a^^ainst Thomas duke of Leeds, lord pre-
CDt ; which are as follow :
mCLES or IMPEACHMENT, exhibited
by the koights, citizens, aud burgesses in
parliament assembled, in the nanoe of them-
selves and of all the Commons of England,
against TyoMAS duke of Leeds, President of
his majeaty's most honourable privy-coun-
cil, for high crimes and misdemeanours.
^' 1. That certain merchants tradinsr to the
ist- Indies, haying either forfeited their
■rter, or beinff under an apprehension that
Wf had forfeited the same, an<l having made
■r homble applications to their majesties in
and] for obtaining a charter of confirmation ;
» said duke of Leeds, being then president of
Bf majesties most honourable pnvy council,
d sworn to give their majesties true and
Ihful advice, did, contrary to his oath, office
d duty to their majesties, and in breach of
a great trust reposed in him, by himself, his
■Bis or servants, oomiptly and illegally
Ht, contract and agree, with the said mer-
Hts or their agents, for 5,500 guineas to
■eare the said charter of confirmation, and
m a charter of regulations, or to use his en-
■nurs to obtain the same,
v*!. That in pursuance of suck corrupt con -
Mt lad agreement, the said duke of I^ecds
d|lj himself, his agents or servants, reci»tve
' isoifpl, from the said merchants or their
SVrii, certun notes or securities, whereby he
"'tkey were empowered to receive the said
900 guineas u[Km the' passing of the said
^3. That, soon after the passing of the said
Mer of confirmation, the sum of 2,500, part
the said 5,500 ; and soon after the pnssinjif
tbo said charter of regulations, the furtlier
■b of 3,000 guineas, other part of the said
loo guineas : were, pursuant to the said ror-
(loiMitract and agreement, actually received
^«lhe said duke of Leeds, or by his agents or
IviBts with his privity aud consent.
^And the said knights, citizens and biir-
■■a, by protestation, saving to themselves
V liberty of axlii biting, at any lime hereafter,
7 other accusation or iiApeac!in)cnt a^^inst
■aud Thomas duke of Leeds, aud also of
ffiof to the answer that the said Thomas
ke of Leeds shall make unto tfie said articles,
^y of them, or of offering proof of the prc-
*>t, or any other impeachments or accusu-
^ that shall be exhibited by them, as the
^ihall (according to the course of narlia-
^) require ; do pray, tliut the said Thnnms
to oif Leeds be put to answer the said crimes
mUemeanours, and receive such punish -
%Mthe aame shall deserve ; and that such
Bftadingii examinations, trials, and judg-
Sl^iy be HPOii every of them had and
■»•■■ agreceUe to kw and juatioe.''
The Ddke*8 Speech thereupon.
The Articles bein^ read, the duke of Leeds,
repeating several thmgs to the same effect as
formerly, said, ** That Mr. Bates desired that
he would allow him to bring sir Basil Firebrace
to him ; and tliat he bid Sir. Bates take care
of sir Basil, for he took him to be a very ill
man ; but iSlr. Bates said, he knew him Very
well : so after much intreaty his lordship per-
mitted Mr. Bates to bring him. That Mr. Bates
and his lordship had had a lon^ acquaintance
and friendship, and what he did m this manner
was only to liefriend him." His brdship added,
'^ That tbis storm which was now fallen upon
him, was some time a gatliering : and it waa
promoted by a faction, and a )>arty who had
onl^ A pinue aufainst him ; and the kin<^'s busi-
ness had been cklayed on purpose. That he
had an original letter which gave him an ac-
count of this some time before it broke out ; and
it appeared only levelled against him, because
none else were prosecuted ; and there appeared
a joy they could catch at this ; for then they
stupiied ; and sir Basil was treated with to dis-
cover only this part, and so he should beez-.
cused from any further discovery." Uia lord-
ship concliideil, praying a copy of the Articles
of his Impeurhmcnt, and Of the Report made
by the Coinuiittce to the House, which waa
readily granted.
The I>ukl*s Ant^wer to the Articles.
April 30. Tlie Lords sent a Message to ac-
quaint the C(»nMnons, That the duke of Leeds
having this day put in his Answer to the Arti-
cles of Impeachment exhibited against him,
their lordships have sent a copy thereof to them«
The Answer was received and read, and is as
follows: ** This Defendant, saving to himself
all advantages of exc(?ptions to the said Articles,
humbly saitL, Th:tt he is not guilty of all or any
the malti.T.i by the said Articles charged in
manner jihI I'urm as the same arc by :.the said
Articles charged against him. Leeds."
Upon tlir (Inkers putting in the Answer, he
again declared, helore God, ;md upon his ho-
nour and eotwscienn-, that he was not guilty,
and had ^\\'T\1 \vroi:g done hini i:i this accusa-
tion.
May 1. The Lorus sent a M(*ssage to the
Coinn)nns to acquaint them. That they think
thcnisolves obliufcd in justice to put the House
in mind of the Impeachment a<;ainst the duke
of Leeds, to which the Duke's Answer having
been ti-ansmitted to them, the l^onU desire to
l>e acquaiiite<l when they can he read^' to make
gMfui the ArtiHrs of Impeachment, to the end a
( mrain day may he apiraintcd by the Lords for
that purpose.
Upon this, the Commons ordered, " That
the An:3wer of the duke of Leeds, to the Arti-
cles of Impeaehn)ent airuiubt him, be referred
to the consideration of the Committee, to
whom it was referred to draw the mid Attic
I271J
7 WILLIAM IIL Froceeefings agaimt the Duke of
0les of ftnpeachmefit: and thai they do con-
pdvr wl).tt is to he done thereupon, according
} the course of ptir]iiimcDt§ j and report the
aiiie ta the Housi^.'*
May 2. The duke complained iu the House
Lairds of the deJay of the Hoase of Com-
nons^ in not repl yinj^' to hiv An*\^ er» aJled^n^,
Ihat the Impeachment uas ouly to load him
i^ith disgrace^ and thit theA' never intended to
try Inuh And added, " That the parly used
threat partiality towards hitHt and did not intend
to enquire afier others : that they shewed a
mark of their pattiahty and spleen, in their
Amendment to the Bill for imprisouiu^ sir Tho-
aas Cooke, sir Basil Firebrace and the others;
itr Basil was to he baited because he wa^ the
riliiess agiiinst bis lordship**'
ThiH day the Comoioos res^*!ved, " That the
*" • of any money, or other aJvantacfe, to any
member ot parliament, for the (iromotiog of any
matter whatsoever, dependinjj, or to l^ tranb*
acted, in parliament, is a higli crime and mis-
demeanor, and tends to the subversion of the
J!)n|;lii»h constitution/'
Mays* A motion being- made in the Hou«e
%f Lords, to read the bill for granting' lo the
kintiT a duty upon Glass, &c. the duke of Leeds
?ose up and told the Lords, ^' Tliat it grieved
liim, that he, hIio was as much as any man for
the dispatch of the Money- bills^ and never op*
posed any, should now do* it ; but he hope<l tlte
Lords would consider his case, not onty as his,
the cose of any of their lordships ; for it
IS in the power uf a li^iker to accuse at the
I of a session, and one mi^ht lie under it
ithout remedy : and since that they, hv mis-
«ement, had delayed this Money-bill for
?k«i, it wottld not be of mighty ill conse-
<; I I Ite a day or two longer,
: I'ery earnestly, that if the
i 1 wJ not reply * the I m peach -
1 iPged ; for, if it were not,
h' II L* reproach tiiereuf all his
life. 1^ Cummons would do tut-
llimg 1. .. , . . u...»L^h ihey had appointed a
Ck»uimittec lo inecl, they uierbut oucf , and that
for fomi, and never met more, nor would do
any thmgciu il/'
^* 'ly the Commons, at a conft-
> a wiilttni I'aptr lo J he Lords,
^ t the Couimon* will make
^ List the duke of Leeds, in
I 11 the Ajrlto5'«^ nirntinued,
iit* »ho »* !' d to
<l ios, hftVf i' \ cm*
l»k»ytd in iuukmg into nidence against I he
fltthr ; and that in Ihc prcfiaration of the erf-
thcv nicct uiih an obstruction,
f nr Itohart, uho apjtcafed hv the
Ivio
the to
ia»
tmittce
wiine^, U wiihdru'
of b<^iih (Ion
whi*^
ha*t
f male g>
moat being' desirous that jttsbce^
out any manner of delay/'
Tl»e Pa|>er bein^ hrou|^l|
HoufiCy and reail, it wi
without any debate^ or any i
the duke of Ijeeds, that an "
made to the kinj^* to iaaiie « ¥t\
fftoppinif the porta aniJ seisin
The duke, in ttssistsnce to
them, that it was requisite lo in
Christian name, and mnl his
his siroame being RobarL
The Duke of Leedi then roMi
the House of Commons, for
heard^of, an unprccedentrd
a man with crimes. ' aj
to make it pood, I
denccs; and now tbey - ^'
a material wiiness, and i
duce this xviloess; an li ^> i«.i*.r*j|
more to produce evidence to ae
to answer mch questions by whid
himself. II ts lordship then pr
?;Oaiut the House, that in truth, f
ti*l>art to see his daug'hter Lemp
into the country big^with cliiltlj
to call at Minns to see his dan
being' in his wjy lo his dftn
where the mtssieoger ot -
might hare kn*nvn he u
That his lordsl
sent a me^ei .
his fooluian WiiWrvi rMUi nxna iv^od
Sunday morning, (fur which l^e w|
lo let him kn*vw U ' ■-* * % i
the house, whicti ^
sibly return: That .,.> ,...Js
man he would ^o to sleep, nnd
wilh Robart in the nmrnifrtf^j
called him ; but wli< 4^
in the morning, «hp
and, upon enquiry, he fouii4|
nor pull off his b«K)ta in his i
footman said, he a^ked wli«
true, th:it this lord was itnf
Bates was in priMin ; w K
to lie truf : and his lord:-;
eued Biibart, TSi
a letter from Roln
his lonl, thut he dt
S» itzer 1 a nd , th m n , dl
noil Id write hin '
the uiaiter o( (hv
That his h>rd*!iin 1
wiiiii<»r,hy \l
M^^r he hmt
wowld UmI ht N* *
that, my UmU
I sled upon
LHrl'trr |[|t
am* I pcachmeiii fthall fall*'
rrs]
Trial ofPatrici Kimttftmount.
A. D. 1697.
[1274
Upon which lome few Lords cried, * Well
ored*.*
Howorer, the lords read and passed the bill
Mt Mune daj, for the duty upoo friass, &c.
id bis majesty came to the boiise and gave the
»yal assent to several bills, and among the rest
• the Bill for imprisoning sir Thomas Cooke,
r Basil Firebrace, Bates and Oraggs ; and
■o to a bill entitled, * An act for the king|s
oat gracious and free pardon,* but with this
* ** Surely that oat-cry of theirs was rather
mark of scorn than approbation : for though
m dake, by sending awav his servant, hadde-
ivcd his adversaries of that legal proof which
M oecessary to conviction, enough had ap-
1 to prove him guilty in the opinion of the
! world : and if any tliin<^ could be added
s the reproach which he had brought on his
liaracter, on the high office he posMssed, and
■a government he served, it was the solemn
rvtestation of innocence he bad set out with,
id the contumacious demand of a speedy
ial, which he knew neither could or would
hm place." Ralph.
exception, amongst others ; < Except also all
persons who have been or shall be impeached
m parliament during this session.'*
And then his majesty commanded the lord
keeper to prorogue the parliament to the 18th
of June, and it was prorogued accordingly.
On the S4th of June 1701 (two complete
pa^'liaments having intervened) the House of
Lords, taking notice *^ That the Commons hav-
in^ impeached Thomas duke of Leeds, of hig^
cnmes and misdemeanors on the 27th of April,
1695 'y and on the 29th of April exhibited ar-
ticles against him, to which he had answered ;
but the Commons not prosecuting, order,
< That the said Impeachment, and the Articles
exhibited against him, be dismissed.' "
f ** Burnet, who, speaking of the act of
grace, which passed at the close of the ses-
sion, takes care to remember, it contained an
* Exception as to Corruption,' acknowledges
' the whole discovery was let fall : and,' con-
* tioues he, < it was beliered too many of all
^ sides were concerned in it ; for, by a common
* consent, it was never revived.' " Ralph.
08. The Trial of Patrick Kinnynmount, for Blasphemy* and
Adultery : 9 William III. a. d. 1697. [Now first printed
from the Records of Justiciary in Edinburgh.]
^n* JosnciARi£, S. D. N. R^ls, Tenta in
nKtorio Burgi de Edinbur^, vigesimo
■eeando die mensis Novembns, millesiroo
■czcentesimo et nonogesimo septimo, per
bonorabiles viros, Adamum Cockburne
de Ormistonne, Josticiarum Clericum,
Dominos Colinum Campbell de Aberu-
chill, Davidem Hume de Crossrig, Joan-
■em JLauder de Fountainhall, Arcbi-
baMum Hope de Rankeillor, et Jacobum
Falconar de Phcsilo, Commissionarios
Justiciarii diet. S. D. N. Regis.
Curia legitime affirmata.
Iniran'
Pntrick Kinnymnount of that Ilk.
M this (late, there appears on record a long
■Moealor on the relevancy of various charges
Wtiaed in a previous indictment against Kin-
■■nount, also the following niiitute :
Tbc Lords at my lord advocate's dcsyre, and
BiHpect of the absence ol' severall niateriail
^Jtatnes, who his lordship affirmes, are under
* Concerning the Scots Law of ,
* Blackenzie (Criminals part 1, Tit. 3,) who
' *vct. 6. mentions the ca^ of a woman, who
*■ fiaed f«ir drinking the devil's health, which
*^«ver, he says, was not held to be blas-
"^y. Sec, too, the Case of Thomas Aiken -
'•^i p. 917, Of this Volume.
Kinnynmounths influence and abstracted by
him, tbev continued the dyet as to this prooes
till the first Monday of December next, and
ordained the pannell to be carry ed back to pri-
sone, and the assysers and witnesses to attend,
ilk persone under the patne of four hundreth
merks, and grants certificatione and caption,
against the haill al>sent witnesses.
The said Patrick Kinnynmont, of that ilk,
was also indyted and accused, at the instanc«<
of his ma'tics advocat mentioned for the
crymes of hlasphemy and adultery in manner
mentioned in the indytment, whereof the tenor
follows :
You are indyted and accused at the instance*
of sir James Stewart his niaUies advocat for lii«
highnes inteicst in the matter under written,
viz. That where by the law of God, and tho
layes of this and all other wcell governcfl
realmes, the crymes of blaspheniie and of
wicked irreligion against God and our Saviour
Jesus Christ, and the cryme of adultery are
most horrible and detestable cr^'mcs to be pn-
nished will all sevtirity ; lykeus hy the act of
parliament Charles second, paihanient first, an
ftventy first,* entituled Act against the (7rymt
* The Act referred to is as ftillows :
Act against the crime of lilasphemy.
*' Our soveraign lord, and the eslalr<« of par-
liament considering that hitherto tUeve K%.\.\^
1876]
9 wauAM in.
Trial ofpairick Kinnjfnmaunt^ [tM
\mi btofipbemie^ it is* ^(atuteaQd ordaioej, Ihat
[nrhosoevef not bring distracted tn Uh vvittg,
«bali m\\ upon, or curse God, or any of the
]personf»s of the blessed Trinity , sbaU be pro-
I C(-sK«d before the cbeiff jtistic«, and bein^ found
guilty, shall be punished with death ; aod far*
i dei-» it is statute, that vrhosoe?er sbalt den^
r0oif f or any of the persoovs of the blessed Trt-
[ vitr, and obctiimleJ y coottBue therein, shall be
^ in lyke manner puui$he<l with death ; lykeaa,
I ^y tlie <fle Tenth act* of the fifth seMione of the
^ current parltamejit, intitnled Act against Bbs-
pheniy, the forsaid act of parliatneot is not
^nly ra^titied, but ftirder it is statute and ordain^
[ ^/tbat wbosoeter shall in their wryteiug or
nurse, deny, imput^ue, or quarrel), argue or
reason e, against the Being of God, or any of
, the persones of the blessed Trinity, or tbe au-
Ihonty of the Hrily Scripinres, or the provi-
f dence of Go<i, in the jjovernraent of the world,
•hall be punished wiili the paines contained in
I the satd act; Lykeas by the act of partianaenti
^ueen Mary, parlia^t fifth, cap. tn-enty, open,
; inanifeft and tnt'orrtgible adulterers are or-
dained to be punished by the escheat of their
|"1>een no law in this kingdom^ agmiost the hor*
1 vible Clime of blasphemy. Therefore his roa-
I Jestie, ^ith adriceof hib ^aid estates, doth hero-
[ ky statute and urduin thut whosoef er hereafter,
kliot being distracted In bis wits, shall rail upon,
T#r curse God, or ony of the persons of the
Messed Trinity, shall be processe^l before the
chief justice, and Wing found guilty ibfill be
piitiisbed witlk death. likcas^ his majesty,
vith advic^e foresaid, finds, statutes, and or-
I lUiiis* that whosoever here&fler sliall deny God,
[ 4IJ* anv of ihe persons of the blessed Trinity,
1 «lstioately continue therein, sbali be pro>
■ed, and being found guilty, that tiiey be
r jpuutsbed with death/^
* After coQtlrmiug the fortner Aci, tbif Act
'«i>roceed!s:
** And further, bis nuycsty, with adirice and
I consent foresiiic), statutes and ordains, Tbnt
whoever hereafter shall, in tht^ir writing or dis-
j course, deny* innnnoi or quarrel, argue or
I reason agaioa i uf God, or any uf the
\ persons of the If t»^ty» or the autborUy
I iii' iUe Holy Scriptures of the Old and New
I Tesiatnents, or the providence of Goil, in the
^ government of the world; stiail. for the first
Fuult, be punished with imprisonnnent, ay and
while they give pubtick satisfaction in sack-
Iclotb, to ihe cuij^regaljou, within which the
i^iandaj w is itununitted. And for the second
llault, the dtlinrjuint sbnil lie fined in an year's
If alued rent of Uin rxMil eNtate, and the tiventJt-tb
L|>:irt of hi9 perfcoujil estate (the equiil bdf of
livbicb {iiwA are to be apidied to the use of
|4iie poor of tiie parish, within whiob the crime
■hali happen to be MHt.».iL»t. ,| u,yA (h*i rt«hr,r
Ikalf to ibe party ii>
loiprisoned, ay and >
iSKtion ui smpra. And t«ir ihp ihird tauit* he
' aU_be j>M(iHhed by death, as an oiiat^uiuv
goods » and ftirder by the psrliaooent njnl,
cbjip. seventy fond h * niH'« n M*rj, u^ ip4
m 411 i test a Jul tei >: i i < sliabU b^ M,
fcsefting the foi . .^ rzm\i ^
aduUerctn; and by liift »*n hm
siicth, cap. an hundn^l aik.i < . 4
cUired to be nottour and miaitia; uliAr^
where bttjme« arc prof!ri^»l or tbv iikiliav
keep company and \m\ a^ btl^
gttber nmti^rtously f or :t «i4 Ml
ftdmoniihecK n ' - ['> uuafit tk ki
and are thert i a iiei NeitrtMi^
that yow kUk -Tk Kio8pt»«^
sh akeiog off all IV and <iii r nmm
to thts great and di *..:.„. ;.»mi*arGo^iBl«
Saviour Jesus Christ, and all nfiirftoil
majestie*s laws and ntiihoniv. Umiv injmd
to blasplienie, an*
wicked irrelt^rioiu
name of God and oiir Lord Je
soe far as frequently, or at Jn*l or
other of the day es of the moneibsaf
1696 and 1697, ^ou hare prctuiasd
your wicked passione and trroigioo, *"
a nian bougar of God» and tciii
lykeasyou also blaspbeoMiiisty
Christ was a bastard, and fjurdcr M
Janvea Dewar, tn LuisbgvUie, k F:
cutting out of his ears unlea bt
Christ his 8jiviot»r: And Jfon
wickedly said, and which ts b
agajno repeated, if any man \\mV M
one hand and Christ << ,y
stow the luggs out ot
tbem both, and vow woo hi stse who
it was ill done. And tarder on one Of
on severall of the daye* and n't^tl
monetbs and years fornftulw, vowbei]i|(j
ried man to Wiil!
committ nottour and m J St«nr,i
adultery with Jonuet > l^
miiid, in soe much thui \
pany and bed with her '•
for dayes, neeks anci
servants and others in w^^ .^^u^*, ,
bed with her as avouedlv as if fbt
your wyffe, and lu^*** iift-fi ficqi
ihrowe otf your t! r infd
bed logither in th- r, toll
affix>ntedly, that you have Itad m
in anothtr bed, besyde yow and yi
leresse m the same roumt* nt It
ootnmitted adultry by beddli^ ■
the said Jannet as with your
which, it is manifest, that yow artf
and pairt of ihe forsaid crymci of I
irrehgione, and adultery, wUicb *"
bytbelvi ' *^ * ^^ Tnqad*t
to bo I uo«o<
con*^" or Ot
Ih. rand
ol!i; .^ ....- j',^~ :u lymr
Sic Subtcni^Uurf " /*
of blii«plu*uiy And adult«^y liU bba M'
J^ Bla&phemt/,
l>ecem¥er next, tnd the indytment be-'
ated tiva voce. The lords ordained both
to interchaDge tiieir debates, in wryte-
irixt and the said day.
Deeei9her6^1697.
inned till Monday next.
iTioNE for his Miyesties Ad?ooat» againat
itakk Kinnynmount, of that ilk.
ck Kynny mount of that ilk baring from
di bein toose, debauched and profligrat, as
or, and being accused in anotherl^bell
him of serendl extravagant and wicked
r violence, hath added to alibis wicked-
cry mes of horrid bla8|iheray, and of not-
t least of manifest simple adultry, as
nilarly represented in the lybell raised
Dt.
the relevancy of which lybell, in soe
oncems the blasphemie, nothing is or
>biected, the wonls lybelled being raa-
lilletng against God and the Lord Jesus
knr, which by the act of parliament is
lade capitall, without the necessity of
the quality of the pannalls obstinatly
vring therin, which is onl^ a qualifica-
quyred by the act of parliament, as to
ying of God or of the persones of the
Trinity, which may proceed from'
id error. Whereas, railieing being a
of pure and devilish malice, if once
tasd, renderft the committer absolutely
but the only thing alleadged against
cU, was that the condescendence upon
le, viz. on one or other of the dayes of
meths of the yeares 1696, and 1697
iras too laxt ; and that the place was
B marked ; as to which it was answered,
\ Uasphemy hath beiu indeed habituall
annau, soe that it is lybelled as sucli, or
, or ane or other of the said dayes.
latin cry mes of this nature, neither tvme
e are soe materiall and commisable at
ae or any where, and are not ly ke other
, as of manslaughter, mutilatinne, or the
rhicb leave visible effects, and therfore
ave both tyme and place more easily
I*
atSrdly, The witnesses will condescend,
m the condescendence if the pannall be
•d to give in his exception oiatibi or the
I may then be considered *, and this in
is simicient in ly belling any cry me,
n the day or iplace make not a special!
itione.
kit 4thly, His majostiu's advocat is con-
need I)ci8, that the lybell be restricted to
ir or five last moncths of ihe year 1696,
i two or three first monetlis of the year
Secundo, it was objected that the adul-
bcHed, hod not all the qualifications re-
by act of parliament to inferr nottoiir
ry, and therfore iioe pain of death : To
A was answered, that the qiialiHcationes
iM of fiarliament are alternative, viz.
I procreat or nottour converse at
A. D. 1697.
[127*
bed and board, or willful! converse tHer prubi-
bitione be the church, which qualificationes
are reqnyred disjunctively and not jovntly, and
are also soe lybelled : lykeas the lybell sub-
sumes upon the second member, viz. nottour
converse at bed and board, secundo, the lybell
doeth chaige not only nottour adultery, but in
case nottour adultery should not be found, then
simple adultery, which is at least relevant for
the pains of law.
Defences far Fatrick Kinnynnumut of that Ilk.
Against the lybell raised and insisted on
against himhy his msjestie*s advocat, in
answer to the mfbrmatione given in by his
lo'p relative thereto.
Scverall malicious persones having conceivecT
a deadlie prejudice ag^nst Kinnynmount, and
finding no imaginable way to vent their ma-
lice, they did at last fall into this damnable con*
tryveance, viz. to informe his majestie's advo-
cat, that the said Patrick Kinnynmount was
guiltie of, and had committed severs 11 attro-
cious cry mes, whereof some were capitall, and
did soe clamour upon and importune lib ma-
jestie's advocat, that at last they did impetrat
from his lordship ane warrant sumraarly to ap-
prehend and imprisone him, and ikiBnyn-
mouni being imprtsoned, he did, ai\er severall
bills presented to the lords of privy councill, at
last obtaine a dely verance, ordaineing my lord
advocat to give him ane indytment, and insist
i^nst him before your lop's of justiciary ; and
iQnnynmount being accordingly indyted, and
having compeared and proponed his legall de-
fences against the said indytment, the same as
to the relevancy b fully determined by your
lop's interloquitor, and Kinnynmount cfoeth
with all due submissione acquiesce in your
lop's justice therein.
Dureing this denendance, Kinnynmount's
malicious enemies being fully convmced, and
finding that the crymes lybelled in that first
indytment were soe false and groundless, that
It was impossible that any probatione could be
had theranent, soe boundless and insatiable was
their malice, that durinfr this dependance, they,
by their importunity, did prevaill with my lord
advocat to give Kinnynmount another addi-
tionall indytment for luledged blasphemy and
adultery ; and the same being debated before
your lop's viva voce in open court, my lord
advocat hes given in ane information against
Kinnynmount, wherein by way of preface his
lo'p accuses Kinnynmount as guilty of gross
debauchrie and profliffateness, and of extrava •
gant wickedness, antl deeds of violence from
his youth ; but Kinnynmount knoweing that
this proceeds only from my lord advocate's
malicious informers more than from himselfe,
and that your lo'ps are soe just, that neither
clamour nor calumny can have the least in-
fiuence iipon your impartiall justice, doeth
therfore foibcar to make any furdcr nnswcr
than to deny the s^me as absoluiely false }■
every poynt.
My \i
upon th(
9 WILLIAM UL
Triai qf Patrick Kinn^mounit
My lord adrocat liaviDsr iherafler iD^iiaieii i
upon the boiTid exprpiisi«iis Ivlieiled and al-
Itratlged, Ihat tlie sitmie was simply capital],
wkliQul ilie neee3$«lt;^.ol addin;^^ that itie paunall
did nbsibately coDtinuc tUerhi*
It was Biiswerf*<i ibf llie pantiall, iltat Ue did
tkot unly detjy the jiaill (ixpres&ions ly belled^
hut uUe( ly fmtn hii ^ery mull and heart diU
distaste aQ J ahhorre (iie &amef oor can the pan-
Dai) be persiiaded that ev^r any such expres-
sions did C5ca|>e him ; and Ingeniously de-
clair^s, I bat t'roni hw fery heart he abhotns to
jiear such eKpressioDs lain lo the charge of any
Cbn^uan ; and if he vrere eouseicius' to him-
fil'ife of any such f^w\i (as trucly he is not) he
w^imUI raiuer throw himsel(e upon bis tna-
jeitie^s iii«ircy, Ihau offer to prnpone any defence
tber a^ainfft, but being' conadouK to biiaselfe of
noc soch guilt, atiA only appreheuBife of de-
baucUeil ami siibometl i*itn esses, bia defence
against Ibe said ttidytmem is shorily tbis^ vh.
That fhta said iodytment as to the Mmsphemy
Jy helled, la tio wnyea relevant, in re&pect it
UoejB not <?ond€Scend upon the place wbert* the
expressioties ly helled are at I cadged to haye
hctn uttered and spoken by tbe paituall, end
&H cnniioaU lawyers that ever wrote doe un-
dni mott.'^ly agree in tbis, that in all criminal I
tybells Locm Midi ought necessarily to be
ly belled, because by and attour tbe common
brocard, that dolus taitt m gcmmlibu^ no
fnimtuaU tyheU otigbt to be sustained in tupi-
tali crimine^ which is contryred of niir|iu^ lo
preclude tbe pannall from the heuente of any
defence competfttt and allowed to him by law,
such as alibi as to tht^ j»annall bimselfe^ or aUbi
li lo one Of more of tbe witnesses adduced
igtiust tbe pannelK
2. As this lybell doth not bear the locum de-
/tr^i, «oe iieilber doth it condescend upon any
definite tyme, but allennarly beares the ex-
pressions ly belled lo have bein spoken liy tbe
pannall upon one or other of tbe daves of one
or other of the moneths of one or otner of tiie
yeares ssixteen hundred and nyntie siix and
teven, wiiich i^ in such generall termes, that it ia
truely adtoired bow my lord advocat can con*
tend or pretend that such a general I lybell as to
the ly tne either can or ought to be sustained be-
fore any court of the kingdome, farr less before
iuch a soverajgne court where none but per-
tones weiU knowen in crlmmall lawes doe ajtt
ay judges.
Attd whereas my lordadvocat in bii inform a-
lione pretends that he opponcs the lybell, bear^
ng that tbe pannaU used the saids expressiones
frequeutly, at least upon one or other of tbe
dayet of the ^aids tno yeares : Secundo, that
be ia content to restrict his lybell to one or
Other of the dayes of the four last motietbi of
tbe year tixteen hundred and nyntie six, aod
three first monetba of theyear sixteen hundred
fttid njnety teven: andT^tio, hh to*p pre>
tends, thai ibere is noe neeetsity to condi^cend
Upon lyme or place in the cry me of blaspbe-
mie as in other cry toef of rauttlatio^e or man-
ilMVghterf wbi«b leave visible efi«ets, aod
therefore may hare tyme aud plac^mc
marked i Q.uarto, tyuneaml place msk<
fereuce aa to the cry roe of hlaspbemii
wiinaceea will condescend upon both m
depone.
To all which it was reply ed for the
That the fornier defence* atood un^«<
relevant notiThbstan^iing of the saidft
and as to which tbe couimon law mi
of ail lawyers is repeated Jind oppooi
all pursuers in criminall tybells ai^ot
make tbeir lybelLs releTant and to cot
€i insintctit soe incidi^ non sunt it ft
triia h&minis : and what grt^ter sol
layd for the ly fe of a man tiian to suit
aue iudy tment a& Ibis, by which tbe |
absolutely precluded from bi5 c
d 4^ fences of Aliliij botti as to him»etfe
ueases, and is also precluded from i
other wiiness^a who mi^^ht bav^e heiti
at the lyme, and mi<bt h^ve clearly
tbe pan nail aa to what ib^ «tilnes«ei
against the pnnnall, (and u bo are all ki
be persones tnot^t su^per-t) m«ght bi
depone aeiiinst biro. Heiundo, tbe
having subjected himselfe to a le^^ll tr
veiiturcd hu* lyfe upon the i^ue nf tbi
metiti tbtit- is in effect a judiciull tru
l>etv* ixt ibe pursot i- (both as to th* n
and probatiun) and the pannall^ fforfc
Informed by bis lawyen* that ihe uw
roent waa unques^ouably irrebrvftot ^
descending upon the tyme and pi«
thereupon subjected himself to trysll
lop^sjufitlce^ and repeat es aod oppoDf&bi
defences as to tyme and ptace against I
vancy of tbe indytmeut ; neilher c^
advocat be allowed to alter, qualifi^ ai
the iudylraent in prejudice of thi& |«a
the relevancy thcrof ns it f^tandfi lousli
mined by your loji^s inlerloquitur, inj
in vrhmnalibiiS non lictt VQgart. Teft
the crymes of murder aod mutilnti^
tyme and place be uoce^sary to bccnoA
upon (as niy lord ad vocal bim^rire i
ted get Ii) then mntfo mogti ought the »
condescended upon in the cry en e of blv
uf*i non est at corput deliciit nor tay
Teslige of the cry me renrtainiugf aad i
TpucG or reason e can be ossi^wd why
place ought not to he I j belief! in tlit <
blasphemie as weell as in others. Qn
pannall bes ventured his life upon Ibe
tbt's lybell as it is labelled, ami repi
former defences against tbe rekraac
satue.
And as tny lord advocat cannot kil
alter or quahl^e the ^me from ii bal ii
soc neither can his lo'p be allowed H
tbe jutme by dejio^ition^s of witi
therhy the pannall would be pn
from the l>enefite of vonr lop*« {
the relevancy of tue i|ualiBoiil(iii
deponed upon, and soe ruu ibe hanf^^
ing probations to be led uptin matlirf 1
tibly in tbemselve^ are not releriali
to be precluded oil possitliitj of tiE
M
Jot Blasphemtf.
Mt any such matters. It beingf
r him to adduce probatione befor
9ceed to advvse and giwe their
\mng by the law oblidged ex in-
proeeed to the advyseing*, but the
es bis said defences against the
d Doe man will pretend that wit-
eiTeable upon ane indytment soe
aelfe.
I adbereing^ always to the forsaid
inst the rdevancy of the lybell,
Dtreatiog ante omnia your lord-
[uitor injure therupon, doth in the
jnenioiiafy declaire befor Almighty
ifaorres and trembles, to hear any
ones as tlieiie lybelled charged
ristian, farr more to have them
a charge, neither will the pannall
his lawyers either to palliat or
laynousoess of the words lybelled
but doth simply and absolutely
in every |ioy ntand article thereof ;
■ly abhorres the same, soe he will
defence which may in the least
fie or vindicat any such ezpres-
se lybelled, and denys that ev^r
liiro, and in caise that ever any of
es lybelled did escape tlie pannall
olutcly denyes and abhorres) the
tainly bein when the pannall hes
!ly drunk ; and it is weell knowen
Innk and after cups are mad and
le pannall humbly conceaves that
lanous expressiones when he was
ink have escaped him (which he
lyes, detastes and abhorres) yet
lever be sustained to inferr agamst
the paines lybelled. Because,
5 twenty first act parliament first
the second, the punishment therin
nly appointed to be inflicted upon
distracted in their witts, and if
ressiones as are lybelled did ever
mnall, it is offered to be proven
It the pannall was al)solutely
stracted at that tyme. Soe that
t of parliament can never be ex-
t the pannall as to any expres-
I by him when he was madd and
lid IS, and the other act of parlia-
i upon, viz. the act sixtet-n
lyntiefive, appoints allcuarly tlie
0 be capitalK and this is the first
ly such villainous cry me as this
upon the pannall, and conse-
n never be said to have incurred
on therin contained. But the
utterly deny and perfectly detest
U the villanous expressiones con-
jrbell.
lytment, Kinnynmuunt is lyke-
M for alleadged adultery with
, and the pannall having alleadged
;hBt pairt uf the lybell, the act of
d roilitat only against nuttour
Dottour adultery could not be in-
(ly of the qaalifications lybelled ;
A. D. 1697. [ISgft
and my lord advocat having restricted his ly-
bell to simple adultery, by ofTeriur;' to prove the
pannalls frequent goring to bed with the said
Jannet Nisbet, the pannall did absolutely deny
the same ; and it was further alleailged for him,
that albeit their goeing to bed togither, were
proven (and which the pannall denyed) yet the
same could never he sustained to inferr against
the pannall the crymes and paines lybelled ;
unless carnall dealling were lykMayes' proven,
but the most that the same could amount to
was a scandall, which is only proper to be re-
mitted to the Kirk session, to be cognosced by
them . 1 n respetit whereof,
Decern^ 13, 1697.
Intra »' Patrick Kinnynrnount, tif that- ilk*
Indyted and accused for being guilty, actor^
airt and pairt of severall roiirders, abuses,
hamesuckens and insolencies, committed upon
severall of his majesties leidges, conforme to
his indytment recorde<l 11th of Auq^ust last.
Piimieri.— »8ir James Stewart, his maj'ls ad-
vocat ; Sir Patrick Hume^ his inaj'ts soUicilor.
ProWi in Defence, — Sir David Thoircs ;
Mr. Tkomat Skeine,
Tlie lords commissioners of justiciary, with
consent of his majesties advocnt, desert the
dyet simpliciter against Kinnynmount, as to the
haiU crymes Ivbdied in the said indytment.
The said Iwick KinnymLount of that ilk^
being also ind vted for the* cryme of adultery
with Jannet Nisbet his servant, and for horrid
blasphemy. The lords commissioners of jus-
ticiary, <ieserted the dyet off consent of his
maj'ts sollicitor, as to the said article of adul-
tery, simpliciter; and did proceed to give their
Interloquitor upon the article of blasphemy,
whereof the tenor followes :
The lords commissioners of justiciary hav-
ing considered the indytment pursue<l nt the
instance of his majesties advocat, against Pa-
trick Kinnynmount of that ilk, fur the cryme
of blasphemy (which is tlie only article now
insysted in) with the debate therupon. They
find the said indytment as it is restricted by his
majesties advocat, to have beiii committeo iu
the four or fyve last moncths of sixteen hun-
dred and nyntic six, or two or three firvt
moneths of sixteen hundred and nyntie seven ;
relivant to inferr the paines lybellud, and finds
the defence that the pannall was furious di- dis-
tracted in his witts relivant in the ternies of
the act of parliament, but repelts the ulledgi-
ance of fury or distractione, uryseing from
drunkness, and idso re|)ells the h.-.ill other de:
fences proponed for the |»annall, and remitts
the povnts found relivant to the knowledge ol
the assize. Sic SubscriOiiur,
J.FAl.tON.%R,I.P.p C.
Efler pronouncing of the which iiiteilo-
quitor, my lord advocat consented to the de-
serting of the dvct, and ac^curdingly the lordj*
commissioners of justiciary deserted, and be
thir presents deserts the dyet, as to the cryme
of blaspheuiie simpliciter. Sic Suitcribitutf
J.FALC0N4mI.P. D.C.
4N
1283] IS WILLIAM UL Proceedtngi
theDmk€tfK9rfiJk
409. The Proceedings in Parliament upon the Bill of Dii
tween bis Grace the Duke of Kori-olk and the
Mordant:* 12 William IIL a. d. 1700.
:££I>INGS iHTfu HOUSE of LORDS.
Trhnuiry 15, 1700.
XJpOV reidtD^ ihe Peiiumi of Heni^^ dgke of
Norfolk f praying leave to briagf in a bill to ^fA'
tolte bis marrimge with the lady BItry Mnr*
dan I, and to enable him to marry ag^Ia, be
having' certaiij proof of his Mrii^'a linn^ in adul-
tery with sir John Germoine : it b ordered,
tha't the «iid Pelitioo be taken into oocitidera*
lion to-morrow,
February 16*
Read the fimt lime/ An Act to dissolve the
duke of Norfolk's marrin^e with the lady
Mary Mordant, and to enable him to marry
agaii) ;* In the words following ;
*■ Htimhiy sheweth, and comphineth to your
■i mo«t e^Kcelleot majesty, your true and laiwfiil
^ subject Henry duke oi Norfolk , and earl<
t inai-shal of England, That be did, some year« I
^ stfice, marry the lady I^Iarv Mordant, his I
now wife; and, that ahejiath, for div^
f years, lived in separation ftoin the ssaid sub-
>je€t, and hath bad unbt^ful familiarity and
I adulterous conversation with sir Jobo fier-
^ uiarno, hart, and is guilty of adultery on her
' iiart, and hath brokt^n the bond of matrimony.
' Forasmiicb thcrctbre, as your said subject
I hath no issue, oor can hope for uny other
' tliao spurious issue to succeed him in his
1^ honours, dignities, and estate, unless the said
^ marriage be dccWid void, aud aonulleil by
^ pflrliament, and your said subject be eDablecl
[• lo marry any other woman. Blay it please
^ your most excellent mQJe»jty, out of your
1^ princely goodness and compassion to your
I* ttaid iubject^s misfortuQe and calamity, and
f* for the future support and comfort of bim-
T* self and family, that it may be enacted: And
L* be it enacted by the king^s most excelleut
7 majesty, by and with the ad rice and consent
'•of tlie hitdi sniritual and temporal, and of ihe
M commons in tUis present parliament assembled,
L* and by the autuority of the same, tl>at the
p said Uind of matrimony being violated and
M brokeo by the manifest open adultery of the
^ taid lady Mary IVtordaut, be, and is hereby
[• enacted, declared, and afljudged to b# from
y henceforth wholly dissolved, acmuUed, va-
r* cated, and made %ojd to all intents, oonstruC"
I • lious, and purposes wbalsoerer i and, that it
f * shall ai»d may be lawful to and for the aaid
• Henry duke of Norfolk, at any time or times
^ herealW, to cim tract uiatriraony, and
* ladv Mary, m if slie wer«
* wiA any other wocxun or i
* he might InwlViTlv int\rrv
' Mary IV iiai i
* mooYt ^^ ated j
* gOOQ, jii f'arrTagn|
*GeadJQ<]_ I'luktal
* conslructioiii, Aud pur(Hi£Gs;
* and every child and children,
* matiimony , shall Ij<
■^ taken to be born in
* legitimate asd inbenuu^d?, and
< Ihe &aid dakedum of Norfolkf
< marshal of E rv- ^ — ^ - r. d all
< dignities, harr lurv, and i
« Dour, lands, i. .,lj, and otb«r
* meets from and by their fathers, qmi
*■ other ancestors, in like oaunner anij
* any other child or childreo horn in U
< trimouy shall or may inherit or heti
^ accordmg to the coarse ofinber^
*■ in this realm ; and to hare aod i
* ▼ileges, pre-emineocies, i
< claims, and demands, as
* childreu bom in la^tful wcdk
^ claim by the laws and cusitoiaii i
* dura. And be it ft- -♦•■"- ---
•said Henry duke <
* to be tenant by c... _ .,
* inheritance ol* s«eti wife w
* hereaAer marry ; hih! such wi
* marry shall be ciit
, ^ and tenemenls m li«
*of Norlulk shall !. . d
* whereof she shall L .. ^Ide
*' husband or wife msv ^r might J
*■ or enjoy. And the child or ctid
* such iimrrluge shall and may
* make title by desoeul or otbe
* from any of tlr-- ^-^t^' ♦- *■■ n^i i
< or children i .i«
* straint, prohiL; , u, ....,.,, -c,
* tution, prescription, or ciisIoaI
* excix'iscd, or used to the <
' miseSf or aiiv of them, in auj i
* standing. And be it fa rthtr <
* authority aforesaid, that tbr
* sJiall, and 14 hereby harrfnl
* and from all do^vi uj
* from all right an!
* unto or out of any oi me
* lands, or hereditamenta
* lint! f'"t ■'* "-'^veyiiioB
tiu;.^-,,, ii-w, , uutofanj]
matrimony, and to
■ matry (as well in the hfetime of Ute said j « lands or bereditamentv, A
* fore made bv i\w kaid d "
^ See Tot. IS, p. 88:1 and 997t ^^ twa * ancestum or ; t]
ir Trials rdating to ihit afair. ' um «r bcocL
If85]
mid kit Dueheutfor a Dioetee. A. D. 1700.
[1286
of her body, or for easing, discharg-
counter-tecuriDg any the niaoort,
tbei
ing, or counter-tecunng any
lands, or hereditaments of the said lady Mary,
or any of her ancestors, shall be from hence-
forth, so for as concerns the said lady Mair,
or any issue of her body, or any interest ror
her or them, utterly Yoid and of none eflfect ;
and all and every the said honours, manors,
lands, or hereditaments of the said duke, or
any of his ancestors or trustees, shall frtim
henceforth remain, and be to and for the use
and bianefit of the said duke, and such other
person or persons, and for such estates and in-
tmsCs, and in such manner and form as if the
said lady Mary was now naturaUy dead
wicboat any issue of her body. And also,
that all limitations and creations of any use,
catate, power, or trust, made by any of the
nnoailorsofthesaid lady Mary, unto or for
tlm use or benefit of the said duke, his heirs
•rnasigns, out of any the manors, lands, or
becieditamentsof any the ancestors of the said
Indv Mary, shall be irom henceforth void,
and of none effect. *And be it further
wncted by the authority aforesaid, that the
said duke of Norfolk, Kis heirs, executors,
admbistrators, or assigns, shall, on or before
the 95th day of March, 1701, pay, or cause
la be paid, onto the said lady Mary, or her
aaMtts, the sum of 10,000/. of lawful money
ef £nglandy which was the portion in money
paid on 'her marriage with the said duke ;
and on default of payment of the said sum
of 10,000/. on or before the said 525th day of
March, then, and in such case, she the said
ImIj Mary, and her assigns, durinpf her na-
tural life from the decease of the said duke, if
aheaball survive him, shall be entitled to, and
diall and may have and enjoy such jointure
and other advantages as she might or may
linve or claim by virtue of a certain indenture,
QnuM|uepartite, made upon and in considera-
tina of the said marriage, bearing date the 13th
dnjr of June, 1677, and made, or raentionetl
to have been made, between Henry late
duke of Norfolk, then earl of Norwich, father
ef the said duke, and the present duke, by
the name of Henry lord Howard of the first
part s Henry earl of Peterix>row and the said
dnchi, by the name of the lady Mary
Ifeidant, sole daughter and heir apparent of
the aaid earl of l^eterborow, of the second
partf l^fitkry marquis of Worcester, William
•■rl of I\mis, and Henry lord O'Brian, of
die third part; Arthur Onslow, esq. and
I Dalmatroy, cso. of the fourth part ;
Bmon Fox, esq. and Thomas West, gent, of
^ the Mb part : And by virtue of the agree-
^ Mints contained in certain articles bearing
' diUe the S8th day of April, in the year of our
* Lord 1(KM» made, or mentioned to have been
"Bade, between the said duke of the one part,
'lad tbesakl Henry earl of Peterfaorow on be-
* half of the said duchess ; and the said duchess
^ Thia cfauiae was added after the billwas
biaagbl into the House of Lords.
* of the other part, according to the tnte intent
* and meaning of the said Qumquepartite inden-
* ture and articles ; and also, during the joint
* lives of the said duke and duchess, shall and
< may enjoy 500/. per annum, by virtue of an
* indenture Quadrupartite, dated the 15th day
' of June, 1694, made, or mentioned to have
' been made, between the said duke of Norfolk
' of the first part, the said earl of Peterborow.
* and the said duchess of the second part, ^Vil-
* liam lord Lemster of the third part, and sir
*• John Mordant, knight and baronet, and WiU
' liam Longueville, esq. of the fourth part.
* And then, and in such case, the said duke of
' Norfolk, his heirs, executors, and administra-
< tors, is and are discharged of and from the
' payment of the said sum of 10,000/. any
* thing herein contained to the contrary there-
* of in anywise notwithstanding. But on pav-
*• ment of the said 10,000/. in manner aforesaid,
* she the said lady Mary shall be wholly barred
' andexcludeil from her said jointure, and of and
* from all other advantages out of the real and
< personal estate of the said duke, as aforesaid.'
Ordered, That the duchess of Norfolk may
have a copy of the said bill ; and that his grace
the duke of Norfolk shall be heard by his coun-
sel, to make good the allegations of his bill, on
Tuesday next ; and that the duchess may iMtve
counsel to attend at the same time, if she please*
February 17.
Upon reading the Petition of Mary duchess
of Norfolk, praying to be heard by her counsel
before any further proceedings be made on the
said bill, it is ordered that the duchess slialL be
heard by her counsel as desired, on Tuesday
next.
February 20.
After hearing counsel, upon the Petition of
the duchess of Norfolk, a^ also counsel fpr the
duke of Norfolk, the following order was madei
It is ordered. That this House will hear wit-
nesses for the duke of Norfolk, only to matter
of fuct, since the rejecting of the first bill, ex-
cept only Mr. Daniel Uermaiue, Mr. Himon
Briane alias de Brieune, Mrs. Anna- Maria
Brianc or de Bneone, Mrs. Judith Possette or
Persode, Mrs. Klii^nor Vancss, who are at li-
berty to give evidence to matters of fact before
that time, which were not then before the
House; and are hereby required to attend this
House, as witnesses on the behalf of his grace
tlie duke of Norfolk, to-morrow morniiiif. Also,
That to-morro%v this House will proceed to hear
counsel and witnesses for the duke of Norfolk,
to make gooil the allegations in his hill ; at
which time the duch<*ss of Norfolk's counsel
shall be present.
February 21.
The coun^l being called in, they for the
duke having opene<r the nature of their evj-
deuce, Mrs. Elianor Vanests was swum ; and
being asked some questions by) the duke's c«»uu-
sel, she appeared to be a Dutch woman, and
couU not well understand Eogliiih ; and an in*
lag MVBIIAMIIL
U.l9r«te«r
DcposinoM or £ixukml Va^eeu.
lV^ncary32.
sworn, dcpoMth as foDoweth,
EfianorV
Q. Do yoa know sir Jobn Germaiiie and the
orXortblk?— J. Ye«.
How loog ba«e you knows them? — Two
When did 700 first come acq;iiahited with
them ? — Sir Jobo GCTmoiae's sister hired me
for a oook-maid the sommer after the kisg^
came for En^^kmd.
la what laontb of thit year? — lo May.
Did ^ou life with ehbcr ot' them as a serrant
maid? — I Hred two months nith my lady
dacfaess, io sir Joho Germaine's bouse.
How loug* did you live io the house with
them? — ^Till Ibcy weoi lo Vaoxbal].
How loDg W3S ibe ducbe^ io the hiiuse be-
fiwe they went to VauxlMll ? — Two mociths.
Where was that boo&e? — Jost over Spring-
gardcfi.
It the time when the lady duchess lired with
fir John Germaioe, what compaay and 000-
▼enatioo did the>' keep with one another, and
in what manner f — Like man and wile.
Where was it the lady dncbcss lired when
first into EogloAd? — In sir John
Where M she ttve then?— The
Did yow g« widi thm in ^
! — ite went with the bdj 4
! Whose serrant was jon there?— UIt^
chem's.
How Umg did yoo flnre the lady dmhfli}
— ;iihe staid with her till she went to ISB^
How came yoB to lenve their scrvire?— Tliy
sent her away npoa the accmmi af iht hB
trial.
Who went with yon? — Mm. Smmm^
chambermaid to the bdy dochom; ani la
Nicholas, that was gcntleaaao to sir JehnGv-
Wbal is his name? — ^NichofaM
Who took care of yoor naasacn?— Ni
Hosier.
Whither was yoa ordered tog«?— TnBd*
laud, to the liagne: they paid har in MtB^
proflBised filty livres bwidrs.
Was any |<artof it paid? and hf wh— ?—
She recciv ed it ia four qnarttcta Ikom his lii*
ther PhiLp, at the Ha<«e.
Whose brother ?~&^ John Cwihii^iil^
ther. ..*
Who hired you when yo« came laSi||^irii ,
— Mr. Briane*s wiie. a%
What kin is she to sir J
His sisier ; and they proouacd, if 1
not go lor the doAcsa, she won
Holland heraeU; and take hm into kmr
Hare yon seen sir John <
nmhcmuibcd '"
r twice.
Qnd kii DuekeUfJir m Dhoree.
ng htd tbc lady doeben lived at MQI-
yoQ left her aemce?— Nine or ten
una yon to tea them in bed together?
MMTDone was suffered to come into
, the bed-chamber, but she and ano-
I, to Wing necessaries, as water to
tr hands, Md to clean the room,
ru see them at their undressing, when
t to bed ?-»She undressed them her-
nw them in bed.
n account how you two came to be
into the chamber, and what you saw
9he lielped them to bed, and saw them
together.
>u them next morning?*— Yes.
at occasion came yon into the oham-
* morning ? — 8he came with choco-
water to wash their hands,
n ever see Mr. Nicholas Hosier there ?
)e did the business that she did when
J not be present; he was valet de
e valet de chambre tosir John Ger-
to the duchess ? — He belonged to the
t Vauxhall, and sAerwards to sir John
be to sir John Oermaine befbre the
less went to Vauxhall, or not?— The
vas at Vanxhali when he came to sir
maioe.
ved with the duchess at Vauxhall ? —
Germaine's sister.
ired you?— Mrs. Briane, Mr. Briane's
lere no other relation of sir John Ger-
tiat lived there besides ? — Mrs. Judith.
Mrs. Judith? What is her name? —
not know.
cin was Mrs. Judith to sir John Ger-
-Hts sister.
i duchess use to go to no other place ?
>ut to the neighbouring gardens, to
you were at Mi II -bank, did you ever
jchess's father?— She hath been se-
!s at the duchess's father's, and the
less told her father and mother, that
gfht her from Holland; she dressed
les of meat by order of the duchess,
as the lady duchess's father ? Where
e?^He hved at Mill-bank, but cou!d
is name; the lord Peterl>oronfi^h, she
ooukl not think on it before now.
ihe hved with Germaine at the Cock-
here no other that lived with them at
?— Nobody.
' John Germaine's brother-in-law or
in the house, at any time ? — Yes ;
f came 6i«t to England they used to
hem? — Mr. Briane, and his wife,
n see any ef shr John Germaine's re-
i any time, in the room during the
the dnchess was in bed with him ?—
f Bmum and his wife,
r John Germaine in bed at that time
lnQhcMi?— Yea.
A. D. 1700. [HOD
Etianor Vamu cross-examined,
Q. Was it at Vauxhall that the lady dncfaeai
said, that Germaine was her brother ?—jI. Yes.
Did the duchess tell you, that sir John Qefr
maine was her brother ?-«-8he gave it cat among
the neighbours, but never toldiier so.
Waa you cookmaid ?-^She was hured for
cookmaid.
Did you continue to- act as cookmaid ?-^Yes,
at Vauxhall.
Was you at the Cockpit ?— 8he used to clean
the rooms, and nobody was snffefed to come
into the room but ihe, Mrs. Susannah, and
Nicholas.
Was there no other woman in the house but
you ? — Yes, Airs. Susannah.
Where did you ae^. sir John Germaine ani
the duchess in bed ?-^At VauxhalL
When came ^ou from Holland ?-*ilbout fire
or six weeks ago.
Where have you been since ?— She does not
know no place nor street in London*
How came you over? — About a year and
half sgo she met Nicholas at Amsterdam ; she
asked him how he did, and if he had got a
place. He answered, No ; but he believed he
should very soon have one in England.
Who sent for you, or brought you over fronii
Holland this last time? — She met Mr. Nicholaa
about a year ago, and said, she had a great
mind to go and live in England again ; and he
said, he would get a place for her.
Who sent for her?— Does not know.
When you came over, who paitl your pas-
sage, and first took care of you ? — Nicholas
hath given her what she spent since.
Who brought you to town ? And who fur-
nished you with money ? And where did you
Tand? what house did you first come to?—
She landed at Gravesend.
Who received her there; or, when she came
to town, brought her to any place to lodge at?
— Nicholas brought her to a place where she
was secure.
What place is it? — She does not know, she
never was in l/ondon.
Did you not live at Vauxhall, and at sir
John Germaine's house in the Cockpit? — She
was no further than those houses ; she means,
she was never in the city of London.
Where is the house she has been at these six
weeks ?-^be cannot tell whereabouts it b.
Waa you not sent for back from Holland te
be a witness?-— No, knew nothing of it till
about— -now about eight or nine weeks ago.
In what street is the house you bavebMii
at? — 1 cannot tell.
How long is it since you went into Holland,
since you left the duchess's service ? — About
eight years ago.
Did you never tell any body the occatkm of
vour going over ? — Yes, in Holland, but not
here.
To whom did you tell it ?— To a great many.
Know you any of those to be in England
that yon did tell it te ?— Dees net know $nj.
mVj n WILLIAM UL Prpeeedings iietwcen the DuJte o/N^fS [Wt
DiJ yDu ever dkcore^ this matter of v our
own Accord f or^ wat yna asked ta do it r^l
iBid, I would tell the truth if I irere asked.
Can you name thepersoii tbat askcA you f —
Mr. Ni^lKiloi.
Hmd you anv discourse about ihis matter
abotit eighi \f eet* ag^ P. — ^When 1 ^ked Mr.
KIcholii* it' be doutd get me a place m Ecig-
land, I l«y birn, I wauM say th«£ truth.
What disicoarsi* bad you witi* Mr. Nieholas
about it ? — I asked Mr. Nicbt^las, whether there
wa&aay daui^er of auy sucb tbiug f^Hc said,
lie kms^ uot b Itt^ of 1 1,
Did you ever d beaver that yoa were s^t out
out of the way iuio Holland ? — No,
Whether you and tbb geutieiiian that tn-
terurets have not talketl uioat of ibis maUer
belore yon came hltber ?■ — No.
>Vbo hnve you talked lo about this matter^
frtnee you c^nie into EofUud^ fie&ides Nicho-
las ?— Nobody.
Afe you a single woman, or a married wo-
maaf J-^ ibgle womaiu
The Duhdi Caumcl
Q» W&s it your business to look afler the
i^bamb^F, to keep the iloor constantly, or on
what «c^.asjon ? — A. I used to wash the docb-
esa^a cloatb^f and bria^ tbem to sir John O^r^
tnaine^s bousv, and kee|] the upper rooms f:\m^^
where sir John Germaine by.
Bid l^u^n g^ over with you into Ho] land,
and come back with you?— Mr. Nicholas
brought me into a room where she was kept,
and I stayed a wbilt with her*
Did Susan go with you, and ciime with you
agiiu r^Niebolas, und Snsan^ and [| were in a
room together, and Mi . Gei'maiiie eanit? evt^ry
night, win?n the bouse was broke up, und lohl
Ui what passed.
Did SuE^n go to Holland ^vitb you P Whe-
ther did you |ro before Nicholas^ or with him ?
— Sir John Germaine ordered Nicholas and she
to gomio Holland, and Niehobs went witli her,
(Si^mcd) Elian OR VikKEss,
DEPosmoNs op NrcnoiAS Hosier.
{Nkhotiit Hosier swom.)
Q. Whether he knows sir John Oermaine
and the duchess of" Norfolk ? — jL Yes, Sir, I
underslaiid, I know both^
How long have you been acquainted with sir
John Germaine, and upon what occasion P —
The ^t he camo io know him was in Sufiblk-
street.
Whether ever he was a sor^atit to him ? —
Yes ; I was a servant to htm there.
When was it von first came into sir John
Germalne^s service f — it was above Imlf a year
before king Jarne^ went away.
Did you live wilb sir Jabn or the duchess ?
With sir John Germaine.
Where did be dwell at that time ? — He bad
lodglDgsai ib£ Golden BaU.
Wai yoa with btm afkrwanfewlrabttt
at the Cockpit ?^Y^^ and llii^d m^^
at the Cockpit t'JO,
At thai time did you know the duciaid
Noriblk? — ^1 knew her, hecau&e lii^) \Mm
she was m.
Was there any latlv tbat b«ed wiib ib Jrii
Germaine at ibiS Cocfcpit f— IttbiiiiMilv
was Mrs. tiriane, ^r John Gcn&aiar'i
Was there any body «be iMd tP ll|p
there f— There was none lb ere bat ha ukt
Was there any other )ifterwiril«*-||
nboul two or tbretr mouths aiLer ht nj>\^
but r don't justly know how t^n^itiQ'PiHl
Who was there then ?— There wi4
hy name Mrs, JudUb Gennaine.
Do you know any thing about thai
of Norfolk at tiiat time ?— Yes,
IV hat eoaTemation bid sir John
and the dochess of Norfolk ?--^c wnj
bouae^ and they eat and drtak
tay together*
Where was that f — At sir John
bouAe, nejt the Cocknii.
How came you to know they bf
— ^Because 1 was his valet de cb«mlHfr
helped to uadr^s and pui him lo M.
Where was the ducbeiis at tbst tjiur f-
duchess waj sometimes a he J, anil
not, according as be eatne komt, tirti
How long was the ducbes* *rith
Germaine at ibe Cockpit F«^4^e atf<
Cockpit hefore I came tliere.
Whether be went from sir Joho GftiaiH
service, after be came to Li re there ?^
his service several times^
When was the first I iine he w€atf(^«
John Gennaine's service ?— The fint l»*^
left bis service waji in Suffolk street.
How long was it before he came tftli«*
him again J' — ^11 e came into his service i|i^
the sommer after thia present kiDg:^:*^^
Eoj^land.
VVbat time of the summer was \i?—oM
not justly kll that.
^VhttiifT the dncbess was tb^re '*to"*
came to ibf Cockpit, or not ?— Sfae va *P
before.
How long continued she there?— Aw *^
teeti days otter he came to sir John ^^f^
In what manner did sir John G^rmiiM*
ibe ducbess live tbi^re during tlioi# ^
days ?— He says he bath atreidy u|i»
tbat before, he used to undresa Ijjd» w* F
him a- bed together with the ducb^^
Where did the duchess Uve uftffiii*'*
from i>ir John Germaiuc's bouse -^-^
and dwelt at VauxbaU*
By what name did she go wheo *'**'*.
VouaibaU ?— frshe weui by tbeoaroeof^J*?
Beck man, _^.
Whether he went with ber, orcmot**"?
sir John Germobe's service?— He "**2
my lady duchess for some time, bv s*f J^f
Gei'maiue's order j he was sonietipi* *•*
one, and sometimes with the other;
oue paid him^ and sonieLimeatbe otbsf-
4
»}
mnd his DuchesSfJor a Difooroe.
A. D, 1700.
[laoi
'heth^ sir Jobn GerraaiDe went to Vaax-
? — He came there sometimes ; he has
I him there several nights.
^bether he stayed all night there ?— Some-
••
^li€tber he was alone, or any body waa
I bim? — There was somebody lay with
Im, upon his oath ?— Madam the duchess,
fem Beckman.
low know yoa tliat? — Because be un-
fed him when they lav together.
low often was that ? — He cannot justly say
' often, but it was several times.
f bat service was be in when he went out of
riaod, and upon what occasion ? — He left
John Germame's service at that time when
trial was depending between the duke and
duchess of Norfolk.
ly whose order did you leave that service ?
it desired leave.
9ow came you to leave that service at that
M? — Because be was afraid he should be
Kto speak the truth of what h% had seen .
ther any went with biro, and who went
■their service when he went? — There were
•servants of the duchess's,
ffhat was their names ? — One is called
ttBDab Barring ton, and the other Elianor
^hither did they go ? — He was ordered by
iobn Germaine to hire lodgrings for them,
ire they should be unknown and private,
^hat was the reason why they should be in
«le? — He knows* no other reason, but the
Bt^cooe before the parliament between the
e aed duchess of Norfolk ; he was obliged
ike the lodgings, because the wind was con-
y for tbem to go for Holland, and took
mte lodgings for tbem by the order of sir
n Germaine.
i^bat became of Susannah Barrington after
• f— She stayed about three weeks with
'• and then sir Jobn Germaine came and
bod lier back again, and where be carried
ifct does not know.
^liat became of Vaness, and yourself after-
vla ? — ^Wbeo the wind fkvonred, we passed
^ bat time of the year was it ? — It wa^ about
jter that be came into Holland.
▼ baltime be went from his service, and
k ordered to be private ?^It was about the
• of the trial.
Vbelber be batb any peper onder.sir Jobn
^maine's hand for his discharge ? We do
^sk it, but only to refresh bis memory.
^ |xaper was dated 8tb of February, 1692,
iKoiiiiig the vear to begin the first of Je-
tty.] Whether that was the time he left
^ocfacss'a service P — Yes, about six or eight
Mis after he went to sea.
▼here did you stay in the mean time ? — In
Viaories near the Tower.
^•e^ ceme you to stay there so long after
^^We out of service, before you went be-
^ «8e f-*Bccauie the wind was contrary.
Who went over with him ? What became
of Elianor Vaness ? — She went with him to
Holland.
Who bare her charges thither ? — Sir Jobn
Germaine gave bim seven guineas to pay for
the expences that he was at here, and to cross
theses.
How long after that he continued in Hol-
land, before he came into England ? — He did
not stay long in Holland, but went into his own
country.
How long was it before you returned to Eng-
land ?— The summer following.
Was be sent for over into England, and by
whom ? — Yes, sir John Germaine sent to him
often, by himself, and by bis brother in
Holland.
When be came over in the summer follow-
ing (in ninety-two) whose service did be come
to P — He returned to sir John Germaine.
Where did he live at that time ?— Where lie
lives at present, at the Cockpit.
Whether after he came back in the year 1699,
he observed any conversation between air Jobo
Germaine and the duchess P — Yes ; be says
he saw them come together at their house.
What more P — He again then saw tbem a-
bed together.
Where P — In the boose of sir Jobn Ger-
maine.
How ofU*n may that be? — He cannot justly
tell how often. '
Whether it was often or not P— No, be cannot
say very often.
When was the last time be ever saw tbem a-
bed together P — The last time he saw them a-
bed was not at the Cockpit.
Where then ? — It was, at the duchess's own
bouse, where as he believes, she lives still.
Whereabout in the town? — It was upon a
comer of the park, near my lord of Oifbrd'a.
How Ivuff since he saw them last e-bed to->-
getber P — He cannot justly tell the time, it
was about two or three months before be went,
away.
Did he mean the first, second, or third time P
— It was two or three months before he went
away the last time P
In what year did be go away the last time P
[Let him look upon any note he hath to refresh
his memory.] [Accordingly he looked upon
a paper.]— It is tiie S7tb of April, 1696.
Did you go away then the last time P — Yes,
he says that it was the last time be left hia
service.
How long before that did , yon see tbem a-
bed together? — He says it was about two
months and a half before he left the service.
When my lady duchess lived at Vaux-faallp
whether he can name any body else that waa a
servant in the house at that time P— Yes, there
was one Elianor Vaness.
What servant was abe P— She looked to the
kitchen.
Whether he baa seen her in the chamber
when the duchess waa a-bed there P— -Yet, very
oflen.
fB93] 12 WILLIAM IIL ProoetJLtgi hiW€H the Duie «/'A'ar^ (m
How ctme i»ic Ihal was cook-raatd to be m
tbe cbaiuber? — lie viy% he cannot tdl tbe
reason or whal busittetisi she liad there ; but
tbere she was for oa« tbio^ or otber, best
kDOWfi lo herself; he does not know.
Whether when tbe duchess was at Vaux-
lialU auy relations of sir Juhn Gemaiiic cutne
10 her there ? — \e%, they woiiM come and see
lier.
IV bo were tbey ? — Bilrs. Brienoe and Mrs,
Jutlitb ^ he soys be docs not remember that
Mrs* Brieooe lias lain tbere^ but Mrs. JudUb
has.
Where it was, mod n}>ou wbut occasion he
met with £lianor Vaoess after be carried her
over into Holland ? — ^I met ber in Amsterdam.
Whether be came over into England with
ber, and upon what occasion ? — I met her at
Amaterdam ; ami she aaked me ««'hat bueiness
1 bad there, whether 1 bud a moiter ; and 1
saidf no*
When was that ? — About a year and a lialf,
to bii reiiiembrance.
Wbetber lie came over witli ber (he last
tini6 ?_^Yea ; lie came over into En^Iiiud with
her in company^ uboutMX or seven wteks since.
Where has ^^he been ^inee be caincuilo Eng-
land ? — She w as in Un^g'mgs.
Wbeff f — He put ber into private lodgings,
that she should be secure.
Why did you put ber into private lodgings ?
— Because iie was afraid, in the circum^taucea
that he is now, that somebody might give them
msune affront, or do ibem ao injury ; and tbere-
Im h« tkiii^t it best to be in some place of
lemfily*
What particular reason had be why be should
take private lodgin|^s« or have that tear upon
htm ? — He says, that when he was last here,
iir John Germaine cyanic up one night in a
great pasjiiooi ami swore, and satd, somebody
would betrav him.
i desire lie might re|)eat that again P — Sir
John Germaine came tme night up stairs and
eaid, that NicbaUs, this rogue, would betray
fatin*
Who was lhat?--ne say* it *vss one
Nicholas Uusbett, iJial serted bim or both» be
cannot tell, but be wa.^ in bis st^rvice; that he
heard these M-ords, ami thai be tbou|:lii in these
cwcumstatices, tbe secur^iit \voy would be to
take pivate lodgin^^*
WLflt brought bim into England tbe last
thne ? Wbetber he wi&s spoke to to come, and
for what purpose?—He says, that about iwo
or tliree years ago be happened to meet with a
irieod, and be doii^ired him if be beard uf a guod
place for hine in Eughud, In let bim know of ilj
tor he would go ana serve there again.
Wb ether he was ^spoke to to come over, or
was Elianor Vaness spoke to^ and what was
Ihe occasion ? — My lord asked hi^m If be would
' aiMsk the truth, and do him any soirice *, and
whether he would briui^ this girl along with bim.
Who Wis it that spoke to hiinP^My lord
duke and my lord Howanl.
When was that f — It was about a year ago.
Wher« was be at that tJilie?«>l!ti«o|
London,
Did be go orer of hit own aeoanl, er sn^ |
sent into Holland ; who it was thit loll
over, Hod for what? — ttwasa&wgdfl
quaiiiUocc, that he denred, in c«ek»|
a place, to send for htm.
Who sent for Elianor TaR«9« ww^-
says, that af\er he had promised m; I
and lord Howard to speak tbe tnilhsf 1
knew, they deaired bim, that if hr r
Elianor Vaness, in desire her to oai
speak tbe truth of (%tiiit ibe knew.
How long atti t mett iiiil I
Vaness?— It is ui %« moofhii
met with her.
When was tbe ^rst time thit kf i
Elianor Vaueas ahi>at hrr eomiaff vm
the truth? — It is about a year ikie&
How long ia it slooe they rc»»|r«||
over ? — About twelve months.
Whether he was aci)uelfiiril wilk I
Vaness before he met with ber m T
Germaine'S service ?— I *
You say you went ir
service in Suffolk-strtL.
you came to bim aj'-ain he lived in 1
pit ; did you find Elianor Vansas (b
— He says he found her at the (
When he waited on sir Jobo
bis chamber, who watted on the
her chamber ? — ^Tbere was one 1
rington, and Elianor Vaness.
But who waited upon her in bsf (
— Susannah Bartington did, Id ^n
Wbetber be had seen any of sir Jii
maitie's relations in the chMober,
lady and sir Johu Germaioe were a4
ih»?r ? — Yes.
Name them. — He say*, he
eiitw HFIil Mr. Daniel Gtrmainr dierr
Did you ^ce Mrs. .'
not rcmenibtir that he
room while lb<?y wen: i
other liu hath seen wIm i
gclhtT, but at different timi^i..
Whether ever he bath seen the '
any other placR ? — H« has bcvu al i
with ber, and tlsjcwbere.
Where?— At m^ lord
in her own house.
€ros$ Ejtmnim^
I desire be may re<luoe tVu«a m n rti^fi*^^ 1
what linie be went out of
upon hU note asain. [He
uoie, nnd it waa oatcd Stn Februiin% H*>i
How long alter this went he *»ut «< &t
land ?— He wtfkit away as sooo as Iks •"■ |
was favourable.
Can he M .^^ Hessjfv**
some time l>< liecitai*iot«D^I
land about Eo^iier, I
W ben be told h'm gtiee the dukf n( ?lort" I
and lord Howartt he would ^- ■ *"*" *^ ^
fvbetber he Mas in any tern
Noy be was iu no service it IL^
297]
and his Duehett,/ttr a Divoree.
A. D. 170a
[IS88
How kmg had he been out of employ ? — He
BS none yet.
But how kmg had he been out of employ, or
KVf ice, before he make thia propoaal to the
like, or my lord Howard ?-^He says, he went
nriy about the 97th of June.
la it the aame year his paper sneaks of, that
e spake 10 my lord duke ?— No, it was not ;
m apake to my lord duke about twelve months
SO-
But how long had be been ont of ser?ice
'lien be spake to my tord duke ? IVben did
m leave sir John Gormaine the last time? — It
I about three years and half ago ; it will be
wur years in June next
Has he been in any service since that time ?
— N09 he has not.
How has he lived since then ? — He vByu he
■• something of his own in his own country,
yon which he may subsist some time.
I think he said, ne saw sir John Germaine
wA the duchess in bed together, in the house
rhere she now lives? — ^Yes.
Then I desire he will tell, if he knows any
W the dudiess's servants that were alK>ut her
t thai time ?^Yea, he does.
Then, that he \iill name them f^Henry
What is become of him ? — ^They told he was
lad ; and there was Susan Barrington.
1 iMre he will tell of some of the servants
kit lived wHh the duchess at that time, be-
idei that person that is dead, and the other
iHiieh is gone beyond sea, as they say ?
[Mr. Narthey answercMl, We do not say she
• few beyond sea.]— He does not know any
ttai, that he will tell what montli he saw
km in bed together ? — lie cannot remcml»cr
fee month, or the day ; but if they will avk
Uai the reason why he remembers it, he will
ID it them.
If you can come to any certainty about the
Sne of the year or the month ? — He cannot
tty the monUi, or any particular time.
i¥hat servant he saw in the house, or who
Itt him m ? — He had himself the key of the
iMrer room, and could come in when he pleased.
Whose servant was he at this time he speaks
if? Whether he was a secvaut to the duchess
•r to sir John (j«rinaine?^He was servant to
lir John Germaine.
He WHS saving he could tell a reason to fix
(betime, let hiui recollect himself of the time ?
^-*He cannot remerolier the time, but he came
hto the rofim to bring a clyster, and he was
fcftred to stay a httle till my lady duchess got
That he may be positive whether he had a
^tu the hiwer room of the duchess's house ?
^fle Bays he had a key of the door that
l^tcs into the park, and he could come into the
loose by it ; for it was the key of the house.
IVhat servant was it that brought him up,
>r that key only let him into the lower room ?
*Qometimes 8u8an BarriogtoD, and aometimes
tVDiy Keemar.
VOL. Xlll.
What room the lady dnehesa lay in ?-^It ia
a room that looks into the park.
It is not a ground room, I suppose ?^No, it
is up stairs.
llow many stories? — He cannot tell what
degree it was.
Being asked that question again upon the
reading his depositions, he sayslie cannot tell
how many atones ; but, if you please, he will
describe the coming into the room aa well as
he can.
Describe the coming into the room ? — ^That
aa you come upon theleA hand, there is a way
to go into the aucheas'a room ; when you have
paned the little chamber-door, you go into a
place full of china ; and, after that, you come
to the duchess's bed-chamber. On the other
aide, going up stairs, there is a little room,
where Husan told him she lay : and aftenvards
you come into a room where the chimney is,
aa he thinks, on the right hand, and he thinks
there are two windowa that look into the street,
he is not very certain ; and in the room upon
the left hand there is a door into a great room,
and firom that great room you can go into the
lady duchesa's room. It was so at that lime,
to the best of his remembrance.
How many rooms are there upon a floor? —
There are a matter of four rooma upon a floor.
Whetlier he has s]K>ke with any body that
he knows is aoqoninted with this house aincu
he was examined here before ? — He saya he
has spoke to nobody since, that has given him
any account of tlie house.
Whidi side of the park does the window of
my lady duchess's room look into ?— Towards
the pond where the brass statue is.
IJoes the bed chamber look towards the
brass statue ? — He durst not go to look out at
the winilow for fear of being discovered, but he
could see the water.
Whether he knows the Horse-guards? — Yea.
Whether he knows Ariington house? — Yes.
W' huther the windoi^ does look towarda Ar-
lington-house, or the Horsp-guards ?-*Hehatli
l>een there several times, but it was not his bu-
siness to go to the window; but when he
was in the rtioin he could see the water.
Whether he could tell which way the win-
dow' looked .^—He did not live in the house*
but went there sometimes upon niessages ; and
when he was there, it was not hia business to
go to the window, but he could see the water
when he was in the room.
Whether the window was on that side of the
little door that he came io, or on the other side ?
— Upon the left hand coming in. He says he
has explained himself as to toe entering in, and
he can say no more to it.
Was it one or tw o pair of stairs that the
duchess lay ?^He cannot be positive, whether
one or two pair of stairs.
Who hrouglit him up tliat time he broi^t
the clyster ?'-Su6an Uarrington.
Who told him at the Cock nit, it was the
duchesa of Norfolk? — Sir John Germainei her*
self, and the whole faouat told him ao.
40
I
12 WILLIAM in* FrmuMngi hetwuu the jy^ke o/NorJJlk
was ovt:r f— ^]So | as eoan as b« M
btm» he wrrji home to Mr. CenoiWi
WK«iIier be pretends to speak of t
time he mnv the tli^cht'ss In Mintfah
hause in Duke-filre«t, but when be en
the clyster ?— Y«Sj my loril, bt hw t
I^et him tell th« tinier aiKl ctttun
—He KiyH, he cannot ^ery well T«aif
limes, but lid had someliane* bticbea
briMg nud carry letters.
When was ihat time oribedyfltrl
about tiro months b^for€ be \th thctu
Was that the U^t time he tt^ tit
ther?— Tiiat wa» the last tirn*.
HtiV¥ Inng before that did h« Hi
get lierf-^ Long htlbrt that time^ta
houM'.
Hemytf he has $aen sir John G*ft
tFie duchess in bed together i^Uewli<
he ne?er see them in btd together it
bank ?— iTe has seeii tJjeio there tw
times d'bed together.
Wheo did your master order yon 1
a clyster? — He had order to coraeia
Mr Germaioe ailbe due best's ; md
Germaine coming to ihe diichc:»*t h
dertd him to bring Ihe ciy<ittjr nexta
At what time he came the next m
He bad orilur to brin^f it at 9 o'dd
brou|rh( it at the appointed honr« la^
the little room IV here Busan nai tj
called Jo.
He says, he waked for sir Joba I
by bis ordertit at ihe duehess's, in
late; ^¥hteh of the duche«is's sern
keep company with F-^-^lIe says, hei
very well it was Mr. Keemer.
Whether that lime that he tiw
maine and Ihe dnches« in bed l<
MtlU batik, if it was after the fit^t ti
sent nut of England, when the biU v
ing b^tbre the lords ? — It was aJlei
Whnt year did you see them a* be
at Mill-bank? — It was a day or two I
D'Atenant died. A day or two
died Mr. Germaine came to Hdl-
staid Lhere ahont eig'bt days.
Nicola I;
D£POSTnoNS OF WnxiAH Bi
February 25*
( William Bay/y svrom.)
Q. Do you know sir John GertDii
ducbe^^s of Norfolk?— j*. Y«-
IVat you &«;rvimi to sir Jobti Gci
Yea,
It] what capacity ?-— Three Te^iv
livery J and three yeftrs I was Ris stc
Wben did you first come to bte '
—Three weeks before the kios^ wis
Was there any conversation betv«i
Germaine aud the duchess of Noti
ye know that they hvedtogetbcff or
pany one with another ? — No ; I w
them lire togeiberi but teen lima J
JM he before that time koow the duchess ?
—No.
' Did you oarer see other women there be*
tides this lody f* — Yes.
Did you know all the rest that you saw
there f — No he did uot know th*?m alL
Whether he was not told the rest of the wo-
men were of gfreat quality too ?— He uev^r was
told sOf nor did he inform himsc^lf whelkicr
they Wiiic or no*
At Vauxball and at the Cock-pit^ I llnok, be '
Epake as if he tmdressed ^ir John Germaioe
and the duehess ; whether he uodre^ed ihem
both ?^Not the duchess.
What year was it thoy were at Vaushall f
— It Avas before he went io Ireland^ and afif r
he came from Ireiaod \ but he caunot precisely
tell the time.
Whether he has been in any service tinee
t^m* when he Idl sir John Germaiae's ?^No.
Whtlher when he nanie. about a year ajfo,
into England, there was application made to
him in order to mnke a discovery f or, whether
he offered of hiniself to make it ? — He never
did ofltT himself.
Who waii it that first asked bim the qnestion ?
It waf{ my lord Howard,
Where did you meet my lord Howard ? and
upon what ot'casion? — lie says, that it was
that person that he had atldressed hiuiself to,
to get hto) into service heiie, ttiat was the occa-
sion of their meetiDg-loir^tticr.
Did you know the lord Ho nurd before? — No.
Where was the placa they met?- He lulled
liim to his house.
M*^ lord, or that person ? — He says, that
f erson to which he addressed himself to get a
place, told him he bad found t>ne>
Name that person F^-Hinhardson.
Where does he Ii?e.^— I don't know^
W'ere you acquaioted with him befbre?^-^
Yes.
Where liad you been acquainted with bim?
—At London ; it is a woicau,
Whelher he can describe the room, or the
furniture of the roomt where this nobte lady
mud sir John Germaine were a- bed together,
where she lives now p — He cannot remember
nny things of the furniture.
Was it bung^ or wainscoted? — He says, he
cannot tell, and yet t^i^as there ol\eu.
Pray, who was the clytter for ? — For Mr.
Germaine.
Where waj it to he administered ? — A^bed.
Who was a-bcd?^ — My lady duchess wai
a^hed loo.
Waa it to be administered at the same time
as he atid the duchess were a- bed tos;elh£r ?^
No.
Was Hie duchess there? — He laid the sy-
linge to the fti^-side) till such time as the
duchess rose.
Apothecaries are exact in point of time in
making tlu-jr bills ? — He says^ I comptised the
dy ster myself; but he did not compose it at the
durhera'a house, but at Mr. Germainc^s.
Did yoaitay with air John Geriaaiiie till all
and his Duchessyfor a Divorce,
A. D. 1700.
[1308
€r, but neFer ?«w any incivility be-
w yoa them in company togrether ?
lem ID company in my master^s
r ago P«-Aboot fiFo years ego.
id your master thien lire P — He
'here he does now.
iich^ss of* Norfolk ever lie tliere ? —
)r knowledge.
B the time she usually came there?
ly in an afternoon.
n have you seen her there f<^Two
es.
lime did she use to come? and, at
id she use to go away P—She used
TO about four or five o'clock in the
nd might stay there about two or
ipon your oath, and pray tell whe-
»r saw them in beil together ? — By
M>d, I never saw them in bed toge-
lady ducliess use to come thither
unmaske<l?— She used to come
: put it oflf when she came into the
1 to come with her ? — ^There used
. Keemcr with her.
npany ? Did no other use to come
Bir John Germaine's house? — Yes,
ant, Mr. Carter.
in tlie room with them in sir John
house? — Mr. Keeroer staid com-
them all the time they dined, and
; the other servants and I were in
m to them ; and commonly, when
»sion, they would call Mr. Keemer.
e no other servant but Mr. Keemer
3ed tu call upon ? — Yes ; a gentle-
B. Susan' Harrington.
i seen her lately ? — No, not these
low if your master used to go to the
>use ?— Yes, I have heard so ; but
f so positively.
ever go with them to the duchess's
> ; but I have gone with them as far
e-ferry.
a the last time you saw them toge-
nnot tell ; I have been out of my
vice these four years.
X before you left your master's ser-
}iink it was that you saw them to-
cannot tell, but I think it might lie
year.
fone with his master as far as the
' ; pray then let him be asked where
Mster?— I left him at the Horse-
ert did your master give you when
n? — He ordered me to go home,
le bouse.
low whither your master was gone
lay judge he went to the duchess,
t iwear he went there.
^B Gennaine come hone to bed
that Bight ?-^Some nights he came, and some
he did not.
Did you carry deaths to him at any time ?•—
I have carriefl eloaths for him to Mr. Keemer,
the duchess's servant.
Where did Keemer live when yoa carried
eloaths to him ?— In a little street going to the
fiowfing-alley.
Who did he live withal I — He told me he
lived with tlie duchess ; but he was a house-
keefier, and had a house there.
Did you always carry eloaths to Mr. Keemer
for your master? — Sometimes I carried his
eloaths. to Mr. Keemer, and sometimes Mr.
Keemer came to me for them.
Did you apnrehend that your master was
theu at the duchess's, or at Mr. Keemer's? — I
cannot tell where he was : how can I tell ? I
answer as punctually as I can.
When Keemer came to you for deaths,
what account did he give you where your dias-
ter was ? — He gave no account.
Whether did you ever see the duchess and
your master together at any other place but his
own house? — Never.
When you carried the cluaths.to Keemer's,
did your master lie at home that night or not?
— Sometimes he lay at home, and sometimes
he did not : many times my master has been at
the duchess of Mazarine's from four o'clock
this day till twelve tlie next.
Repeat it again, for that is material.— -My
master has taken his chair at his own back-door
at four o'clock on a Saturday, and not com^
home till Sunday at twelve o'clock.
Where has your master been at that time,
when he staid out all night ? — At the duchess
of Mazarine's ; and when he lost his gold, he
has sent to me for more gold.
Did he ever send to you for any deaths whca
he was there?— Never.
Do ye know where he was when he sent to
you for eloaths? — No, indec^d.
Do ye Imow Nicholas Hosier? — Yes, 1 know
him very well ; I saw him here just now.
Did you know him when he waited on sir
John Germaine? — Yes, he succeeded me, aud
I succeeded him again.
Yon was footman when you went to sir John
Germaine : when was that ? and, what year
did you leave off your livery, and serve him as
his steward ? — I cannot tell.
He succeeded Hosier^ and Hosier succeeded
him : Fray let it be asked him, at what time he
came into his master's service, when he suc-
ceeded Hosier? — It was about the same time
that the trial was here before.
How long was it ere Hosier returned again
to serve sir John Germaine? — To the best of
my knowledge, it was three years ; for I re-
ceived and paid money for my master, and Ho-
sier was away all that time : Uoeier will not
deny it, if he were called in.
Yon say that you succeeded Hosier at the
time when the trial was here : How long be-
fore that time did you return to yonc master's
■erviee?— About three ireektbdere the king
him ihrm fmgs^ ud vore b» U? cry ; and he
wn §kaatd, mBkt Mt.Ummr went iwa)% to
t Uy vmi b» movey, l» be calerier for
I ttticm lui gM ; «o4 to Ibe best of
.mj tenvMK* " ^*M tfarae ycus bdbre Ni-
otiIm nifKtidiii flue inlQ.
Hmt IttQ^ WIS ii before be caoe beck tgaio
ia i0ve ait iob'j Genrane ?— Before I savr
Inoi M Bj MHlB^ hamt, and thai be look
biilye<iMMllr.HoaMrw%i^d be^
ftfc liat twaelhrtjani iMOleiilef yovir naater^s
wM naeolkctitty OMaaoty far tbal ; as I bate
m aaol i» b^ aaicdi, saw il it oome into ed v
aW, My Mrtii ariilfnfrnirhnliii into Hollafrd
vbaai a year be^te NacbelM did come over:
My onoaer told lae, belbre be ceme, that be
wmM wmi Ibr Niebolaa aniii, and tbil 1 and
Kifliaiftiibanii hM« ibe dnqge of hi« Uomt:,
KkMw oaae e«er, and we bad the pley at
mm 0Km bouse : NkbolBs aUid there aooie
iiM^Wlbadid D«l bice bia b<iaioe«s« and fio he
i^eftt awty ac«^ii, beeniae be eoold uot hate
•illMM^.
ilbal «te time did Ntefaolaa eooM tnlo
fiwlbi^ lihr dhe trial «ras before tbia Hooae P
«— I caaoal raaalie wao.
Had y^« ao eeflitaiaof teate, or diacfaarge,
vrbea yim M yiMir iiMmat*aaeryice ?— No ; my
iHt'g *aa ao biodt Ibal be brangbt me im-
luiiianly iato tW eatctae* aa tooo aa I vaa out
«fbia«rfiea.
WfUfmm J3d^ero«a-evaiiiiiicd*
Q. Wbeti ye« cenied the cbjaUis to &ir John
4t«nBaiiae% w»s it the time ivheo you vt ore
km ia«y f-^d* 1 carried ae doathjf to him
wbco I vara bm lifcry.
Had j^ mm dbaaurac with Uie dacheai^s
Ji^iftta tince tialuidiiy Mgbt ?^No, I buve not
Men Ibnit, aer do aei bcie«p ibaia*
He nm be saw the dnebeaa af Norfolk at
Iba Coebfiil* ai air John Germatiie'a bouse
^bero be sow dwelle : l*ray, recolteeC your-
■dl^ thei yeu niAy ba |ioattre aa to llie tinie ? —
I taAiiei rveel^ yoa as to i\nf year, tt is so long
^ ifik i I bfliefe it k about Ave ycors ago.
Cteyoiibe|ioailireth«til is not moref— >To
^ibeheaiof my knowledtfe, it was about fire
€ta you be to fur iM?rtaiii, thet you cao sey
[ M f^^ not mnre f — I c^uoot SMrear it wia
ioei^ but t b(4icTo it may be fire yeera, more
Ymi «ftir i^tt saw her two or three ttmea
bare t Was »i nil in one yeer^ near the same
Ine or m<>iilh f Cmi you mluce it to aov eer-
ifcitjf *— I belitfroit iinght be in t^ummcrl
Ad \n eoe sutnaier ?— Ves, I believe, all in
I { to till.* liesi tif tiiy koowW^e there itas
Isi a wrnter between tlie time that 1 saw her
taadlasi*
i Did jmi know the duobcaa of Norfolk be
ter'a homie» and took bet to br 1^Mb4
Norfolk r->I did Dol know berlidiiiiiiU
fi' as here.
Did yoii koow her uiy time lAtr (telii
before the time you saw her iaitr JoluQe.
maioe's house? — I waa not santbi an
the, only aa I bad it froiii Sir. Kifoe.
Then yoa do not nodatike «f jwai
knowledj^ to say that It was tbeT-^l Ml
swear Ibat il wjis she, but aa Mr. I««s4
one : I do not kaow wbetbe? I iMilp*
her DOW or not, it ia ao h»ckg ainof I o« WJ
believe it is fire years, ir*">' nu^r^
Did von tee ber befo- ^Q aeka
at sir John Gcradaa'i ' lliefinlMl
they told me it was sbo^ I nwlhiriilaia^
in the Pallmall, with two other ^i^ikmB
With her, a Little before thelml en laiil
followed the coBcb» aod lhedoclii«
some lady's house m Du«er Ktrtct, id^
told me tlie ilticbess wax ihe 6(ii itvaMM
went uiit ; this is the first time tint tift
her, that I know of, till such time n
totd me it was she.
W briber do you know Nicholi»M
bim Tery well.
Can you tell how toog it ia moot hitfl
last into Kngtand?— No* he has bfus hatP
or three bmes in England aince i kft ^
toaster.
How looff l>efore this exaroinstion o* w
him* or spoke with hitu f-^I did not in ^
abore these three years.
How lon^ before you came hither m^
nees did yoo sea bim f**I bare aot "^
these *
1
5
ttitnc tUtI yo^ myi \ms m ^^yox
se three yeart till I came hither !»»•* |
s, and did ndroire to see bi9 bnt, ^ I
man that hail got his bread ondcr hti^
should appear here againat hinH it n n^ ^
gratefol a thio£p. - am
Bow came it yoo bad an mnA mv^^rj
to follow the duchess's eoach f«*l bad
to satisfy my own humour^
Do ye koow bow NicbolM bfd i
was out of bis master's serrice f^^Ne; W-
saw bim^ not had any a^^count of bill
nor hare seen him the^ throe yaan liitt I
Did you know wh«^n Nicholas aad
V^aness went out of Euiflaml ? — No, I
knew when they went« tior when tbaf f
Do oot you know what busiiiiaa bt 1
of Kogtand ahtiut, tiie time you 1
— 1 know oot the busincHi be went e«rt4
laod upon.
Did he at any tin>e tell yon ba ina I
away to hide himseJf from €OifWB^ faitf"
No, I heard not one word froia him ail
of his parting.
Wliat raason had you to aay
sight of Hoaier^ that he was ua^raldy
eomirig' hither? — 1 shauki ibtok my
gnuelul to eat a gentJeinaoS braad see)
anil do him all the aitite and malioa 1 i
Repeat those wordsf — 1 slioubl tbiak i
f ery imgraterul to prosectite { if i
any harm lo a master ibai i bad
«Qaua^Y«arK I abocikl iUakmy^dti
K
md iii Diehttttfir a Intone,
him tinak of hiouelf what he
A. Di 1700.
rx309
lome •tber w«inls.— 'For any thing
•piteand niaiioe.
I ^oa lire When you followed th«
icb? — At Mr. Germaine's.
if a wUnen, and ao is Hosier ; let
lioodwlt' what he meana, and where-
ly differenee between him and Ho-
1 are witiijeMea?— I say, I should
▼ery ungrateful, if I would do any
in whoM bread I did eat ao Jong,
iQ muoli money under him.
a does Hosier do, being a witoesa
ncheaa of Norfolk? What harm ia
hn Germamel^l do:n|t know.
:on it uugri^ul to sp^ the truth
lice of a master?— No, I would
untruth for all the masters in the
there any fault more in Heaicff
-—1 know not.
lid Elianor Vanesa live with sir
ae when you li?ed there? — I know
s.
in that was here as a witness ?—
d there.
) went she away from sir John
lerfice? — ( know not, I cannot
(Signed) IVoxUm Bayly.
March 5.
d witness being called in for the
irfolk (and the Duke's oouniel be-
he examination of the witnesses,
ay in short- hand and iranscribedf
hem, and subscribed, via.
AWRswoRTH swom, deposed as
fultoweth :
know Elianor Vaness? And did
3 duchess of Norfolk's family ? —
live with the duchess about Oo-
md left her in September, about
biu two months : £lianor Vaness
icn I lived there, and was cook-
he leave the duchess's service? —
inning of January, or the latter
ber, 1691.
casion went she away ? — She waa
to tlie best of my remembrance,
»mpany with Dutchmen,
led she any other office but in the
uul she access to tlie duchess's
ever; she waa not allowed to
ler tlian the first floor : ahe used
Dom next the street, one pair of
doer, and the back park>ur even
was not suffered to come into the
nber.
I upon the docbesa in ber eham-
I Knight; she was constantly in
and used to warm lier
\ wu allowed to come
ilVa
no hi|[ber than the firet floor ; expUm thai?—
The kitchen ia under-ground backward; thai
room Vanesa cleaned waa aven with the atraet,
aground-room; the lanndry*maid doaad Hit
next pair of stairs.
Wnat was the lanndty-aiaid'a name ?— Su-
san ; she is dead.
Do you know how long ?-^Nc
Did you ever see Vaness in the dncheai't
chamber? — ^Never in my life; 1 never heard
ahe was alk>wed to come there.
tlow long is it since you lived with thif
duchess ?— About aix er 9eveo yei^ or vfry
pear it.
Do you remember the bill that waa brought
into parliament againat the duchcaa, while you
lived there?—! came to the dochesa the Oc-.
tober before that bQl waa brought in.
Was Vaneaa turned wey bSfore that ?— Slie
was gone a month or thereabouts before that.
Do ye remember the month ? — ^To the best
of my remembrance, it was about the latter
end or December, or the beginning of January.
Waa there any atir about the Dutch foel«
soldiera haunting Vaneas? — 1 never saw any,
but have heard the servanta aay they did.
Can you say what time it was? Whether
before or after the bill .^—Before I heard anjr
thingof the bill she was gone.
Crott-eMminctf.
Where do y ou^ Kve now ?-«.Mrith air Thenas
Bamardiston.
What atation were yon in when yoo Uved
with the duchess?— A footman.
Do you know Hosier then ?-i-fNA.
Where did the ducbesa live, when you came
first to her? — Upon the row between the Horse-
ferry aud Mill- bank.
Ilow long did you live there ?-9A fortnight
or thereabouta ; not much more.
Do you know where ahe lived before ?vinNe.
Do you koow sir John Germaine ? and, on tht
oath you have taken, did he ever come to the
duchesa*8 houae while you lived with her ?-*|
never aaw him in the house ; 1 never saw any
unhandsome thing by the dnchesa all the tinf
I lived with her.
Dklyou never see sir John Germaine with
her ?— Nq, never ; and I had the privilege of
the first floor and the second floor, and helped
to rub the rooma, and sometimes I rubbed the
hidffing-room.
Had you the privilege of goinff up staiia in
the morning ?— No, it waa one Peacock thif
rubbed thi* room above stairs.
Did yon know Vaness ? Waa she servaal t#
the duchess when you lived there?— Yaa, ahg
was.
Can you be peaitive aa to the time ef ber
going awa^ ?^Aa near as I can tell, it waa in
the beginning of January, 1693. I eame Ul
the O^ober Before, and ahe went away the
January followmg.
Were you by, when she waa discharged ?-v
No*
Who paid her ber w^ae ?««-I OMMi UlL
130'^}
13"WILLIAM 111.
Pnceedingi hetmen the DvleqfSorfSi
m
Did you uerer iee Vatifss in llie duchass'i
Did yoti atleod at die ducUciii's chamber iti
tarn*.
DiJ you tiever attend in bf r chatolier when
olie wag ti»bed ^^-No.
WtiQ was it or her women thit attended in
licr ctiaifiber ? — Suiaa ^ — , Frances Knight,
«nd ^utftn BarriD^toD^
WlieiitUd you seeSuKSH Bttriugloii last ? —
Ahtrpt iWe ye&rs ago.
Did ^kt coQilontly attend in the daebfta^a
ebamberr-'Slieand Mn> Kulgbi carried cHmb
^aslanOv l^ warm ihe bed.
Hrtw t>td w&i yoii wUeti ym Jived wiUi tlie
4udH!is?^Aboiii f'if iitcen years dd»
How old are yoti now ?-^I lltiok about S7.
* Thomas ilAWK^woftrit.
. JosK PEACOCK BwOTDf deposetb as fotbwelb ;
Q. Did you life witb tbe doche&s of Nor-
folk in lG9i? — J. It is *ix years since 1 letl
her leiricet last January or tbereabouts ; 1 lir^
«d two years and a half with her» or there-
aboula ; 1 came in ^u^ustf and staid tlU Janu-
ary two years tbllowingi or tbareabouts.
Dili you lire witb the duebe$&, when tbe
first trial, tm they call it, c«roe ^n in uarlm-
ment f-^Ves, I lived with her before ana aAier«
Did you know VaLiess? — 1 knew one whose
Bam« W119 ei'ted Lctia.
What was her bustneas? — Below stairs in
tbe kitchen ; I ni^ver saw her in any other
room, but ihe eutci' room next to the street, anil
1 waf thtre, all the while sht! w as there^ and
afler ibe was gone.
Did you ever see her in the ducbF^s'ft bed-
cbaniheri' — No; the work she was employed
about was dirty work ; t never saw her clean,
but nasty r and could not eat the Tictuab of her
dressing*
Was 3'ou there befoi"** VanessP^-Yes, I was
in the house some time before her gfrace ciime
(Iter, to help the upholdcri and to carry look-
tu^-|r I assets and »taudi!«
nTien did slit- oiHiie over ?— ^he came to
B1ill<h:ink, but 1 know not when she eauie
over I ftJy lady Peterboroug^h ordered me tu do
what I did.
Was yon servant there trt the duchess before
she carac over ?^l nevtfr saw my lady duchess
before she came tliere, except some year^ be-
fore at Drayton, when h^ hvcd witb her.
Who hired you ? — I came there by the lady
Fttf^rb Droughts order, and had my vietuaTs ut
my lord Pcterhomu|;^h^s.
IVho hired you ?— I was not hired at all.
How long did you live at Mill -bank P— T
lit ed about two yearss and a quarter, or some-
what morOp
What was yonr nropi^r bumness, when you
lived with the duchess ? — When the ducliess
went abroad, 1 weni with the coach ; and
when she supped or dioed at bomej 1 kid the
fi«tb, forks and s^oo^t
X
Mi
I
Did you ever wart above itifliMi,|
have waited abo^e aiiair^.
Who waited uiioii tbe dncbeis in Udm-
ber f_Fr«at^fl kiiig'bt, one !;§u3ut, tads
8u!^nnab.
L'pon your oatli, did yon "everMvlbftvtw,
Helena, ^ into the ditchei^'j l)d-r^rii*«*
I never once saw her there ull [he m \
staid there ; 1 rubbed the bed-chtin^j^ftti
long rubbing-brush ; I nercr aw imtm,
nor aboro ttairs.
Do you know at what time ft vn t^on
tu hf e witb my lady duehmf-Ys; K
c^me whib 1 was there.
Did yon liv^witb the ducbetiWS^it
canae to Millbank ?=-! hv«i fit iht otW fits
with the duchess j but &i Miilboiik, mi
Dmyton.
Uki you know how Vaness left tbe doAa^
service; and why .^ — Yes, upon crtinpluill
disorders, and her ill dressing ibeitfinii
What disorders ?^There were omu ami
the door tn enquire tor her, twice, of ram
Did yon sec the fellows ?— Y^ 1 w*
felbwt ; they came to the door in the M4
the eveiiioij/and I aoqusitited tbe duel
itf and told ht^r grace, I did nfat Ihietk;
lor bef bouse^ because I bad tbt;
silver spotins and forks.
W' hat Bort of men were they F—Oo««fi
appeared to be a foulkaoldier in a Mucfl*:
lu what miinner was she put i^^t^ffkl]
tbe liousel' — Upon these com{4Aiau,
duchess said she would turn her awty.
Did you hear tbe duchess say so f^YtL
Was that before the trial at the iMtik' l^^*^
or alter 1^- — To the b«s»t ot n>v rL'inenilmiKf.i
WHS lietbre tbe t rial » the latter end ot UMt«^i
or the beginning of January, bnl t cauDOtkl '
positive; 1 think it was the litter tdi
December.
Did ihe go away befbre the trial, or ncnf'
1 think, belore the trial, bui 1 am out i'm'
Yet, at Ibe time of the trial, 1 rf^aufnibcTt*
ther cook.
Are you sure of that f — Yes, I am snrcrflf
it was the cuachuian^fi wile, one Gosljtiis*.
Do yon know Rauj^eur or >Jicoh ?— Nfl.
Y^o u 1 i ved a t M i 1 1 ha n k t%i o \ ea ns ; do ft
know nn Mich tnan? — t never heard hissiP
before; 1 had no acipiaintaoce with biai,li
ever saw bJna about house.
Q* Where do you li?e now? — .1. Ne
Huntingdon; I board in a house ibete.
How long have you heeu out of serrke?-
Ever since 1 let^ my lady duchess.
How do you live then f — ^1 boardinabiKW
I follow no employment, but liva on my um
except to teach children, two, three or fnur^*
ot'cliarity.
When eauie you to the duchess's scvti
first ?— I served tier about ten or twelve vet
ago; hut I cannot remember the predsetiiB
jt is so long Evince.
Mow long did you M?e with b^ jihrnf^
\
02
end his DuehesSffar a Divorce.
A. D. 1700.
[ISIO
i whb her about half a year at Drayton in'
tliamptonthire ; I went about November,
staid to Lady -day following.
low long was it before you came to lire
I her the last time? — I cannot tell.
Tou aay you came to live with her about two
ra ana a'qoarter ; what time was that? —
lODOt tell, but that may be easily found ; I
d with her about six years ago, or thm-
nU.
low long did yon lea^e the duchess, after
hearing came on in this noble house ? — I
not know ; it was about a year and three
irtcrs, or two years, 1 cannot be positif e.
•Vas it after the trial began .^— Yes, I think
trial began in January, and it was a year
r it began.
^nnut jf'on be positive what time yon came
life with the duchess? — I came about
^t to Mill-bank, but the duchess was not
ne then ; but the Clctober following my lady
heas came.
\\ here did the duchess live then ?— I do not
»w, I was at the lady Peterborough'a) I
ped her aenrants to carry Uiings, and to get
ipreadv.
DM youlcnow where the duchess lived then ?
!fo ; some said she livctl in Flanders, others
Rollaod, and some in France.
IVas you never at Vauxhall while the
cbeaa lived there?— I was never there while
tduchesi lived there, if she did live there.
Wt» you never there where she did live ?— -
hen nobody lived there I have seen the house
iCK ttaey said she did live.
How ioDg ago is tbat?->I know not how
aago, but it was in the sununer-time.
m caoie you to take notice of that house
m than the rest of the houses in Vaiixhall ?
ho waa it told yon the duchess lived there?
1 think it Was one that was .-— — .^
You aai«i the duchess went sometimes by
Iter ; dkl you go along with her at that time*?
Yci, 1 did, with some other company.
IVai you ever sent to the house, to fetch
•ds from thence ? — No.
Who went with you, when you went with
e duchess there ?— One Mrs. Boufflen, and
m or three other ladies.
Do ^-ou know sir John Germaine ? — I never
ivhun but in his coach, as he was going
big the street ; I never saw him in any house,
'lay otiier place, sitting or going, but in his
Mch.
Was you never at his house ? — I never was
bis bouse, nor any place were he lived.
You aay you were at the duchess's chamber
rub the room ?~Yes, 1 was.
Did you not see Vaness there?— No.'
Can you take it uiion your oath that you
te aaw her there r — No, I never saw her
*c ; but 1 saw Susan Harrington there.
WbM service did Siiisan Barrington do there ?
tee helped to dress and undress her grace,
I to mend liaen, as I think.
^bca aaw you her last ?— It was about the
» IQih, or 1 1th of August laati ftt the George-
in Huntingdop.
Do you know where she lived then t — She
was at Huntingdon then, and came with the
lady duchess to take a stage-coach for London ;
she was at the George-inn in Huntingdon^!
think, about August last.
You say you lived at the duchess's house
at Mill- bank, before the duchess came thither :
did Vaness come with her, or was she hired
after ? — I think she came with the duchess.
Do you know whence the duchess came,
whpn she came there ? — As I have heard, sho
came from Vaulhall : when my lady duchess
went thither by water the summer after, I waa
told, that my lady lived at such a house in
Yauxhall.
Ditl not you know that my lady duchess
lived at Vaux-hall?— I never knew my lady
duchess till she lived at Millrbank.
What account had you at the duchess's
house where she was then? — People said she
was in Flanders.
Do you know when Vaness came to live with
the duchess ? — I believe she came to live whh
the duchess at Mill- bank.
Do you know when she was discharged out
of her service ?— I think it was the latter end of
December, or the beginning of January ; I
think so, but I doa't speak positively.
Was yon by when her wages were paid ? —
No.
Have you ever seen her since ? — No, I nerer
saw herVrom that hour to this.
Where have you lived since you left the
lady duchess's service, and how?- have yon
any estate ? — I have a small matter to Uve on ;
] live near Huntingdon, I was bom near there ;
it is my native place ; I have lived there about
liiur or five years, or within seven miles of thai
[ilari;, or thereabouts.
Did Vaness dress the duchess's dinner, when
she lived there ; for it seems she was not good
enough to serve you ? — Yes, she did dreu the
duchess's dinner, hut I did not care to eat
victuals of her dressing.
When did you first complain to tlie duchess,
that men followed Vaness ? or that you appre-
hended danger by her being there?— I cannot
tell.
Was she dischar^ immediately after that P
— I think she was discharged immediately after
You say there were some other ladies that
went with the duchess to Vauxhall ; can you
name them ? — Mrs. Marsluil, and some others ;
but 1 cannot be positive.
Did you know Mrs. Briane ?— No, I never
heard her name before.
Did the duchess eat always at Peterborough
house, or Mill- bank- house, as you call it? —
Sometimes she eat abroad, and sometimes at
home.
Who dressed her victuals when she eat at
home ? — Lena.
What do you mean by Mill-bank-house?— •
Peterborough- house.
Who did you hear say the duchess lived at
that house at Vauxhall ?— The duchi» was
w^
^m
ISII] 12 WILLIAM lU. Prnctedingi hetmen the Zhde &fNorfi
Did you kww Thomas H>«k
frUow M!r¥atit ? — Y^, he eamc i
came la MiJMjank ; Mr. P««<70elt
Ihey were both AerrmDts together*
g^tig by water^ anil told tlie Udies then, tliat
that waa ibe Wnane she hskd Ijf od iit, at Vaux-
Itall \ and \«atking in the garden of the said
|u»tm?t told them m. Jonas Peacock.
Feuhces Kj«)iq[iT Bwora, deposeth as fuUo weth :
£2: How bn£ have you lived la the duch^ns
of NoH 61 k 's f am iiy ?— 4. Tff euty tevcti y ear$ ^
or iifiwnrds.
With whoTQ did you live all that ttme? —
IVitii the bdy duchess's father, the kdy Fe-
Urborc^ughi and the duchess.
Did you hre with the ditches^ when the
lifed at Atin-h«i]V?^Y«^p t hved with her at
her fii^t coming ther«,
H&reyoit b^ with her ever since?— Y*a,
Hid you know V^ness in the duchess'^-s family
at Aldl-Uank, and what etnpioy had the there P
— Ye«j I know her very well j she w«a in the
Jiitcheti,
Did yon use to he in I ho duchess'* hed-
ch&tnber, and shout her person f — Yes, I was
the first in the mom tog there^ and tbt last at
uight, con$taii(ly>
Did you know Ehanor Vaneas th«re ; and
4id she die to eovue into the duche«&*s eh^m*
bet P— She nefcr came then**
Where uaed she ta emplo^f herstlff^-In the
liitchea.
Waa she well enough iit eloathtt cleanly
eotnigi), and At to conie inta th« duche««'a
chaniUer ? — No, the was not,
IVhat time went she aw»y ; mid tijwn what
•coonnt?— My lady put her away, betmuse
■ohliers came and asked for her^ and sent for her
to ale^hou^es about t£!n o'clock at itig^ht. I
went up one niorntng, and complained of her to
toy lady duchess, and told her that the told icrs
haunteu her, asked for litir, and sent for Iter to
Ale-^ houses at ten o'clock at night : and my lady
duchefs said, the wodld not ki^p a servant that
IteptililMora,
- Was this b«lore the trial? — Yea; my lady
put her away upon my speakings this.
Do you know why ahe was put aivay ?^—
Y^en, for ha dog ioldiera haunt her compDny
Consider well what you wiy F — \ ea, i
lords \ I apeak what my conscience tells me
Here I am before the hpihy I must speak truth.
How far <^I^ you recalled yourteif, if it was
before the trial, or not, that she was put away ?
• — Ft was before the trial.
How long ? — ^T catinot remember ; I think it
was about a quarter of a year ; 1 cannot tell
exactly, but it was near upon.
Row tfe«r was you to the do chefs f What
was your employ meat? — I hdped taget her to
bed f as her chamber-maid*
Did £haiior Vanets never undresi herP —
^o^ uefer id this world.
Did YOU Dever know her cotne into the
^ehess a chamber ? — NctcT; never* Oh, Be !
never inde^«
Do you know Nicholai Hosier P — I don't
kaow fiim : there were many asked for Mr,
' Keetuer i but I diil not knoif ibem, for he has
tnany aciinaiiitaiice.
my
FrantefKni^ht crostt-^mi
Ywi Bay you lived twenty -sef^
upwards with the duc^h^w ami
do you live with the tJudiess stilt:
How Jong 13 it since you hi
mother ?^ After the ducliess wg
came to live with her aiad my Ion
Have you been in her service i
After the duke parted with my '
where did slie go to live f — She
bauk, and no where ebe that I kn
Came you to live with her n
marriage? and have you liv«d i
since ? and did she ever Hv« at ^
never lived with her at VauithalL
Then you have not lived with hi
— I have lived with her ever sit
tak&ti my oath, and us near as 1 en
Where did the duchess Hve hel
to Mill hank ?--S^he lived at Vaux
Did not you live with her tin
broke my le^, and wmb brought tf> I
and staiil ih^e a tw^lvemouth ; fi|
my surgeon, he can tell it« I g
speiik the trtith.
Do not >ie anf^. — No»
Did you Gontjoue wah the dm
broke your l^ f— Ves^ and wha
leg-, I went home to her mother's*
When left you the duchess atle
with tuy lord duke f — I left her at
Do you know the question ih
When did you leave the iluclif
p rte«l w it U t lie d uke F — 1 k now q
tion as you ask« I speak the trm
1 can.
Where did my lady duchess g<
lefl her ? — I weut away lame^ ajid
no tervice.
W lie re did you come In my I
apin» when you were well ? — kt i
Was you et er with her at Yansl
not there, becauie 1 was lame.
Was you ever at VauxhallF^
broke my leg*
Was you ever at Vaurhalf, or
yoii I was lame*
Was )'ou ever at Vaiixl»ll at m
tell you I was lame; I give yo
your f|uestif>n. I tell these noUi
every word 1 i»peak is truth*
But you are swore to speak (he <
— 1 »pe&k the truth* Why »hatM
Was you ever with the ducbiMi
— I was not able lo be there willi M
Was you there with her, or irt|f<
able to go thither*
Was you neve? there F—1
thither.
Wns yon never there,
chess?-* No, I never
lite, bat «l Mill-bftDk aad ^
^f— IwiiJ
ne. Of mi,i
«as at Ta«l
and hit DuAeUtfor a Divorce.
A. IX 1700.
r4314
am in thiaioterlinettioii was altered,
^ over, her examinatioD, Yea, I ha?e
but I did not atav there.]
erer there with the duchess, or not P
there : I tell you I was nut there,
nerer there with the dnchess at any
1 fell von I was lame : 1 was nef er
le dncness.
IS the duchess before she came to
-Tliat I cannot tell.
as she when you broke your le^; ?
at Blill-hanlc with her mother.
d you find her, when you came
onnd her at her motlier*8.
>n tell where she >ras in the mean
noTer told by any of the family
as at that time?— No.
IS come to the duchess when she
bank?— Yes.
f did she live with her aAer?— I
but a short time,
now Susannah Barrington ?— Yes.
you see her hst? — ^Abont three
i in the duchess's service still ?— 1
the truth : she received a letter
rs, acquainting her that her mother
he If as very much afflicted with it:
e duchess came in, 1 told her iprace
ad received a letter that her mother
id I did desire my Udy to ^^ive her
> Holland ; and she is there.
30 tlie letter ? — 1 saw it.
m her mother, or from her sister ?
IS from her sister, that her mother
una Harrington in the duchess's
. this bill was depending ?— No.
is it since you received that letter ?
three weeks ago.
is it since you went ? — ^A fortnight
» her any time these three weeks P
Fc with her in the house, and did
her?— She has been gone about a
low Mrs. Judith ? — No.
now Mrs. Briane? — I have heard
it am not acquainted with her.
:av discourse with Vaness, when
Aill-bank to live with the duchess?
r liked her discourse.
Ter hear the duchess say that she
;haU?— No.
low sir John Germaine? — I know
er. see him at the duchess's?'— No.
never see him at Mill- bank, or at
re ?— No, my lords, never.
■ come along with the duchess
le to Mill-hank ? or was she hired
JO? — She came afler her return
) went she away ?— I cannot tell
III.
the day; that is a hard question. She wrnt
away, on m v speaking to the duchess, that she
was haunted with bad company.
Did not she dress the dmnor when the
duchess dined at home? — Yes ; but she i^ever
dined at home but very seldom.
Cannot you tell when Vaness went away ?
—No.
Did you know Nicholas Hosier? — ^No;
I know no such roan. There were m^ny
people came to Keemer, lord's servants and
others ; I do not know such people.
You have heard that the duchess lived at
Vauxhall.?-.Yes.
At what time did she live there ?— I cannd
tell von ; I was sick iu bed.
You may recollect about what time was it.
^-I was fame in March, this month: I cannot
tell what year.
Do you know what house she lived in P-*
Yes ; It was one sir Thomas Grosfenor's, at
Mill.bank.
I ask you what honse she lived at at Vanz«
hall ? — I know not.
How came you to know the duchess lived
at Vauxhall ?— You ask what I cannot tell you.
You dare not tell.*- Yes, I will tell the truth
before all the Honse of Lords.
You said she lived at Vauxhall.'— No, I
never said it
Whence came the duchess, when she came
to Mill- bank? — Shecamo from the place she
did ; I did not ask her the question ; I durst
not ^e so bold.
Cannot you tell when she came to Mill-
bank? nor from what place she came? — I
cannot tell the day when she came. I do not
ask from what place people come.
When did ^ou know sir John Germaine
first?— I saw him first with my lord duk^
there, at his house in the scjuare.
Did you never know him keep company
with the duchess.' — No, but only with the
duke of Norfolk there ; I speak in the presence
of God. (Signed) Frances Knight.
William WiirrE sworn, deposeth as followeth t
Q. Did you live with the duchess of Norfolk
for some y^rs past? — A, IJived with her
smce the first waek of the first trial, about six,
or seven, or eight years ago.
What care was there taken about the
duchess's door in the park ? — I generally went
out the first in the morning ; the door had two
holts, a cross-bar, and an iron chain besides,
these I unbolted every morning, and unbarredi
when I went out early.
Did you ever hear or understand that Hosier
had a key to that door? — I never knew any
thing of it, nor kuow not of what nse it could
have been ; fur he could not come in till the
door was unbolted.
Say positively, whether ever you bare
heanl, that this man had a key tu that door f-^
I never heard, of it.
Did you never set him come in at that doorf
--Yes.
4P '
12 WILLIAM III.
1315]
; How? Upon what occasion? — I happened
to be goinir out myself, and to open the door
for him. His business, I was told by my lady
dac}iess*8 maid, wasi, that slie had lent money
to a man in Holland, and she wrote a letter to
be carried by this man to her sister, to seX this
money ; and she sent another letter by one
Bully to carry to Holland, to get the money, as
she told me.
Did you let him in? — I unbolted the door,
and let him in.
Did you find that this man used to come
freely to the house, at that door, by any key?
—No, I never knew it.
Who did he come to ?— To Susan Barring-
ton.
Did 3'ou ever see him above stairs with her ?
—No ; he might come in, and I not see it.
Did the ducbess or servants say any thing
that he had leave to come in ? — I never exa-
mined that, because any body that had business
had leave to come in, as tradesmen, and others.
Did they tell you in the house, that Hosier
was at lihoiy to come into the house with a
key ? — No, never.
Had you ever any discourse with Hosier ? —
I was one day coming from Change, and met
Mr. L'Estrange and this Hosier. L* Estrange
told me, that he was ill of the gripes. I told
him, that the best thing for it was burnt claret ;
and he, and 1, and Hosier went to a tavern in
Smithfield : and while we were together. Hosier
reflected upon his master, saying, his master
had used him ill, and deserved to be ill used.
Mr. L' Estrange heard those and s(iinc more
words ; Mr. L'Kstran^^c told nic, ihal he spoke
to that purpose, lie \tas resolved to Iv revenged
of his master.
What did hf^ s:»y of liis inasttr :' — lli» said
his uiuster had usvd liirii xmt ill; lie lud
many tlirealuiinr uo-ih; lie said hi:* master
was an ill man, and d( mtvim! to lut ill i.scd. and
the tinu' woiiK! vauu: win n ho sin ii!d n [u.it it.
Wlirn did lit* r-ay the so \V(r.,!3?-- li uas
about Miohailiu:.:; tuo y< ai-s a;;o, oi u year
ago, I canniii tcil \^hi(h.*
Q. Yoiisay you lived vrah the duclioss the
first week ol'iho f-r.-t trial : \\as > auoss there at
that time ? — A. She was j;one hciore I canu'.
How lonj» f — I cannot tt II ; I never saw htr
there, to the best ofuiy ii-mrmhiauoo, but have
heard there was sm h a one in the lamily.
Did you know llohier ;' — I sa- him come in
at the back-door.
Whose servant was he then ? — TIil' first time
I did not know ; liut a liiili.* aftor, I was told | and all the servants, and asked for the
he was sir JcdiM (lerini'iiK-Vs.
What occasion had he to come to the
duchess's house i* — 1 Lncw not, but about the
business of the IctU'i*.
How oOeu did you see him there? — Two or
three timi*s, ot- mure.
With whom ' — With Su'ian Banington.
What was his business with herV About
Ibe money, asslie luld lue. He vteut along
Proceedings betooeen the Duke ofNorfoUi [13l(
with that woman ; she sent a letter by Inn;
and the sent letten by aome other Dotchaia
into HoUand, about the niooey.
Did be ask ibr any other serrant ?— Not dnt
I know of.
Did you see him above stairs with ber?— 1
nbver saw them in any apartment but thtf
place beloWy where the Inmber b, near tk
park-door.
Do yon know Susannah Banington ?-l
know her very well.
Do you know where she is now ? — Her w-
therdied about the 10th of January, sndtha
I saw her all in tears ; and she went away db
this account of her mother's death.
When did you see her last? — I have Ml
seen her this fortnight or month, that I knv
of, that 1 conid distinguish her from sDolhtf
woman, except she bad a mask on.
How longbefbre this trial saw yoo bcr?-
About a fortnight: she s^ave me an sorart
that her mother died the lOth of Jaooiiy ■
Holland.
When did she go away ? — I did not take »-
tioe of the time she went away.
Did you know Hosier at any other piMeM
at the lady duchess's?— Never, bnt as 1 kR
seen him in the park, and with Mr. L'Ertrafi.
Was you never with him at sir JohaGer-
maine'sr — Never.
Do yon know sir John Germaire?-^AAff I
had lived with the duchess sometime, Ivli
told by some in tlie street, tliat that wm b
conch, and his livery, and that he was the ua
that there was .so much noise about.
Did you never see him in the dacbsf
house? — I never saw him in no partofiuybiT
duchess's house, nor in no apart meat : Jodl
am the only man that goes up and down suii
Did you never see him in tnc duchess's cto
pany at any other place!* — No.
liid you t-oustantly lie at liu- duchess's hcust?
— When the diiohi'-s %\as last at Dra}KX, i
lay at Hichmond two or thrconi^'.ils.
Did you lie constantly there, uhcn lbe<!B*
chess u.is iheri'? — 1 u«»s sick ui^ar a ilKfflih
and all thai time 1 lay at :ny wife's; bntnof^
commonly lay at the duchess''"", since »be *
come to Duke-strctt to live.
You say, you used to open the door io ikf
park first in a mornini;;' ; \\ hat timtr diJ vi'J ^
to open it at ? — At six, seven, or citirht o'clock
in a morning; there was no certain hour; ba
1 generally opened that door.
Did you ever know llnuseur come iniitff
I other door hut that? — Yes; one wet dijl*
came in at the street-door, before the jW*
woman.
Did he never ask for any other bodj?-*
never heard hun ask for any but Stuan b^
rington, for she was his country -womia.
If Nicholas got in at the park-door, e^
not he get up stairs? — If he coulJ (Bfii*
that door he talks of, he could not get ^^
duchess's apartment ; for there was a «••*'!
twixt that, where the plate and jeweb iajil**
Mnd Air IhukiUpJor a Divorce*
A. D. 1700.
[ISliB
ioald open : that if he oould get up two
Hin, he eodld not jfet in there,
bad a key, and got in at any door, eould
in Barrington, when he came in, with^
difficulty, lead him round the bouse?
Qot say but she miffht; but T never saw
It below stairs wiw that woman, and
went away without going up stairs,
on never see him bring any thing to
ie?— No.
lamed one L'Estrange, that you saw
n at the tavern, what is he?— ^He was
fellow-servant at the late duke of Nor-
disoourM had you with him then ?—
iplained to me of his being ill, and 1
n the best of my advice.
time was it that Nicholas had those
ling words against his master ?-^Abont
en, or twelve o'clock at noon,
long ago is it ? — I cannot tell if it be a
two years, it was a little after Michael-
it wliether it be one year, or two years,
t tell ?
1 not Mr. L'Estrange tell?— I asked
Sstrapge, and he couM not tell.
le servant was Nicholas then ? — He was
I servant then : he railed against his
it that time for turning him away,
^ou not know who was his master a
two ago ? — He told me he was out of
ou not know him to be sir John Ger-
lervant, when became to the'ducbess's ?
not know it when 1 first saw him and
igethcr ; but some time before he went
heard he was bis servant,
ou say you did not know sir John Ger-
bout two years ago ? — I did not know
IS to speak to him.
WiLUAM WHfTE.
w ftiAC-DoNNBLL swom, ileposoth as
i'ollowetb :
[ow long Iiave yon lived with the
I of Norfolk T — A. Four ^ears at Lady-
U
lat manner was the door going out to
: kept ? Had any body a key to it that
, of the family r Did it use to be left
-It was not to be left open ; it was very
0 be left open ; besides, it was bolted
:ed.
here particular care taken of that door ?
I myself bolted it very often at night.
ou often unbolt it in a morning ? — Yes.
her or hot, the time that you lived
id yon know any body, that was not of
ily , come with a key to o|ien that door ?
ou know Hausenr, or Nicholas ? Had
' to that dwri' — I never knew it.
ou ever see him come in at that door?
ned that door for liim once or twice
1 rang.
was that ? — In an evening.
What did he come about ? — I do not know ;
but he asked for Susan, my lady duchess's
servant.
Did you ever see him go up stairs? — I never
did hear he went up in my lite.
When he asked for Susan, did he go up
then ? — No ; I called her to him, and I never
saw him go up stairs.
Did you stay with him all the while Susan
was with him? — No, 1 had no business; I
went my way.
Was Nicliolas, when he rung, in the psrk,
or at the inner door? — In the park.
CroU' Examined.
Did you know whose servant Nicholas was ?'
— I did not know, nor I asked no questions.
How often have you seen lum at the
duchess's? — ^Three times.
Did he always ask for Susannah Barring-
ton ? — One time he asked for Mr. Keemer.
Who was Mr. Keemer?-^He was the
duchess's servant.
Did you use to stay with him ? or, did yoa
leave him ? — No, to tell you the plain truth,
I thought he came to court Susan, and did not
stay with him.
Did you ever see him up stairs in Susan's
room ? — I never saw him there.
What employment have you under the
duchess ?— 1 am her footman.
When did you see Susan last ? — On Tuesday
se'n -night in the morning.
Not since? — No.
Where did you see her then? — At the
duchess's house.
What became of her after that ? — She said,
her mother died latidy in Holland, and she was
going tbere.
>Vhen did you hear her say so ? — I lieard
her say so several times before she went away ;
a month, or a quarter of a year, before she
talked of going to Holland.
Upon your oath, do not you know that she
is at the duchess's ? — I know not of her being
there.
Can you take it npon your oath when she
was first wanting?— I saw her on Tuesday
se'n- night last, in the morning.
How came you to know she was gone, if you
do not know the time when she went ?^-I did
not know she was gone, till I went home froin
the house here.
Who told you she was gone?— The ser-
vants.
She was there when you came hither ?— -On
Tuesday morning I did see her.
Has the duchess another in her station?—
There is one Mra. (*aml>ell, that dresses my
lady duchess, but she does not live there.
Did she use, in Susan's time, to come and
dress the duclicss ? — Yes, she used to come
sometimes.
Has the duchess taken any body to do Su-
san's work ?--! know not of any.
(Higaed) 3Iatth£w + Mac-Doniuu..
|319] li ynUAAM m. Proceedings hetaeen the Duke ofNar/M
Mr. RoBEBT Welbodrn Rwoni» depoieth as
foHowelh :
Q. What account can yoa gire of Mr.
li^Estrange't havings notice to be a witneas ? —
A. I was told by tbe dnchesa, That L*£strange
liad been with her, and gave her an account of
Home particulars between White, and him, and
Nicliolaa ; that havinpf the J<ripiug in the guti,
they went into a tavern together ; that he heani
WliitG and Nicholas talk to^rether very loud,
but he told me he had the cfripea, and could not
to well mind what he said ; but he heard him
use hard words against his master, but he could
not remember that he said he would be re-
venged upon his master ; but he would recol-
lect himsell', and, if he could remember, he
would say what be could : he told me, he had
been bred in the Norfolk family.
Did you ask Mr. L'£$trange about this mat-
ter ?— Yes : Mr. L'Estranse told me, he re-
inembered they were tognlier, and heard Ni-
cholas si>eak very liard, ill words against his
master, but he could not be positive what they
were ; but what he could remember he would
speak, if that would do the duchess any service.
He desired my lady duchess would give him
notice the night before, aud he would appear.
Wheu was this P — it was Tuesday or Wed-
nesday ; I think it was Wednesday.
Crott' Examined.
Q. Did the lady duchess tell you what Mr.
L'Estrange said ? — A . Yes ; tliat uave me the
occasion to speak of it. lie said, lie heard Ni-
cholas say hard, ill wonls against liis master,
but not that he hi^ard him say he would study
to he. rt^reni^fd. i'erhaps, says he, there mi^ht
bo some other words. Tliat he was in the
kitchen, and wonid endeavour to rrcollect who
was there besides ; and if he had two or three
days time, he would enquire.
Did you let him know you was concerned for
tlie duchess ? — Yes ; and he told me he would
tell me what he could say in tliis matter; and
he shuuhl l>e ready (o appear a: any time, if
that would be for the duchess's advantai^e.
Did lie lell you he was i;oin{*- abroad into
Holland? — Not one word.
Did you intimate t(» him, when the duchess
was to make her defence ? — I think 1 did, but I
cannot be positi\e; hut betook nu notice to
me, that he would not be there.
Do you know Mr. I^a Kountainc? — Yes, I
know one La Fountaine.
Is he in the duciiess'ssenirc? — I believe not.
Do you know wl.eilier he is at j)ra}ion? — 1
have seen bim at Drayton.
Did he live whU .sir Jolin (icrmainc, that
you know of? — Never, thi.t 1 know of.
When saw you Susan Barrintrlon ? — I c:\n-
not be positive ', but 1 think, not tliii month or
six weeks.
Have not you seen her since this bill was
brought in? — I*oyiti\rly, I have no».
Hor.iRT U'eldou^n.
Elunoe MoirFOBT sworn, ilqioseth ts fc
Q. Tell the Lords if you know Nieh
sier, sod on what account yon came
him.— J. This Nicholas lodged two
limes at my house. My husband was i
man, and he was a Dutchman ; Ibey '
brothers, they loved one another.
What know you of this man, this }4
—My husband told me, that this nai
las, (1 did -not know no other name
my husband told me, that lie had a i
rob his master, and that he knew n
gold and his jeivels lay, and had m
keys, and would watch' bis opportuni
his master was at play, or oat of lot
left the keys at her bouse.
Your husband told you so?— Yes,
band bid me seud for this roao. Hh
his lost dying words.
Your husband had a sad misfortune
was it your husband told you so ?-A
was in prison.
How long ago is thai? — About eigt
years ago last Christmas. 1 woukf i
your tordships think my husband was
man ; he was only condemned and •
for changing ten pounds of his own m
What were your husband's last dyiD|
— He desired me to send for this fd
deliver those things he left at my hous
for him ; he came, and had some k
drawer, that mr husband tokl me ht
there. He took two or three kevs,
them in his pocket, and looked mii,Hitil
countenance.
What did your husband say to yo
bid me give Nicholas ihc keys, and
have a care, and keep good company.
>Vhen was that? — A week or a 1
before my husband was executed.
Did you acquaint Nichcdas with wl
husband said of him ? — No, an'd picj
honours ; I only told him, my
char{;:e(l me to give him those keys ; L
in trouble, and havinc: a gi-eat many •
I talked no further wiib him.
What <lid Niebolas say to you?— H
out of countenance, and told me be»o
and see mc anotl»er time; but he ne
so that I did not see bim atraiu till I sa
I the Meuse, an«l then he toUl me ibai I
come to see me, but he never did, In
shunned mc.
How long have you known NicI
These rijjht or nine yrars. I knew b
he was lootman to sir Jolin (iermaii
knew liim when he was his gentle
knew him when he went, and I knew I
ho came : be is like a soa-rat, hew
goes ivhen he pleases. 1 ho|K' in God i
It wiH be conoid* letl by this Hou«e, tb
fellow's wimess should not be taknj
great concern.
(Signum) Elcanob + J
Then the duchess's coiin
M
A'. H 'vmo.
lim
>X>OYTDel may be examinett, as to ttte with-
^mLWw^WMf wJhieHes, and Ihat it be taken in writ-
er = ifvhich was agret^l to, and lie examtoed.
' T * ^ 1 ^o the dtiches9^5 counsel proceedeil to exa-
i ^ > <^ c»tt)er witnesses, and their cTidence taken
jBlmort-hand.
Ttm^n Mrs. Pitts being' called for, and not
/f>e-4»iriDjf, William Giidfrey bein^ sworn, said
^ t H a ^ eflect :
B. %^r^nt to serve Mrs. Pitts on Friday taorn-
ks* - when I came to ber house there was
i»i^v3^f^\ A woman with a pitcher of water went
k a^ketl her for Mrs. Pitts ; she said, she
■ •ot At hnrae. 1 $]hewpd her the order» and
tft im. «rnj>_v of it upon tiie lahfe. She was loth
cs^iveit; sbesaid, tli.e ]hdy would he within
^•icriclfr The woman's name was Olivet. The
^^t. a» t^ht I went again, and a woman came out
^^ «s^td, Mrs. Pitts was not at home. Then
«« si|)ake in French to me : I did not under-
Bpittci bet. t lef^ a note for ber to attend this
^J»t%«« the duche$&'*s counsel prayed, that
- agreements between the duke ai^d
■«ioH^$$, iu 1694, may be read out of the deeds
J^**5«^tsted for that purpose • which was agreed
^^» «i^id read accordingly.
March 5.
*-**fcts Neocs sworn » deposetli as folio weth :
t* I desire Mr* Negos may he asked, whe-
tbe duchess of ^iorfolk did not scud some
'. by him ? The words I do not eoofirie
to ; but whether the rocssage sent by him
' lord duke was not to this purpose ^ that
iihstaniiii^ the articles, she desired to
rfVoni his If race in what manner she shouM
and I hat she would iye governed by his
tions ?
I think it was tnucb about the lime of the
action of ihe^ie articles the duchess sent to
Mr. D»ti<rneviUe was counsel for the
Hke, ami sir Thomas Powys f)f the ihichess.
Ir. Longuf ville took what cant he could ;
^nii when Ihey came to talk of their Hvin^f
^rprately, I took it oidv to l>e an apprehension
^iid fear that my lord duke would contine the
iucbess lo some hooKe. My lady duchess
at forme; 1 wuiied on ber, and she ex«
I herself very sensibly of the misfortunes
' tlie duke and herself, that such differences
^•iKftuld have been between them ; and she was
<|esirous to let my lord duke know, and desired
» that I would let my lord duke know it, that
hm would avoid all company that should give
'^^im any otfence, and that she would not so
much a*5 pay a visit, but where he hked. I
arquaiiiied my lord duke with somethintr to this
pur|)Oie ; Im she often said to me, more than
mtce or twice, that if she bapftened to die
tefore my lord duke, she would leave him her
«atale; aod I know i Save said so to my lord
^oke.
Whether, from thst time, do you know
4bit the duke sent any message of complaint to
Hw dttehesfr, la the place wber« sbe lived, that
he would have )%er live in any olfaer way ?--I
know fK»thin^ of that matter.
Do you know whether my lord dnke ever
desired ber to come and live wjih bim?-^
never beard of any such thing. '
Did he ever send to ber, to avoid any cotn^
p«ny? — I never beard of anv such tiling.
Whether bad you atiy Jirectious taattxtfd
the duke, that be would give way in a coa»
troversy between the duohess and a noble lonl
of this boujie, whether be would wave bis pri*
vdegef^ — I have great reason to desire sir
Thomas's favour iu this matter; I know not
what he aims «t. J was calkd to the bar
before, to speak the truth as to the matter of
the privilege ; 1 know not what he means by it.
I mean it only as an instance of a ci^d mra-
sage between the duke and ducbes^i, owning
tier as bis wile, and that this was a messAg*
that besjioke a good understanding between
them ? — Wilt you have me to give an answer
to sir Thomas, my Ion Is f 1 confess, the duke
did send for me, and asked me how the seltli^
meut and agreement were betwixt the duke
and duchess, because of this matter of the
privilege.
1 did not mean tliat ; but only as a late ttt-
statice of the duke^s owning the duchess so ^r f
—When the duke sent jbr me, he would know,
whetiier by the agreement he was obliged te
let her have the privilesje? I said, I under-
stood it so ; and though be bad no mind to do
it, but as he had waved his privilege, in the
case of an uncTe» he would do it for ber.
What would have been the consequence, if
the duke Jiad not waved bi^ privilege P Wotild
not that have defended her from a suit? — That
you mav make use of as you please*
8ir Thomat Pitwyi, I would only make tins
use of it, as an instance of kindn^^ss between
the duke and duchess, Faahcis NijGus,
After the examination of Francis Negus, he
bein^ heiore sworn, the ducbeas^s counsel de-
clared tJiey had finished their evidence.
Whereupon the duke's counsel desired to
call a witness or two, to support NicbolAs Han-
seur's reputation. Then William Allen wa#
sworn and examined.
WiLLUM Allen sworn, deposeth as folio wetb ;
Q. Do you know Nicholas Uauseurf —
jL Yes,
How long have you known bim ? — ^Tbree
years.
Did you not know bim before that time ? —
I knew* bim about three years ago.
Bb«1 you any deahngi* before tliat time ^—
I bad dearmgii with him when he Jived wUb
Mr. Gerraajue.
What were his dealinf^t? — Ai honeit mml
fair as any man could desire.
What ofBee bad be under Mr, Germaioe?*-*
fie was cook to Mr, Germaioe, I suppse.
What ! was heeoolt to bim ?^^He bought id
the goods, and be paid me faooesily fi»r wlai
be Mugbt
Pf4Ke£idiiigs bel^wem iJu DmU gf iVor^
Q, What trade Brecon ? — A, A butcher.
1'beo he |i&i4 you his master^ft monej for his
tnaifter^A. goods ?• — ^Ves, he paid me very ho-
Wnen saw yoa him last?— I saw him when
I was sumuiODcd her*? by the ordtr of this
imusf^i hut not before of l&te,
(Sigiied) WiLUAH 10 Allen.
The duke's contiBel moved fijr copies of the
etAminations and joornala ; ubich wnigranttftl,
and ihe coiin^l withdrew. The following err*
? maile
9 th
It is ordered by the Lordf spiritual and tem*
poral in [tarhanietit aj»eiiitiW, That copjes of
the exaniiiiftuoiiij signed by the wiitieaset
tbii day 4 abd iLntry In the journal* be delivered
to either »ide ; aoiK that the exaioinatmns lakeq
this day in shnri-h&nd be trau^ribed, in order
to be te&A to ihe wttneiaes to-morrow.
It isordei^d by the Lords s{iiniual and t^m^
poral to parijatfieot asieu^hled, Ih^it ta^ morrow
it twelve o^dock^ thi« house will proceed to
bear the exnmtnabous t&keo thii day^ read to
the witnesf^e»r rebtit)|r to the duke and doebets
of Norfolk J and all hnh summoued to ar tend.
March €.
After the exarnifiatloo taken yesterday, re.
^ liog^ to the duki2 and dtu!lie»8 of Norfolk,
*■ were read to the witneai&es, and they signing
them^ the duoh^s's couuift'l tnovcd to hare
copies of ihe de(}o±iit|ou]j t;\keii on dtfjer side,
lyid then withdrew.
March 5,
Mattebw M4C*Donnei^ £woro, deposetb as
Ibilowetb ;
I was goiufr to Mr. Strange** housefand
1 aaw idy lord Howtird of Eiicrick corntngr li^ai
fray, and be weut to ihe door aad kuocked^ I
made up to the dtior, and a girt oiiened the
door. Mj lord a^ked if Air. Siraog^e wa^
within, and &lie -linsiv^red, yes. Theu I went
lo tbe door, aod asked if Mr. Stracige wat at
borne I she answered, no, he went away ou
Thursday' I Eu^ked^ by pucket-tx^at, or how ?
jghe said, by loag^sea. I Ihoug'ht abe told
my lord he was witJiio, aod so I caiueaway.
(^gOed ) M AITHIW + M ACDONKBL.
BicBARO Mat sworn, depoB4>lb as folio weth t
Q, Doyou know NicholajHauseur?-^J. |
never saw him tdl Suaday fdrtoigbt last<
Where aaw you him tbeii? — At my lord duke
f)f Norlblk's, I bad a command froto my ford
duke lo take him iu tbere.
Where? — To lodge hitn iu my lord duke^s
lioustf : I am his houaehold- steward ; he com^
Ifiauded mt to provide for him in the house.
I don't desire you shotild do any thing un>
bceomittg to mv lord duke ; btil you are upon
jcuir onth, and you niust tell the truth f~^l
will freely tell what I kuow«
IE*
1
Can you give me any memaaA^m
before that lime ?*—l new warn nf
hitn ttil ibi^.
Hath he been ibere everMC*?*
made profinoo for hiai by 1^ fiie
mandi
Bo yoQ know % ftoea ? Wbm I
bef^?— Do Sunday was foftnall 4
t bit her like w be, and I waa ntwei
care for her.
Where wss she lodged I — In fny la
house io St. James*! square.
Has slie been there a fortaqg^^
fortnlf^ht last Sunday^ and oooitag:
tend She Lords.
Had she tbe bbeity of dheboffKvii
kept close ? — They were Icept oaltr li
Btrett themselves; nobody was Jmk
to see them i They de»r^ to be ibtv
than any place.
Do you know thai those |irap1flj
sent tor, arid bow Jong before tbejf"
I was oevf'T prlf y to any thing of |p
f ha4 no kooif l?4ge of their names^ m
tbey came.
Do ynu know of any moat:y lunt
their roiuing oier ? — ^Not one oeoiiy.
Do you know of any reward the^ '
or are to have ?^l ku&w noi oi' as
they bave had, or are to have.
Cimi«T«>»i£a RiJnz sworn, depoi
f^llowetli :
Q. Are yon servant to the duke of
^A. Ves,
Do you know Hauseur ? — 1 have
but am not aci^uainted with him.
Ruw Long is it siope you saw bit
within this tbrtnigbt.
Did you not see him at any time fa
^No, lam positife of it.
Where did yoa see him first]
Jamea's.
In what plage there ? — At bia
house.
Hath he been there ever mtkoe F— '
Was tbcr« a woman called ¥ai
him ?— Vea.
Did they come at Ihe jiame time f-
How lrtDgago?.^A fonnjjfhtj it
not M» much.
Had tbey the liberty of the bowa
ootiee where ihey v>ere P-^They bad
go where tbey pleased <
Did tbey go abroad since lb
there f< — I caonol tell ; not to my km
Do you know wheibcr tbey went^
bouse ujjou any occasiou f-^Not to a
led^.
Who brougbt them Ibere ? — I da i
Do you know whence they eantef'
Did you nnder^tand where t|i«f h
fore ?' — NOf 1 am a stranger to tfieai
never ^w tbem before.
Saw you ibem wlian ther came &r
I was woi at home. Can
i
and kts DuehesSfJhr a Divarei.
A. D. iroo.
[15116
AD CoTTEB fworn, deposeth as fol-
loweth :
e you serf ant to the duke of Norfolk t
s.
a know Nicholas Hauseur ? — I did not
n but since this trial.
lonsr ago is that P — ^Aboot a fortnight.
>u know where he bad been before P —
new nothing of himy where he was,
t he was.
Helena the Dutchwoman with him ?
the woman canne with him since the
Defer saw them befo^.
00 nef er know them go out of doors
}y came, but to this house f— Ne?er,
seise.
Inroi^t them to the duke's ?— I know
ee came they, do yon know ? — I ean-
ley nef er report in the house, whence
ne P— No, 1 nerer beard where they
IT how they bebaf ed themselfes.
m know wliether ef er any reward was
em ? — No.
« he may be asked, whether be has
m before, for some time past, within
night or three weeks, more or less,
1 in Somerset house, in ordel* to this
rhe thing is this ; I was one nijght at
t bouse with my lord duke, betwixt six
n o'clock ; but I cannot tell how long
itherit be three weeks or a month ; it is
f that I know.
were you there about T^A went there
r k>rd duke.
your oath, was there anv thing then
ne, relating to this trial r— -Upon my
lid not know but it was concerning my
irardofEscrick.
le there with the duke? — ^Yes.
Ott know who they went top — No.
your oath, do not you know whether
at to Madam Pitts, or no P — ^They went
house, but 1 do not know her name
otto.
Jiere any body else there, but my lord
nd my lord Howard P— God knows.
I doke called me to the door, and sent
a message; and 1 went and came
M yoa see there when you came
-I saw none but my lord duke, and
tfmt I did not kneiw.
lid you see ffo in P— None but my lord
id my lord Howard.
Edward Cotter.
*■ Hdddlestone sworn, deposeth as
followeth :
lOB yonr oath, do yon know of any
I Rbting to this trial, that hath been
•ne time pastP— il.For meetings, I
It any thing of them. .
M nndentand the questioD P— I know
of nj niMingi.
Hare yon not been at any plsice where any
thing has been done, relating to this trial,
against the duchess of Norfolk r— 1 do not un-
derstand any thing of the trial. I know no-
thing of the duchess of Norfolk.
Fny» give a positif e answer : Hare you not
been present, or do you know of no meeting,
relating to the proceedings against the duchess
of Norfolk ? — I Defer was at no meeting.
Who do you lire with P — 1 live with my
lord Howard.
Was you efcr present at Somerset^honse,
where my lord Howard and others met ? — I
hafe been at Somerset- house, but know no-
thing of any concerns.
1m> you know. Vaness P— I know no sach
person.
Do you know Nichohisf— I do not know
him.
Pray, answer positif ely; Do you know
one Nicholas, called Hauseur P — I know se-
f eral of that name, but I know not who you
1 mean one that lif ed with sir John Ger-
maine.— I know him not ; 1 nef er had any
oonf ersation with any body that lired with
sir John Germaine.
(Nicholas called in.)
Q. Did you see any such man as appean
here, at Somerset- houie f-^A, I know no such
man as is called Nicholas Hauseur : I know
seferal called Nicholas, but none of the Han-
seurs.
Look upon this man ; hare you seen him
before or not P — Yes ; I hafe seen him twice
or thrice; but I knew not who you meant
before.
How long is it since yon saw him first ?—
About a fortnight ago.
Hafe you not seen him at Somerset-house P
— Ncfer.
Where did von see him ? — In Gefrard-street.
Was that all the places you saw him atP— I
saw him no where else.
Whose house did you see him at P^-At cap-
tain Soames's lodging.
Did you not see a Dutehwoman there,
one Helen Vaness ?— There was a woman widi
him, I do not know her name.
Did you not see her at captain Soames's P—
She was with this gentleman there.
Did you see her at no other time or place P
—No.
Who else was there then P — Captain
Soamcs, my lord Howard, and one or two
more. I was but at the door. I hare seen
this man go in. I was but a footman waiting
at the door. 1 knew not the otbers that were
there.
Did you know no more that were there?—
My lonl Howani was in the house, but I know
not if he were with them.
Did you er er see Helen Vaness before that
time? — I hafe seen the woman since, but
ner er saw her before.
Did you aercr tee her any where else P*^-
k
IflST] 12 WILLIAM IlL Proeeidings hlmm the Duke qfmrfM
Nef ttT any where eise bul al ttits bause^ going
and coming'.
ITi^ counsel beingf witlidrawii, the Miowtnt;
CH^era were made : That copies of the €xami'
ntlmck, rt^ad to, aud ligntHi by the witnesses to-
day^ be delivered to eiCher slide. That tbb
Bouse wjH peremptorily praceetl to hear ifie
fluke of Norfolk** and tlochesi of Norfolk's
coansel, to sum up the evideoce on botb sidesi,
on FHiiay next, sud aU the Lords summotied
td fttbend.
The ETideoee haviog' been aymmed up, the
Lordsf, after a tong debate, ^od a diiiaioo of the
Ifouse^ comoiitled the biJl, by a majority of
WUereupoQ the duelieis i in mediately prefer*
red the Pelition recited in tiie Order, March Q.
March 8*
Upon reading tht Peiition of &Inry, i!tieUes«
of Norfolk, shewiog^, ihal by the Bill qow de-
pendioc; for dissoLf iog^ the marriage belweeu the
duke of Norfolk and your Petitjosier, her join-
tare and marriage- aj^reements are to be set
^Lside^ and other things m the Peiitioo mention*
ed, and pray Jog. to be heard by ber counsel,
toutrhitig' til a several cTarms and interest, and
ii«v^eral daiMes in the Bill : It is ordered by the
Lord 3 si»iriiual and temporal in parliament as*
itmhled. That the Petitioner shall be heard by
ber eouQsel lo* morrow at eleven of the clock,
at the Committee of the whole Houie^ to ivbom
the said Bill stands eommitted ; at which time
she is to produce ber itaid marriage agreement
and writiugSf as in the Petition is set forcb i at
which time the ddke^s counsel may be preseiU^
i£ he tbiok fit. Mattu. Joun^o^, CL Pari.
Upon which an Order was made for eounsel
to prepare a claitae for tfte lO^OOOl
The duch^s^s couomI harini^ refused to join
in drawing any clause, though they advised a
Petition smout the jointure and marriage agree-
tneut^ the duke^s prepared a clause, to n liich
the Lor^lfi added a few words, and passed it as
in tlie BdK The Bill being sent dowQ to the
Commons^ the duchess presented the follow-
ing Petition :
T^ the Honoarable the Kuigbti, Citizens, and
BurgesseSi, in Farliament assembled^
The HuMBtE PETITION of Mjiar,
Duchess of NoaFOLK.
** Sheweth,
" That for putting an end to all dlffereuces
between the duke of Norfolk^ your Petitioner '«
husband, and your Feb tinner, several articles
of Agrf cement were entered into, and escecnted
in April 1694^ by the said duke, your Petitiooer,
mnd your Petitiooer's late father, the earl of
Peterborough, whereby, and by dee<ls executed
pursuant thereuntil, die duke had bis then de-
mred advantage^ and bath fully enjoyed the be^
oefitthefeof: That your Petitiooer, alK)ut ibe
umt of pffrfectiog the ^yi ^ee^ sigoitied to the
said duke by Mr. Negus, that $h« ttio<l|
rt^adily comply with all sueb or^JersM
of livtng and coor«*r6atioii, as lie sjiii
fit to appoint. Notwithstaodiqg^ wid
without ever signifying any disn&fiitii
or with your Petitioner » and witliuotii
ner of aotice, or previous prciceediugig
mouand ordinary course of ju8tict,3
from your Petitioner thai kgal trial!
clesiaatical court, which by" the km
realm (ah «he is ail vised) she h eoui
did, on the tOih of February last, eshi
in the House of Peer*, intituled, * i
^ dissoli^e the duke of Norlblk^s nism
' the lady Mary Moi^launt, and ta eo
' lo marry again J t^pon which the
ings were so very quirk, two ^'itum
brciught from beyoful the seas hm«m
examined against your PetitioDer^
Petiiiouer charged with facts ^^?f^
committtrd many years since, and i||
the date of the said articled, coqid id
pared to make her dc?feiice as she in
done, if the proceeding had been if
according to the kiioivn laws of the i^
places of abode of the witne^^dj
agabst her being yet not knowu ari
to your Petitioner ; And your PeiitiM
notice^ that the said Bitris passed M
Lord^, wd seut down for the c«M
tbia honourable House^ .J
** Vour Petitioner prays siie may M
her couDsel at law and ontf civil»aa i|
said BUI, be tore any pn^Cfedings be hk
by this boDOurable House: and your J
shall pray , &c. M^a v S(a
A day b^iog appointed by the Hmtn
mons tor Lhe Gomioittee to proceed,
caused the Papers following lo be pnib
THE
DUKE OF NORFOLK'S U
WITH
REASONS FOR pksBmc nts Bl;
If want either of precedent for a |»
ary divorce* T^etonc going Utrough tb
and ineffectual fnethods of Dodoa C
or of demonstration of tact, have bil
f»nved the duke of Norfolk of that ici
lis wife's aduUery, which the difii
lows ; the late statute made ia ifas I
and the coming in of two, who, while tl
former Bill was depending, had b^mM
to prevent that discovery which thifi
cannot but be thought to remove IJII
against an act of parliament, iuA t^}
benefit of the duke, but of the
means to preserve the inheritiooi I
an office and honours to persons of i
ligion.
Aud since bisbOp Cnsens^s 4 _
lord Hosse'S Cascj has pavle tt'i
'3
and his Duchess^Jt^r a Divoroe.
A. D. 170a
[ISSO
cinoM which tB^orern the spiritual court
u nutter, are but the remains of popery ;
D«f can be now requisite to satisfy the most
•nloufl of the reformed religion, but to set
lake's proolii of bis lady's adultery in a
iffht
• reputatioD which the duchess had main-
i, of wit and discretion, made it di6firult
any to beliere, that she could be surprized
t very act of adultery, as had been for-
f proved. And thoug^h it then appeared,
Mie Henry Keemer lived with the duchess
t she went by a feifi^ned name, at a house
for her at Vauxhallhy sir John Germaine's
icr ; and that Nicola, who then lived with
»ho, used to receive wood sent from the
CSS to sir John's house by the Cockpit; the
■rawing of Nicola, and carrying with him
>atcb maid, equally entrusted with the se-
en sir John'p side; loft no evidence of
constant conversation, but Keemer since
f and Susannah Harrington, who had the
;ruat from tlie duchess,
eemer, though very unwillingly, some
■since confessed his living with the duchess
'aoxhall, where he pretended she was
led to conceal herself lor debt ; and what
B Susannah had in the secret was unknown,
iioola appeared : Nicola coming into Eng-
some time since, in expectation of a ser-
, eipressed his readiness to discover what
«w, and to endeavour to bring with him
Doteh maid.
hi proves, that for two months the first
■ar after the king came (or England, sir
I Germaine and the duchess lived together
MB and wife, and were seen in bed together
utif Mr. Briane, and his wife, sir John's
f ; and that Nicholas Hauseur, sir John^s
Ida chambre, used to be assisting to him ;
Im duchess's woman, Susannah Barringtou,
to her, at going to bed, and rising,
he proves the like convosation at Vauxhall,
the duchess's house at the Mill bank, till
doke's first bill for a divorce wais depend-
I within which time, Nicholas Hauseur,
lir John's order, carried away her and Su-
th Barrington, with intention of going for
had, to prevent their beinjif examined to
1 they knew ; but the wind proving con-
r, they could not go till the bill was re-
d ; and then sir John fetched back Su-
■h, who was most useful to the duchess ;
iaosear went for Holland with Ellen.
B eonftrms Ellen's eviilence in every par-
ir ; and besides the persons mentioned by
i» aa privy to sir John's lying with the
SH, names sir John's brother, Daniel.
olas having been found very trusty, his
^ sent for him to return to his ser-
9 and gave him the opportunity of prov-
the <yMitinuance of the same adulterous
BTsatibn, at several times and places, from
Ummer, 1693, to the S6th of April, 1696.
^Wcars be had afUr his return to sir John's
unseen them in bed together at sir John's
« al the Cockpit, and at the dachess's
t>L, Xllf.
house at Mill-bank, and where she now lives ;
and iiRed to be let into the duchess's apartment
by Susannah Banriofi:ton, or Keemer. Nor
can any man who shall read the testimoniaU
given Mr. Hauseur by sir John ; hy the last
of which it appears, that he served Inin faith-
fully as his steward ; reasonably question Hau-
seur's credit.
Another, who had been advanced by sir John
from his footman to Mr. Hauseur's place, and
from thence to a good office in the excise, very
unwillingly conBrmed the testimony of Hau-
seur and the Dutch maid, not only as to the
time of their going from the service of sir John
and the duchess; but though being no fo-
reigner, he could not so easily be sent away to
prevent discovery, and therefore was not let so
nr into the secret as Hauseur and the Dnteli
maid ; yet he swears, the duchess used to come
masked to his master's house; that he has
gone with him as far as the Horse- ferry, to-
wards her house at the Mill bank ; that then
his master sometimes lay out all night, and the
next morning he has carried Unnen and cloaths
for his master to Keemer's house, or Keemer
has fetched them from him: and this he
proves to have been since the rejecting the
former bill, and about five years since, when
he was succeedeil by Hauseur, as before ha
had succeeded Hauseur.
Two other foreigners, La Fountain, who
lived with sir John, and was served with sum-
mons at the duchess's house at Drayton, and
Hugonee, who ran away from the lord Ha-
versham's since summons was taken out
against him, seem to have had the same trust
that Hauseur had; for both declared, That
nothing should oblige them to betray their
master's secrets: one said. No court cdukl
dispense with an oatli of secrecy ; and both
declared, they would immediately go beyond
sea. Sumnoons have been taken out for Mr.
Briane and his wife, and sir John Germaine^
brother (who are, or lately were, in town) to
confess or deny what Nicola and Ellen ap|ieal
to them for ; and it cannot be imagined, that
sir John should chnse the liouour of being
thought to have to do with a duchess, before
: the clearing her and himself from the imputa-
tion, by bringing his relations to disprove the
I charge, if what is sworn to be within their
' knowledge is false.
And if sir John's vanity should prevail with
him, at least it is to be presumed that his rela-
tions would be more just to him and the lady,
thau to sufl'cr any thing to pass against them,
which they could with truth and justice prevent.
But since none of them appear, the world
will believe their alisentiiig more than a thou-
sand wimesses, in coufifination of what Mr.
Hauseur, Ellen, and Bayly have sworn:
i whose evidence not only stands untouched by
• any thinfl^ offered by the duchess's wiinessea,
but is plainly confirmed by them in the princi-
palparts.
I This being the natura of the proofi^ it i» ob-
;Ue»
4a
^1^5
w
^^^w
1331} 12 WILLIAM III. PrMmtinpitth^en Ihe DiibrfS>,rfi& [W
I
I
1. Tliat th^re DCfer yet wis aoy casf of tbjs
kitidf wkert* ihe evidence Wi** not [tai>te lo
grt^ter c>l>jectioDs tUao can be mada to iUia.
, Thmigb m tli6 tat^M^t casi;; of ib^s kiriil, there
WHS full (»!nviciioti of the lady's Uairb^ cbil-
(lf*i>» i*hiW she lived separate from Ltr lius-
ttx^udf mill it^e presumption iros ^ery VioJeat
fvhoftiA tlie children uere; yet thii waa but
pii»Uiii|vlionf VLfn] til at was ^teakened by the
Dre«UfUplHii) iu law that they were ttie hus-
Oftud^n; ^^peciatt)', siDCe there was no direct
prufif of lUii loTer's ever lyittAT wjtJi her,
. fi, Thfiygh in ihnt case^ by itfailoo fjfthe
inlirrf Hi of t>iiFliaiiivJrvf , nod fear oi' the deaibi
l>f witnemst.^^, a suit wiu bc^uu in DtM^toi-a-
Cfiiutucins, it tvem tukcu lixiifi ihi*nce whii«^ the
jfuit was «l*'j>*'Ddiiii^ j lbert:i<>re that was mLlier
uii tihjectiijrii aj>^iniit firric*fe4i«g in jmrliami^rtiti
Uimn 04) an^UHieiil tor iL
5. In thai case, seier^l wHrit^sstrs wi?re exn-
miiit'd al the btirs of balli Ilnusvis, who had not
WlVI€3eiimiaed at Doetora-CoDimoD^f nor atty
410^ given of iheir uatnes huf(»re their exa-
luinatitjii,
4. U up pears by that CBse^ aod th^ pre^rfit,
lliiit tJie vxfluiisialioiifi in parliftnictit are mmt.
ftolenvn dnd tettJiin tbftti ihouc? of tbes|urittial
€omi ; uUirh dL'(H.'nd Ion much upon ihe hu-
HeMy of the rc^^istrr, ot bi$ dt^pnty .
^' H*^fore Ihrtt cnse, |iiarliuiiieil^ liftTO eith^'r
brukrn throngh thf^ rahs ^hir.b bind the
s|nntti»1 ix^iiri, as in tbi; case ol tbi; tluke uf
Norlolk^ Eliz. where the pfkHiaTnenl mtiHeJ
the itiattiaf^Pi a^s inwfnl according to OiMi'B
law J ibuo^'^h protrat-M and kited, hy n^«son
of certaiu decrees aud canona oJ lb« Fope'ii
law *j or else have dissolved a mnrri^^e wb^re
there had beeo no apphcutifui to Duel Mf!§^ cam -
ttioiis, u& it) the coMe of jMra* Wbnvton, who
had heeu iii«rneil tn Mr, t'ampbeK; amlyet
there bad ht^ea no exAtnUmtivn ul' uitneissts,
1>Mt what had h^^eii before the two Houseji^ £
4 3 W. &M,
^ hng before f in the ca^e of^ir R«lph 8ad-
lefp upon proof ht-fore the two bouseis, that
lady S£id I er*8 former husband had despvttfd hei-^
and disawiPHrtil for I'lmr yearji before slic inar-
riefl $ii l^)|jh, ibe parhaioent leg^iiimated her
diiblren by hit Haipb. 37 H, B.
Whert'as ^H>tne objifct againsii ib<? fwissin^ the
bill, tm if it would countcuance a jurisklKtion
in I he House of Lords to exninme to such
tn^tters, in the first iuRtance or originally ;
t)ie objectron would be tbe ^ame if it bud be-
en n^ a» it might, io the House of Coinmons ;
Imt in Iruib would be of equal force apiifi»Ji
II J OS L privnie, mul several piifibc act^j occufrion-
ed hy tbe exaiointttioo of witnesses of notorieiy
of fiicL
*frlijicc therefore the duke hn-? so lonfj-, ^ad so
of^t*n in isiin enrlearoured to be iVpi'd from a
JwlVt publicly Jami^d &nd proved to have bred
iviiti &ir John Germaine, as bis wife; tbe
Alukc'^ former tlisappHintmcot cannot hi it he
jHHt'crtuI ur^umtnts Ibr his s>pctJy oMaiuing
ihut justice wlttch \W t^ainlu^-o^Kixtl ^-sxsx^at
give ttlm} tbck ^vQwec Te&c»\uu^ ut> i^ixf^nit \H!wa.
to that liljerty uf fivinff as $bt Hume ^mn
amtic settled by artteles : But n mat oC^
art aiKl oratory th^tu b*r
lurned tbia into a H^c^CfS
if ^be bat, or a pardon afkrwifik : M ikm
not heeu evidcut?e of her *clji»jfie«i^i|i
ftuch €on«Tructiofi^ the iluke wauidbtf hp
xhe. bad rt^pt^ot^^d «>f tbe turmcr iiyiinii tir y
receivG^i fi:r»m her ; hut now hofnn, i^b Ml
Joii|(^er continue to bear theinitntot Iwiii
and put bifo in dati|^er of bdng WMiMdiit^
&ir Jobei CiemiAiiie'a issut, or dcfvm M
the exptuLalioii of Icstifing^ hii ti»i!>flrs^ oi*
and oitat«« to a t^ut^unt heir*
Faavt^G, That ADt'LTiiav worm i oisHtmi
Beirrg tbe substance of sercral (if litib(«(V
sc*ij!t*s fipeecbes in tJit; llmiMi df li^
upiin the Debate of iUeLfir^ BtaiHt^
— Taken from oci;riiial jjaper* wfl »^
Bbhop^s own band.
Tl«f qaesiion i» indefinitely io b iwlii
Whvtbei* a nmn hein^ diiforofd frnmuii "A
ubu b»tb rornmittetl aduftcry^and isortM
of it* umy marry hiT^l&^!f to mmthm **f
no, dnrinsf the life of lirr ivhicli wilit^iwi^J
l*btr pbce in Ht, diatthew the Stfc^ nft^
ag^fcin 8t. Matthew ibe 19ih, hfl«gfMip«|^
cuily; If it bf not lawful for k mat?*
away hi* wife, and marry a^in, tax^ i^
in tne case of fornication (tor lifce iim^^
tlic words, hy puttiti*^ tbe eicepiM>iil>CTiita*
marriaqfe, cannot alter the aense), dim t*
(rurioj it mii*t of n^accsiity folloif, ihit o*
wife he [urt 3»aT lor fomicalioOj lbe<J"^J*
by tbe tenoor of Christ's words, is l*ft jj^l
marry again ; which freedom ii ^^J^i
to the aduhress herself^ nor anv l»«a ***
sbnH 01 ai ry her,
H. Mark and St. I^kc have b^eifr
ed to 8t. Matthew ; and it has been ^
Cbriftt'iS wonk in St. Matthew dii ^^^ ^
|ifrly bt^lon^ to Uhrist's discipl^ ^^^
1 bri^tian diureh* as tbe words in ^^^^^
anci St. Ltike, which arc absolttte, do ^ ^
Ls a Baying that neither I, uor, I tbif^^
hoily ei$e et or lieard of before i ¥m ^^^j
Jiermon in the moimt was spoken to fe-|^
ciples, and especially belnngisi to CbrHtS^
J I is clear they ar^ Sjiokoii to his doc^
for be says to them, that they are tht ^^
i]w earth, and the light ot tbe worhJ ; ao^
tbey are blei^edf ' when ihej sofier puf^
tion Ibr hii^ namt 's sake ,* Trbich m> ciaM
MV tir apply to tbe Jews^
"Jt is tru£j,4bat in the 19th cbap*«r n^
Matt he Wf Christ answers the Scrib«i and
risees, who came to tempt him with their ^
lion, * Whether it was lawfuf for a lutnl^
awtiy hk wife for anj cause,* t9 th^
Moses had permitted them to do* But J
f,
\
and his Duchess^Jbr a Dii)orce.
A. D. 1700.
[18S4
bnt only in the ctie of adoltery, for
L away their wi?ei, and marry ano-
( a rule wbieh eoneemed all Cbrii-
verTetor ever after; and for that
recorded by St. Matthew,
rds in St. Mark and St. Luke are
aken absohitely, but to be supplied
tood by his words in St. Matthew, as
her cases is clear ; viz. tbe tbief upon
baptism in the name of the Father,
loly Ghost, &c. whereof many in-
y be brought, as the destruction of
cc.
Christ's words, the exception con-
iile, and infers a concession, that in
' fornication, the putting away one
larrying another is allowed. It is
divers other his exceptions, which
n Scripture: For brevity, 1 will in-
lis one, viz. * Except ye repent, ye
ewise perish.' Upon %vhich text, if
shuf) else were to preach, I believe
not discharge our duty, unless we
the people. That if by the grace of
lid repent, they should not perish,
zpption here, tS f^k niti, unless, is
Lb tbe t Kings, iii. IB. ' None were
use except we twain;' they two
rere, others were not.
cepiions proceeding from natural
tacitly implied in laws, though pro-
general terms.
to the exception here, the wonis
aMe of any other sense, than as I
r'ed ; for except that restraint be re-
arrying again, the sense would run
soever puts away his wife commits
which stands not with truth or rea-
i it is not the dismission that is
but the marriage of another. It
p thfc plain drift of our Saviour to
Pharisees, that the marriage of a
p, after a dismission of a former,
3tber cause, except for fornication,
than adultery ; thereby inferring,
a just dismission for fornication,
marriage cannot be branded with
the Pharisee's question [Is it lawful
to pot away bis wife for every
IS not without a plain implication of
narry another ; which our Saviour
ng, gives ft full answer, as well to
eant, as what he said ; which had
erfectly satisfactory, if be had only
that one part concerning dismission,
{Other concerning marriage; which
wo evangelists express not, yet it
etched necessarily from the third;
i sure and irrefragable rule, that all
^lists make up one perfect gospel,
eniiats and college of I>oway ui^
sh doctrine, Rom. vii. 9. The woman
I an hnsband, is bound by the law
^d as kmg as he livetb ; but,
jkot is to be OEpounded by Cbrift^
9. St. Panl bath no occasion here to speak of
divorce, bnt of marriage whole aud sound, as it
stands by God's onlinance.
3. He s|»eaks of a woman who is under her
husband ; so is not she that is divorced from
him.
St. Paul useth this to his purpose of the law
being dead, to which we are not bound.
Nor is their doctrine more favonretl by 1 Cor.
vii. 10. * Let not the woman deitart;' as being
in her choice whether she would depart or not ;
but in the case of fornication she was to depart,
or rather be put away, whether she would or
not.
The bond of marriage is to be enquired into,
what it properly is. &ing a conjugal promise
solemnly made between a man and his wife,
that each of them will live together according
to God's holy ordinance, notwithstanding
poverty or infirmity, or such other things as
may happen durinf^ their lives ; separation from
bed and board, which is part uf their promise
so to live together, ckith plainly break that part
of the bond whereby they are tied to live to-
gether both as to bed and boanl. The dis-
tinction betwixt bed and board and the bond, is
new, necer mentioned in the scripture, and un-
known to the ancient church ; devised only by
the canonists and schoolmen in the Latin
church (for tbe Greek church knows it not) to
serve the pope's turn the better, till he got it
established in the council of Trent ; at which
time, and never before, he laid his anathema
upon all them that were of another mind ; f br-
hiddiopf all men to marry, and not to make any
use of Christ's concession.
Be<l and board, or cohabitation, belong to the
essence and substance of matrimony ; which
made Erasmus and bishop Hall say, that the
distinction of those two from the bond is merely
chimerical and fancy.
The promise of constancy and mutual .for-
bearance, if it hinders divorce as to the bond,
hinders it also as to bed and board ; and because
the same bed and the same table were promised
in tbe marriage contract; but the promise
does not extend even to tolerating adulceW, or
malicious desertion ; which, according to uod's
ordinance, dissolves the marriage.
Our Saviour speaks of divorces instituted
by the Mosaical law ; br.t they were no other
than divorces from the bond.
Tbe form of the bill of divorce among the
Jews was this, Be exiMdled from me, and free
for any body else. To give the bill of divorce,
is from the IIel>rew root ITU, which is to break,
or cut off the marrriage. ^^'ith this agree the
ancient canons, councils, and fathers of tbe
church.
Concil. Neocsesar. & £hb. forbid the retain-
ing an adulterous wife. Concil. Eliber. Amt;-
lian. & Arelatens. give liberty in such case \o
marry again. Clemens's Constitntioo, Ter-
tullian, St. Basil in his c luons, approved by a
general council, are for marrying again. Coo-
cil. Venet. If they many in any other cmk
thaa fornicatiooy they are to be
18S5]
12 WILUAM lU.
cated, aud not otherwise. Coneil
gives liberty to the ionoceut pirty to marry
after divorce. Coneil. Lateran. ^ives leave
for the innocent party after a year to marry
again.
CoBcil. Lateran. If any one take another
wife while a suit is depending, and afterwards
there be a divorce between him and the first, he
may remain with the second.
£actantius, St. Hierorn and Epiphanias, are
for allowance of marrianfe alter divorce.
Chry^ostom, Horn. 19. 1 Cor. 7. says, That
the marriaisre is dissolvet! by adullery ; aud
that the husband, after he hath put her away,
is nu lon((er her husband.
Tlieophylact on the 16th of St. Luke says,
that St. Luke must be interpreted by St.
Matthew. St. Hilary is fv.r marrying again,
as Dr. Fulk saith upon St. Matthew the 7tb.
The eastern bishops, in the council of Florence,
are for marrying again : Jiistiu Martyr speaks
of a woman giving a biil of divorce to n dis-
solute husband, widiout finding any iault with
it
St Ambrose says, a man may marry again,
if he, puts away an adulterous wife. Theo-
doret said of a wife who violated the laws of
marriage, therefore our Lord requires the bond
ortve of marriage to be dissolved.
All the Greek church to this day allow it.
Erasmus, Cajetan, and other papists: The
mi\ law, and the laws of the emperor are clear
for it : and the constitutions of our own church
of England, in the time of H. 8. Ed. 6. and
queen Kliz.
The practice of the Enijlish church, in the
Stat 1 Jac. c. 11. a;;aiust second inarrinires.
divorces are cxce(ited ; ami iii Canon 107. ii
is pro\i(le<l iliey bhull not many atraiii ; luit it
is not said such maiiiai^es are \oi(l, unly the
caution is fori'eited: Neither doih the Canon
speak of such separutioits, iv herein the bond is
broken, as it is hy t'orhication.
E%en the (.'anon- law allows man vin^ agiain,
in case a woman seeks her luihbaiid\s life, and
in case of a bond -woman, (iratian savs, in the
case of adultery, lawful niarriaues ought not to
be denyed. In the case of an incurable le-
prosy, it was the ad* ice of Si. Gregory to
Austin the monk, that he thai could not contain,
should rather marry. Bellarmine o\%ns,tliat
the bond of the marriage of infidels is dissolva-
ble; but the marriage of the taitht'ul, and of
infidels, is of the same nature : and J ustinian
a Jesuit, confesses, that it is simply lawful fur
the innocent party to marry again. And the
Kiimiui doi'tors allow a dissolution of the bond
of marr'a;;e, if the partus shuuid, after oi-n-
5Uinmatiun, transfer theuiseUts into a friary or
nunnery.
The Canons* which, in the case of adultery,
prohibit m.»rr\ing in the hl'e-time ot the ciillty
person, are contrary- to two actN of parliament
roadie 2^ Hen. 8. and :% and -i Edw. 6. w hereiu
Proceedings beiween the Dwie^ Norfolk [UJg
Wormat.
* Kef. Leg. Eccles. Tit. dc Adultcriis et
Divortiis.
no canoos are allowed that bt say way rm-
nant to the laws of God, or the Soiplvc, ii
king's prerogative royal, and ibe lUMs 4
this land : thirty two nersons were ti renew
the canon-law, in whicn renew, iimapk^
archbishop Craomer, the inooo«t pciM ■
permitted to marry again, acoordiagtBCMi ^
law aud cuoceasioo.
We have examples of iodi narni|alilL
4. of FranGe,aodH.8.of Eogland,MllH*
joy, lord Rich, bishop TbomboraodhaiA^ i
Ters others. And it is obserraUe, tbl iite n
caseofthemarqnis of NortbaniDtoii, 5 Eiff.i
who had been divorce<l for bb lidj'c Mmj^
aud married another before any ad of fA
ment maile concerning it, an act vfaick fmi
alWrwards (only two spiritual and twotMfad
lords dissent mg) declares, be hsd bcM mE-
bertv by the laws of God to iDsrry,aiAil
lawfully marry another: where die KtiMj
festly supposes, that whatever hid cMm
for law till that time, was foid,askii|C*'
trarv to God*s law. ^_^
'fhe roost oonsiilenible men of the refiM
churches, both at home andabrosd,tretfM
opinion : Grolins qnotes Tertullisn, io tAn
time it was lawful for the iunocent f^^
marry.
Lancelot. Instit. Jur. Can. ickDoeki|4
that dirorce is a dissolutiou of the mnii^
Seldeo, who is not hkely to cnotndidB i
laws of this kingdom, maintainetb, th>f ■''
riage after divorce is Io be allowed ; •"JI'T:
particular Dr. Hammood doth notcortii*"
[ him, but is clearly for it.
The opinion of Aujesius deserfes to be* j
down at large: *• Marriaije, says be,cinw**
dissolved h\ men at 1 1 leir pleasure; tD'lf*'^ |
reason, as it is considired simply and abiolBWJi )
it is ri;rhtly said to be iiidiss«)lvabW, been* i
marriage is not only a civil, but tJi'"**'**
junction ; and is also of that nature, ihim^JJJ •
. not be dissoUeed without detriiorut of «•»
. party : vet it is not st» disstdiable, butii nuj
he dusof* e«l for a cau>e w hich Gwl aijpn-'rfjj 1
; j«ist ; for the indiss*dvabdity was r»ol iDsW**
tor a punishmtut, but for the comfort of »••••
' cent persons ; and it admits aa ^^^fJJJJ
' wherein God ceases to conjoin. By "'jjy.
two are made not to remain «ue o^'
11 once it is that a conUgious *ii*^** ^?L
cau>e of disstd\ing luarriage. Bv •"•'"^
the very essence i.f the contract i^ ^^'^^J^'u,
latnl; but the contract ceabuig, the ^ |!
. pending on the contract necessarily ^**??*l
IS against all reason, that all mairimooi*i /"j
ties should l»e for t vtr taken away, \eill»*J'*
, or obliufation to those duties >b'ouid f<*^
The words of our Lord, Mat. r. 33. and t*^
i have no distmction or limitatiuu ofthep*^
' away, but simply and absolutely »PP'*J^
putting away, tlierefore they approve of pj'J
i away, not partial, i>r t«» a partkulsr fF"*
froni bed and U>ani« but total.*' ^
None are against the reformed ^^JJJJl
Dr. Howson, Mr. Bunny, and Dr. M^^^
Dr. Ilowson was a profeiNd adro"?
mul kis DuehesSf/ora Dhoree.
A, D. 1700.
[IS3S
ijMldii, who was a laprcal maiotainer of
ueh of England a^inst all the poinu of
,iiid particahiiy in this.
Fiylor, bishop Hall, Dr. Fulk are for
msrriam ; no anUiors against them
> ooiiDcal of Trent, and those of the
of Rome ; whose credit b only saved
« of our church who agree with them.
I the difference of explication between
ibrose, Origen, ami St. Austin, a new
dif orce bM been thought of, from bed
rd ; but this divorce, or name of a di-
ras unknown to the Jews and ancient
tns.
I flo much before, at the first and second
of this bill, that 1 was in good hopes to
d no further occasion given me of an-
any objections against it now; butsee-
nrs new arguments have been studied
med against it since that time, 1 shall
leavour to satisfy and clear them all.
he first argument against it, is, that the
ion from bed and board doth not dissolve
J of marriage. To which I must reply,
before, that this is a distinction without
mce, newly invented by the Canonists
lool-roen, and never heard of either in
or New Testament, nor in the times of
i«nt fathers, who accounted the separa-
m bed and board to be the dissolution of
1 itself.
hat first institution of marriage, that
ay be one flesh, is by adultery dissolved,
he adulteress makes herself one flesh
pther man, and thereby dissolves the first
' her marriage.
he dgectkm, that if the bond be dissolv-
afterwards, if the man or woman be
led, they must be married over again, is
iMsry consequence, no more than it is
"aoo Mptiied, who may break his cove-
nd renounce his baptism, and yet upon
pentance be received into God's favour
toe of the first covenant, without any
ptism. Suppose a witch, who, they say,
« compact with the devil to renounce
itism, should afterwards, by the gnuse of
sriously and truly repent herself of the
Bcss; I do not believe that any body
lake npoQ him to baptize her again:
a priest should renounce his orders, and
Wk, aud yet afterwards repent him, and
intotlie obitrch, he need not be re-or-
aseoood time. The case will be the
■ marriage.
said bentofore, that the Roman doctors
il this dissolution of the bomi, when the
id wife, even after the consummation of
gs, would transfer themselves into a
or a noDoeiy ; but because it bath been
lanbted, that no authority can be shewed
iparticiilar, 1 shall here shew it out of
I amstiUitions of the church of England,
id,* ID the case of religion, that is the
iof. Will. Lyndewode, sive Const. Ang.
■ Tcr.mlktMiusscparentiir. *
true understanding, that to wit, either of them
betaking themselves to relig[ion before carnal
knowledge, the bond of marriage be dissolved :
But if both enter into religion, and make solema
profession, then such marriage is dissolved,
even as to the bond."
5. It hath also been said, that if the bill pan, ifc>
will pass against the church of England ; which,-
I confess, I do not understand ; ror the church
of Enghmd is within the kingdom of England ;
and if the laws of this kingctom be for the bill,,
and have declared it by the assent of the king,
lords and commons, as in the case of the mar-.
quis of Northampton was heretofore declared,
in the time of idng Edward the 6th, that bv the
laws of God the innocent party was at libertj*
to marry again ; certsinly the spiritual lords,
as well as the temporal and commons, aro
bound to admit it : And I know not why tliej
should be called the church of England that
join with the. council of Trent, and plead so
much to uphold it, rather than others that join
with ail the reformed churches, and plead
against the canon of the church of R!ome,
which bath laid an anathema upon us, if we dw
not agree with them.
As to the supposed inconveniences that will
follow upon manying sgain:
1. More inconveniences will follow if thej^
be forbidden to marry again.
9. The lather would be in an uncertainty of
the children, if they should retain the adul-
teress.
3. There would be danger of poisoning or
killing one another, if no second marriage wero
allowed.
4. Where the parties should consent to new
marriages tor their own lusts, the msg'istratea
have power to over- rule such practices.
5. If they be kept altogether by divorce
from marrying, it would occasion the innocent
party to sin.
A little before the main Question about pass-
ing the duke's bill, the ducness's agents hand-
ed about this paper, among such as thej
thought to be her friends:
CASE OF MARY Duchess of NORFOLK.
Upon the marriage of the duchess with th«
now duke of Norfolk, in the year 1677, her fa-
ther, the late eari of PeterborffUgh, paid as part
of her portion 10,000/. and settled on that mar-
ria^ lands of near 1,000/. per annum, the re<4
niamder of which, on failure of issue, was !!•
mited to the now duke and his heirs for ever ;
and the esrl after his and his lady's death, se-
cured to the duke the forfeiture of Drayton,
worth 10,000/. more ; and the duke received
also, by agreement, 1,000/. per annum for
tweuty years out of the earl's estate, besides
very rich jewels, plate, and other tilings of
great value, which the duchess brought with
her into the duka's ftonily: And gmldebtt
Ittirctlly tt Dr»^toii in Noriliamptonihire ;
and ai the time «kt ibe ret i^iuHou ihct afttin re-
tiree] la Fnuice, where ibe conliiiued till she
liettrd of her father^fs iinprisanmcnt in the
Tiwer, anil then catiie back tn Ennrlaiidf nod
lived privately, titl her father oblaiued his )i-
k^rty, when she rame home to him.
Thai the Hth of Jauuarj, 1691, the duke
wia|ira¥ ailed on. Uy the ioMit^tion of her ene*
Riies, ta exhibit a bill id the House of Feerf^^ to
II16 saiTie effect with the bill now depend in j^,
and divers wittieiksea were examined on both
aidfB ; after wbidi^ and a long- «o(enin debate
aod due contiideratian bad by their (ordKhipa nf
Ibe witnes»t«, and what «*a« sMrorn by thetn^
alie 17th «t^ February, ihey were pJeu**^ to re-
ject the hill uithoiU a seconi) re<tiltiijt^.
NoCwithstauding^ which, the dake was a|»iiiu
pvavailed 00, tJie 8^ of Deoetnlier, 169«« to
axhibil a second bill in the House of PeenB^ to
tile same efSed with bis first; whichf after
•ereral debet tes, was the !}d of January follow-
ng a^in rejected.
Some linrie aflerthis, and for accommodating-
all dift'ereuces between thein, prooosaia were
made to tlte duchess, which, after W^ agita*
tioii, OD the 28ili of April, 1694, were reduced
into wriliuft^ and executed by the doke and
&e pf^mbile of which articles is in
i ffOida following : ** Whereas direrse coo-
B, debates, demands, and Boita of seve*
ral natures have fitr some time since been af i-
tated, and continued,, between the said diilce
and the said duche^ij, his wife, Sec. uttto all
nrhich it is at last held fitting (it being oondu-
cihla to tJMBy vvisiieetlve niiieK and eaae^ ta bave.. .
ecelemaaiical court, ^
rtaltn she is entitled
day of pebruiiry lai^t,
Peers the bill
duke's marriafs
bling him to
proceedings were nitt vi
(a Frencii rtKitman,
lately brought from
with citamiried agtiini^
facts suppi>se<l to be
aiooei aad hng brft\
[, and on w
, that It
muke her delence, as
the proceedings bad
to the kaowD la
Tbe^ndiica
aity af cociiplyj
House of Peers
she could, made
a week^s time
and opon exami
witneeseat, many conti
whereof follow, as doll
tions taken in writin^j
the Hoai»e of Peers, *
For Hauaeur tlie
chess was at the Coel
he came to lire with i
that he oaatiniied thei
af^er the dncbess k£i
Vaiixhall.
Vauefts l^»e eookmaij
to sir John when the
4ml kit DiuhtUtJbr a Dmoree,
A.IX 1700.
[\9et
t wen erer tbougbt on for wit*
swearg, He retiinied agtin to tir
' 1692, beings oftleB sent to by
Bayly, enother of' the flake's wit-
ira, he dki not return agmin to sir
» years after he went away, Bayly
l>eing all that time, and three years
^ant in the house.
, That tliis Terr summer, 1699, to
er term, the dnke hrooght bis ac-
t sir John, which was tried Mi-
rm 1692; at which time it had
ikely, if sir John had beliered he
done him any harm, he should hare
Holland, rather than ha?e sent for
specially considering that this lel-
rds swears sir John swore in a rage
would betrav him.
being asked, who tent for Vaness
ered, that aller he had premised
id lord Howard to speak the truth
snew, they desired bim, if be met
lesne her to come OTer, and speak
what she knew.
g asked, how long aAer he met
swered, aboot twelve months since,
masked, when was the first time
her about coming over to speak the
rered, it is about a year since.
r asked, how long it was since they
come over? answered, twelve
einar asked, whether she was not
n Holland to be a witness? an-
koew nothing of it till eight or nbe
rears, she was sent away on ac-
trial.
Peacock, Hawksworth and Knight,
Dts of the duchess's, swore the
ned hrr away before the trial, for
iipany with Dutch solilicrs ; and
ar a new cookmaid before the trial,
rtwcars, he had a key of the door
he i^ark, and could come in when
owns he knew but two of the ser-
'hereof is long ftince dead,
the duchess's servants swear, they
any body had a key ; aiidthatifany
n, tbev must have known of it.
rove the shutting up, lyoltingr, and
i door every night, and o|>eiiing it
ing ; and but one of the servants
Birer to have seen him at the door,
! rang the bell ; but came only to
ywoman of his, and 'to carry let-
ind, and brought answer back to
I not admitted beyond the paniagc.
and Vaness swear, they saw the
sir John in bed together at 3IilU
eaa's woman swore, she has put
to bM^ mA Iftkeo Iwr up t? cry
9
night and nomiag scvierai yem, and n^tvr
saw him in the bouse. And two others swear,
tbey Were constantly in wiiting hight and
morning, and positivdy deny any knowledge
of any snch thing, aed say, they never saw
Hauseur there ; mmI that Vaness was nefer
admitted up stairs, she was so dirty a creature,
mocb less to dress or undress the doohen, as
she pretendeil often to hav« dose.
Vaness swears, she ooold not tell the ptoow
she has been at then six weeks last paat
Whereas,
Mr. May, and two other of tlie duke's aer-
vants, swear, she has been fouiteen days in tile
duke's own house, with the fall liberty of the
house.
Vaness being asked, whether she ercr toM
any body of tlw occasioa of her going awwy P
she swore, yes, she told it to a great HMUiy ib
Holland, and not here.
Yet being afterwanls asked, whether she
ever discormd that she was sent out of the
way? she swore directly, no.
These are some of the many plain conte*^
dictions and disproofs of these evidences, bew
sides the great improbability in their own na-
ture, in several things sworn.
But it is also to be noted, that Hauseor lefl
sir John's service in a disgost ; and so it is
prored by Bayly, another Sf the duke's wit-
nesses, and that what Hauseor swore could ba
nothing but spite and malioe : Yea, it is proved
on tbe duchess's part, that he swore he would
find a way to be revenged of him, and that per-,
haps it might not be long first : and Mr.
Strange, Mrs. Pitts, and her two maids, who-
coukl haye deposed yery materially for the
duchess, refused to appear, though often sirai*
moned, being persons not in the duchess's in-
terest or power.
This Hauseur has been out of jflace ever
since he left sir John's service, April, 96, and
is so still, as he swears, and so in oonseqaenoo
likely to be necessitous.
Note also, that Hauseur swears, sir John
gaye him seven guineas to pay the chaiges Of
himself, Vaness, and another, '^which were or-
dered to bei kept private till they could be
shipped off, and also for their passage into
Flolland, which was in time fiom the 8th of
February, 99, till Easter.
W hich does not kM)k 1 ike a bri be for a secret of
this nature, being hanlly sufficient to maintain
three people, and pay their lodgings, for tWQ
months.
Hauseur would be thought a mighty confi-
dant, so as to have a key to the duchess'^
house, to come in and ^o out when he pleased,
and ^'ct, as well acquainteil as he pretended to
be with the house, and the duchess's bed cham-
ber, he could not tell on what floor it was, nor
what furniture it had, nor whether wainscoted
or hange<l : And when he was asked, which
way the windows of the bed chamber looked T
he trifled in that question, and concluded, be
couKl see the water, but was afraid to go nesr
the window, for tar«f bsinf diseoTered ; *«iid
mmB
BP^
P
1<J343J 12 WILLIAM IlL Praceedittgs hiwem the Dtth ofNorfS '
^el lisd no scrapie of comiui^ info ibt boUic
with lib key, at any tiiise.
Tbe»e lhtP||5 Wing: f^bierted,!! rauilbecon^
.ililetreti) ih&t ihe tacts aow iu effect cltargtiil
ftguiiisl th? flucbess are su<fs[estecl to be dune
ttjiiiiy remrs vince, a ad were ftcbated and oon-
aidereif b«ibre l+ie peers* betbre the rejeciion of
ihe two first bills, anil long b*?fore the a^jree-
IneDt for puttiag af» end tn aJI controversteji a oil
,«leh<lie». ffow it li very bard to put the duchess
|o ifif^oimt flgaio for tboise very facts^ cousider-
in^f thaiafler eig-ht or nine years many people
are dead, oibera dispersed ^ aod not in a Utile
tiiue to be fouivd out, and circiiraslauces of
time* and places (which io the nalure of ail
the^e ca^es is almost ail that in left to discover a
fabity) fbi^0t.
Tbe ducbesi is also under the nnaToidable
tjecessily of proring a n entire against down-
right swearing', and that vviibout any matter
introdtictory ; and also by two oiean ^rvanib^
4he one turned oiil of her place for keeping
eotnpany with tbot soldiers, and the other
Jeafing hh place in dtsg'ust^ k^c&use be conkl
noi bit?e tbe play mone-y.
^ I^Iastf rs are already too mucb in tbe power of
Uieir tervaots : aod if they charge their masters
with aidulteryf felony, and even treason, it is
,iiol easily iti tbejMwerof tbe master u>ddend
bimself against clownright swearing' ; servants
.liaring ihoiie opp4>rteniiiei of tht^ knowledge
of limes, and places, and company, wbicb
oanoot he denieil or avoided « and whicli others
iiave nt>t ; whtfreupiin tbey may fmme iiml
build fitlsa evidence, and many times are of ill
, principles and de^pcrute rortunes, and of lem-
,per^ very reveni{elul ; so ibat whoever turns
.away a serv&ntf be is in his power for his estate,
^bonour, and even life iti^lf ; and there fore^ for
tbe safety and freedom of families, in other
countries, tbey are not |iemiitte4 to he eirideoce
sg^aiust tbeir m^tcrsj in any tnattef crimiosd
whatsoever,
Note aljso,that tbe duchess Ihiokssbe, as an
BnjjfliMh «uhject, haSt by Ma^na Cliarla, the
fame rij^ht to a trial in the W*g^\ and ordinary
.Hay of Justice, as tbe rest of the king's suli-
jects, especially considering that there never
yet, was in England one precedent of a bill ejc-
hibitetl in tmrllament to dissolve a marriage at
the firat instance, without any previous pro^
ceedings in iJbe ecclesiastical courts, (whicli in
these cases is tlie law of the laqd) and not
.fthove Ave or six bilk in above ^00 year^ ever
Passed tn dissolve mania j^es, or make second
inarriages good, even afler there ba«l been a
dirorceiaihe spiritual courts, and those bills
too iu cases generally where tbe husbands were
vitboiit any recrimination.
Ho impediment appears why the duke should
not have endeavoured a divorce at Uw bcibre
he had attempted a bill to diss»olve the mar^
riage ; for any apphcaiion to tbe legislature
for trial of matters nf private right is improper,
Weiuse tliere are projier judifmlures ihnt give
that remedy tbe law allows.
To aik acy thtog of ihe l^isUlurei in pnrate
eauses betweeii party and ptrtj, b«|
ihe known laws in force give, teetaa
pmper ; because, ^
1. It is to make a law in tme pern
whieb is not the law m auotbci'^.
3. It is to retrospect actions, laJ
!act, to aogmeal or alter the fieasl
laws %re certain ami known, tliatjicT
conform their actions lo litem .
3. The courts and tbriES of law tj
tbe subjects right with the laif , aad
cation Lo tbe legiilature takei awt
right of form and charging ; when
tainty in ttnie to aotiwer, and eXic
witnesses, and other legal d^l'eoca d
canool be denies] the meane$»t subject
The consequence that short tiiil
ways of proct'Ciliogs may bttve oa t
ments of estates aud familiestf m&jr W
gerous; and thuugb (he duke ot'iVu
[lassed tbe House of Peers, ytX agie
of the Peers both spiritual and tfiit
tered their protest a^inst its yumg,
reasons for it
It ought to be uo prejudice to tbi
that the next heir presumptive tn I be
not jet appear to be a PrGi««luit
when a bill, which hath latdy pi
Houses, is become a hw, tl is n«< li
Qoble family wdl be widiout a Frutei
bead of it.
If any of the wilneises formerly «i
the bill in 16^Q, be now again |iniJ
humbly apprehemled, that m tW '
ibeir iestjnsony they then fave w
over til row n by a greater number of
so it will be again, Ihougb under the
iage of the great dbita nee of time.
Proceedings m the Uot^sE or C
JlfdrcA ig, 1700.
The reading the bill, for diss
marriai^ of the duke of Norfulk, i
time, and bearing counsel as well oi\
of the ducbess against the bill, a^ o
the duke for the bill, being the order
helbre the counsel was called in, to |
inconvenJeoce of people crowd iuif
i louse, tbe House made an ofik
none hut the counsel, solicitors
ties sboiild be ca1le<l in, aud thi
n esses shoutd have notice to alteoi
readv to be called in, if tbe B«
thiol: fit.
Ji was also intimated. That if lilt
duchess did think fit to come ialft^
tbey should be accommodated wilbi
being a resptfct shewed to the o6i
tbey come into the House,
Jind then the countel, and aofi}
parties of both side^ were calMM
the bill was read to them.
jInd tbeo the lady dueheai^ I
Tbe conQiel thftt app«ftr«d iren|l
A
1
and his DuchesSfJbr a Divorce.
A. D. 1700.
[1346
^ Mr. Dodd, Dr. Pinfold, for the du-
Bf r. Sen. Wright, Mr. Northey, Mr.
J, Or. Oldish, for the duke.
Mr. Spedcer tlien spake to this effect :
Speaker, Yon are here, I see, counsel
li sides. The House have ordered, that
ly duchess should be heard according to
lyer of her petition ; and my lord duke
lewise an order to be heard to make good
I. 1 think the petitioner is to be heard
9 make good the allegations of her peti-
and when the House have heard you
as to that, they will consider whether
rill proceed to hear the allegations of tho
ideont
Tkomai Powys, Mr. Speaker ; with your
',8ir, 1 am of counsel with the petiliouer,
icfaess of Norfolk, asainst this Lill th»t is
efore you ; and I beueve I may say with
iHurance, that this bill in the manner it
' brought before you, is the first that ever
ttempted in this honourable Honse. It is
Be, that sereral years ago this bill, or an-
of the same nature, was attempted twice
other House, and as often rejected ; but
s true, at last it does come from thence
, but not without a protestation there ; and
Bbty hope that you will take notice, that
I a bill of divorcf3 in parliament, in the first
ee without a previous prosecution to ez-
!tbe fact in any of the ordinary courts
lave authority in these matters.
B a bill not only to divorce the duchess
I very short warning, who hath been a
venty- three years, but to render her infa-
to all* posterity by actof pariiament, which
nut to be the greatest misfortune possible
il aov person ; and at the same time it
from ner the legal trial of the fact whereof
I iocused, and which she hath a right to
! laws of the land, sure as much as the
at subject ; and which we don't appre-
ibe has in any wise forfeited ; nor is tliere
Baton assigned, why his grace has not
^leased to proceed in the ordinary course.
N Sir, you will take notke also, that this
trnth, nothing but a suit between party
krty. It is merely a cause matrimonial
% husband and wife, begnin originally in
»D8e of Peers ; and as hitherto the he-
if of causes between party and party, in
ouse, hath been strongly opposed, so I
t will be thought reasonable tu do so al-
beeause it de|>rives the subject of that
defence due to him by the law of the
If this was always complained of, when
loeedings were in a judicial way, surely
mat deal worse to begin there a private
between party and party in the Icgisla-
ly. 1 can see no manner of difference
sspect to the loss of those c^reat advanta-
t party is intitled to, only' this seems
to be the most against reason.
this is a summary proceeding with a
k It began but the 16th of February,
at a week's time given to the party ac-
L XIII.
cused of so high a crime, and of so great con-
sequence to the partv accused, to be heard to
it ; and though perhaps we may with reason
enough find fault with the tedious proceetlings
in some courts, where appeals and writs of
error are justly due, as where property is weH
fixed, it must needs be reasonable : I 'say, from
various causes, though suits in the ordinary
courts are very tedious ; yet I am sure a sun:*
mary way of proceeding without due warning,
or any certain way of making defence by any
k^own rules, and without oath, as here with- .
out appeal, without any possibility of retrieving
the matter again, with gpreat submission ; and
if this must te for all that one has in the world,
such a summary way is a very terrible thing.
I would be glad any one would make it bis
own case, and think with themselves how they
should like it, if their life, estate and all they
had, were put upon such a summary way of
proceeding. It is true, in some kingdoms,
where the government is arbitrary, the pro*
ceedings are summarily, and most commonly
they go together : and if we were in a plact
where the judges were infallible, and thert
were no false witnesses, and truth could be dis*
covered at an instant, a summary way would
be best ; but since men are fallible, since ther«
is passion and partiality in the world, sinee of-
tentimes there is notorious detections of per-
jury, tend several things are difficult to be dis-
closed, and require a reasonable time for exa-
mining into facts ; from thence it is that there
are settled courses for determining all ques*
tions in England between party and party;
and there are known rules and good methods n>r
the relieving against any ill judgment that is
given. .
Whatever you may think of this particular
case of the duchess of Norfolk ; the exampU
is of mighty consequence to all parents, that
perhaps mske hard Mh to give their daugh-
ters considerable portions, and may think they
have married them well, and made provision
for them and their children : 1 say it will b^
hard, if their daughters should be sent home to
them upon a formight's warning, and that
witnesses should be examined against them
without their having notice so much as of the
^places of their abode ; and a thing should be
determined before the witnesses can be well
known : and it must be; ai^reed to be of preat
consequence to all collateral heirs, if marriages
are so easily and suddenly set aside for want of
issue; which I find to be one of the causes as-
signed for this bill, and that it might be in a
summary way, perhaps before thoy can well
hear of it. ram sure, this is a matter of too
great temptation to be put upon lupu that may
grow wenry of their wives, and desire a better
fortune, or desire change, or may be movetl by
a thousand reasons we cannot think of, to re-
vive old quarrels, and think of things long since
passi'd, if you will see such a precedent of di«
vorciiig in such a summary way.
TIhs is sure of infinite concern to us in
higher matters. A bill of divorce of % wonaa
4R
12 WILLIAM III* Proceedings betwren the Duki tfKorfM
10 (wiHmmEDt, w if bout a leg^l trial » is just tlie
wmie ilnng as a bill ofaUaiiider against u man
for ti^ason ; ibe one forfeits ibe estate, cormpts
the blood, apil taki^a away bb life, and the otbcr
does very little Jess ; for ] lind, according^ to
the bill, il is to forfeit ber joLntiire. to defame
ber peraoti , cor r 11 pt h er r^p aiat ioa ; and t ho ugb
it leave b«r life, it is k ft «itb iti4iny, which la
worse ibat) deaib | and in a cast of this |%h
morceDt, sure you will be careful how you
alter the course of tri all. I beteech yuu, Sir,
will not the reason be th^ same, that a bill of
attaiuder may be brought against a man, aftd
Ihat wi1n«sies p gainst him may be fetched
from bevoridsea, whtch he had fmmerly dts-
L charge<r fVortv his service, and put th« other
Mile to prove tirhatis always very difEcult, the
negative, to uk^ke his defence, which must
needs rcjiuire a leasonable time for the fnaking
out of circumstances, and laying evidence to-
gether ? Where will be the difference between
proceed itig against a man for his life without a
trial, and proceeding against a woman for her
jointure, wnere b^r name, family, and reputa-
tion is concerned, and perhaps her children,
the legitimacy of whora must come it^ qucs«
tion ; and in a case, where the pen^Du by no
behaviour of hers bath furfeiteil such a trials
nor the person that prosecutes this liill, cannot
shew, that be bath beer:i obeitrncted iu his pro^
eecding in the oroinary way ? I ueed not take
notice of what f:^\Qry body k'noffs, that we have
a happy constitutio^v if we can keep it ; efory
man can call hit wife bis own, and hia estate
bis own, because it cannot be taken away but
by legal tiiat ; hut if you w\\\ go into ibeie ex-
traordiuary resc^rts, when the courts and the
law is open, withiftit any pre?ious preparations
for th^it mailer, by baring a tair examination,
that the party cannot say there u^ a snrpriize, I
know not where it will end ^ and thouc:li in one
case it may be desi ruble, that there should be
an extraoi^ioary relief: but ^ill this go no
farther f Can any body sav tb&tf
That which we find in Magna Chorta is not
to be forgot, where there is so much care in the
■everal instances of it for the preserving of pro-
perty, and the right of trials, * Unod nullum
* dc^truatur, nee super eum ibimus^ nee super
* eum mittimus, nisi per legale judicium pirium'
' iuornra rel per legem terne/
Why, iu this cajse the ecclesiafitical law is
lex terrtE, And if that be to he taken away
without any reason, why may not the law in
any other case ?
We have, perhaps, in time of great emer-
gency and public ditficultiea, bad some ei^ra-
nrdinary laws grounded on extmordinary rea-
sons ; but now we are in a time of settled
peace, when there may be a jiitt deiermiuaUon
according to the lawoftheUnd, t cannot sc«
any reason for this proceeding, no, not in thi:^
pariicular case,
I would, Bir, with your favour, take notice
of those few in»taucet of this kind, that have
l»een in England by act of parliament^ and m
what maDoer ibey bafe procieeiicd.
There hare not passed hii^l^ sis ii
dred years; I thioV I may chullcn^
the other side to shew so great a m
those I have I shall quote: but \\\ff
in another manner than this has dont.
It ia tfuei where persons ba^e hul
in a proper court, and wit n eases hif*
min^, and sentence tiutil been pri
and \i here the jiarty as to the f^t
concluded according to the h\\ at i
when all this hatb passed, sojm
there have been, that aftcrt^sink an i
liament has pa&«ed to fitrc <^gtbea the
and to carry it farther than th« ^t
court wiiralZow, even lo lhe*litK
marriage, and enahling the inawtni
marry a^n ; but you will find sll
are founded and built upon the licatm
courts, and recite those sentenits i
inducement to the pasdng of those tn
cmv^ leate jnjrt to take notice: of th
firat we hndj is that made in ihe t
niai'(|uis of Northampton, which vrai
He was married to a daughter of
E<i«es, and she eloped trom htm, so
secuted in the ecclesiastical courts
was sentence againa.t htr of divon
marquis, from hence, took upon bic
adiiughterof the lord Cobhamj am
years marriage of her, he oblain«d
parlianieut to ratify the se«oa4
which act recite a settlement ofdif
ecclesiastical court.
This toai its rise from examiaatiai
to law ; and that act of parliamctiiif
upon it, and recites it an a previaui
cesaary to induce that act.
The ne^rt that foUows was tbe hm
the lord Ross, afterwards earl d
though there jierb^ps was ^ f^reAt i
of fact a^ cnn be prcteivded in tbis d
did not stand iin[reiicbed of auj in^r
havjonr ; hut even in that case the
the act, folio wt!d a divorce in ibc ec
court, and I hat pa^eil with ^nch ditB
it was four }ears iu hand ; it Wgan ii
and was not pass^ed till ^vcnty : I b
of it, find it says. That forssfiiucb i
commonly called lord Ros^.
And it procee^l^ thereupon to cn^
marry again ; but this, 8ir, could no
two acts of parliament, besides the*
the ecclesiastical court ^ for he Rr
court to declare the children illcgii
then in the year (70) the parliament
act.
] know nf no other, till we coa
that buppeneil within our memorj
case of a person of great worth, tlM
will give no offence when I cite ibi
h was the case of Mr. Lnkaoar
been grossly abused by bis wifct kf
and etpen aduhery ', out ttie act i
went no farther than to disable ll
born while she lived in opt^n jdulltifl
act recites a sentence of divorcer In
of it, and 1 crave leave I may rtiJ <
1
and his Duchess fjbr a Divorce*
A. U. 1700.
[1350
reciten that Mr. Lakenor's wife had |
in her hasbaDd.
vas indeed a famonscase not long ago,
that was taken away by force, and
to be married, and an act of parlia-
le afterwarda to declare that marriage
Old ; but even there was a proceeding
th a witness. The person that had
»med, was actually indicted and exe-
was not there to make a divorce, and
been a vain thins to have gone into
aal court, where there was no mar-
»* it was. only a law after the fact de-
by way of caution, to give the more
m that that marriage was null and void,
e last T know of ^and it may be proper
> observe hew quick these people come
ras that of a noble earl, that did obtain
ament an act for divorcing him and
it is the case of the earl of Maccles-
It in that case it will be proper to take
YOU, that there were previous proceed-
be ecclesiastical court ; there was a
libited against her, a charge upon her,
ssses examined, and she had a fair op-
f of making her defence ; there was a
ad a long proceeding against her, and
ition of nor, in order to a sentence of
inicatioo; and then there came the
tition into the House of Peers, setting
i there bad been such a proceeding as
that she stood in contempt, having
lecuted as far as that court could go :
examination of witnesses, in all the
sve heard of a divorce by act of par-
ihere bave been proceedings in the ec-
al court ; this was the way of former
now we are beginning where the mat-
t to end.
vr tlie first application is to that place,
■11 these instances (as I think it ought
IS the last resort. It is true, this nie-
f not please the duke, for we know his
a haste for cutting the knot asunder at
the legislative fiower; but i hope,,
se precedents, you will think it more
le it should be at first untied, or at
iened by a jndicial proceeding. If you
» not see how in justice the parliament
' the like remedy the next sessions to
r that may be in the like case ; it may
rse, for here is no pretence of any sp i-
iie. Can the parliaroetit of £ngland,
we take our measures of justice, deny
remedy in justice to any others that
e like case ? What is it tbat guards you
infinite application of this nature, but
p persons to take the ordinary coarse
i to come round about to the parlia-
1 the last remedy, to carry the sentence
farther than the ecclesiastical court can
if persons can come up directly hither,
t to think vour lobby will be crowded
ItKNiera of this nature the next sessions ;
Ihe sessions now are long and frequent,
rie business may be so great as to ob-
I other business ; I am sura a commit-
tee for adultery would have a full employment.
Let it be considered how strange it would bet
if some poor man, upon this precedent, shall
come and make application, and tell you ha
stands in need of such a bill from the condition
of his family ; that his wife plunders his house,
sells his goods, and lives in adultery, and prays
this matter may be examined in a summary
way, because he is not able to go through th«
costly course of ecclesiastical courts, and be fa-
voured with a divorce ; would not this poor
man's case seem to have the like justice, or
possibly more ? And yet if such a mean man
should come with such a petition, perhaps it
would look strange ; but yet in justice there is
no respect of persons ; the law in England is,
* unum pondus et una meusura ;' and if thia
should be done in the case of a great and rich
man, and not for a poor man, they may say
what has been said by some, ' That our laws
' are like the spider's web, which only hold the
* lesser insects.'
Shall those tbat expect the best foitunei andl
greatest advantage by marriage, not undergo
the bad fortune of marriage too f 1 am sure if
this be so, it is a privilege of peerage never
thought on before.
You may see. Sir, by this bill, how prece-
dents ^row ui>on you ; at first in the case of the
marquis of Northampton, it was bard to get aa
act after a divorce : so it was in the case of iny
lord Ross ; the last sessions in the cave of the
earl of Macclesfield ; it went farther there, be-
cause there had been a previous proceeding in
the ecclesiastical court, and his lady had ob-
structed that sentence, that act passed before
sentence ; but now we are come to have it done
without so much as a trial to get a divorce m
the ecclesiastical courts; to have all passed at
once in a summary way, it will be but to peti-
tion the parliament, and all shall be determined
without a possibility of being re-hcerd.
1 know nothing can be said on the other side
With good reason (unless that which I heard in
another place), why they should not go to the
ecclesiastical court, which isj that those courts
cannot divorce ^fiifiCtt/a matrimony ; therefore
it would have been a vain thing : this may be
a good reason for them to come to you afteir-
wards, but it is no reason for them to come here
at first, unless they would say at the same tin^,
that every thing ought to be begun in parlik-
ment, because it is |)ossible every thing mav
be brought to the House of Peers at last : wiU
thejT say that all ejectments ought. to be begun
originally in the House of Peers, because tA\et
the |>arUes have been* at great charge and
trouble in the courts below, they may be
brought thither bv writ of error at the laslP
This would have been a good expedient, in a
cause lately where a deed was tried over and over,
if the persons concerned in so many verdicts,
had -once thought of having begun in parlia-
ment to have had it settled, whether it was a
just deed or no ; if this be the rule, it would be
well it were known, and made to be the law of
the kingdom; for tbat law will be always
r
12 WILLIAM UL
I
t^ak«n#?tJ bard whtdJi ts made in one case, if it
rniiy uai fie bad m another ; tbe law of Euy-
larid doe* eo ibroug^iout, and if it be law for
me k i« lor aooliicr. I have but one thing
wore to lay befort? ^^oti, apd that »eerua worthy
€f your cviisideratron, besitks ftU tbat I ha^e
YiMi obf^rf e ibe bill ir general, without te-
•Iroiut ©riJine and jjkce, or ile*criiition, of cir-
#omit&n<'e« reladof k^ the fact: now. Sir, I
mniil take leave to an^u^mt you, that m long
•go as April 16^4, bii jfnice the duke, who
©{m»Mlain«ortb(K rnait^T, su Jf soiue misfiiflime
had WnJlen him, hurinjf madt* f firmer corn-
pb^iits and atleitipf* <Vjr fylitwiuing whftS be now
de^ires^ did at hm »ri ApFil 1094^ not stiddetily*
Itiit by advice of coutibH, with hi« Otend* about
him, afti^r a Joriij time of nyitalion, come to
liHifleft with Im wife the diiebess ; of which (
omie Jenre ooly lo read \ke iireamhle.
Th* urticle?! m\* belwi-en hw ^^riice the duke
of Norti>lk and ibe Earl id" i^elerhoroogb, and
If in ibit'rrfore deterniined by tbe partie^^ and
am'^d a« folio ii'eth ; ami therfupfm the arti-
cle prr»cenl to seitle every tbbg between the
duke and duehefs to hiso^iii Batisiaclion, and
«CL'orifing to his own dt-she: hb grace bath
reaped rhe bencHl of tfiofc* articks^ by having-
reeeirrd a gri-at sum of motipy ; and the
diit-iiesfi pMdrt! with her interest la that great
and noble inaoor of Sheffielti ; his |f?ace hath
liad aK tbat be on his jiart wag to have, and
liaitii executed abundance ut'deetli;, nar^natitto
llbtgtei^nient. Now if, nt^er all this, there be
fl ' prosfjet't of fan her advantage by auolher
marrin^i.^ that will not uiuve you topve hifn a
liberty for n departure from so solemn an afiree-
ftaent ; in what a cundition nre peu]de that havD
purchasetl their peart? as the duchess ha/?, if
tiiey tXiiiy have liberty to l^o back Iteyond this,
Fcir the iidl has no F^tint ? iSioeiy all reconcitk-^
lion between men :ind tht'ir wivpra, and all acts
towardii them, and all acts of kimliiess, arc to
be t a van red ; and matters of a divorce are of
ftu odiou-s nntULT, and uot to be encotira^ed
after such cnnipoitiirc of differences, and recon^
ctliation. We have instaocei of some thai
have taken their wiveii og^ain, and livtd com-
fortably afierwiitik ; surely it shall not be in
their p<iWtr to go hack and say, Pray let us be
divorce^] ; it is contra ry to the use id' all ncis
uf parduii. \Vh:it is the end of all acts of
paiUamet^tof genrral pardon, and all statutes of
limitation, but to ease ]>eop]e in such a ta^e ?
For it ii impoasibic that any person can be able
to delend iheir afttotis uine or ten years ago ;
Ihey caunot keep tht-ir wiincs&t* alire, and
thertibr€: the hiw hnth often limited a time,
beyond which persons slmll no( ^o bark : and
Aa, we think, the duke hatb done by articles,
and surely they are eoncIusiTe both beJbre Got!
and mnn.
1 shall say no more, but that 1 do not appre-
hend the nation will be in any great danger, if
the dnke do, betwixt this and the next session,
urooeed In the ordinary coursei and prepare
Proceeifhgs hdv^^eem ihe Dtdi ofKurfiM [131
nutterft a«|tiiDst another aeami I mimt
b of gr^t con£r«iuetice ; ti« ttM <u iiti^li
we have a good coustitution ; kitifHktili
case of a particular ptxsM la Ik bmkfn^ti^i
breach in ihi^ constitution miy ao( be ror
easily reoof ered,
I liope tbli eaiute, thut a pm^imd
out oftime^ and t>efore thnst fmpviiiV
made that hai^e h^eu hi nil olli«r cvtt^ ili
remitted to its proper phce, wbcft tiir jj^
will ^ve the duk«^ a tuwiaig, if ihtj Wii
before that tinte recoucded.
ftlr. Dodd. Sir, Sjitaker, 1 deni^tkfoe
of a f^ord of the tame mde. Hich lililH
not com roon * 1 t h iti k ther^ hre aot sboft llm
instances to he !buod in ihe reeonb rf 4i
kingdoni*
This bill is to flia^lre a marrii^retftcrttBlf
three years ctmtinu^ce* aitil thai rwi i|a
10 many d^ys notice a£ there his b«n |<itf
of the sYiarTjage, for to serve the|iartkikrf^
poses of one (lei^OD : It fe a b*v itWrtbti^
posed fact commitied ; the law *bc*uM ips Irfr
and the fact ibilow ; it is not a |tntnl btif
all the people of Eng^land ; as tfudt, ilii^
have l»een another con^fidertiitoa ; thwt**
occasion for a particidar law, it is a Wtfi*
the IjordSjand in a litile lime, forwhill bi»r
the Lord* will prescribe to il. Thert ii **•
of these bills for a coiinj*oner» imlsaiin fli|Nl*
rtoss*f case, who wa.s of a noble fmmiljr.
It is not preteoded by ihij bid, iImn ^
durhe&s hath had any spurious ma^, ili^
that wa» the eiroumjsfanees of one of tl» m
that did psiiw, and that was a tpaif rial a«*
stani'e In tht- case ; and thai \i ant ''^MP
hercr These hith are not to bemdea^*(
but upon csrtraordinary occasiooi i^^ ^
utmost extrcmiEy, and lili tht^n f hapesaci! ••
bbaU not be niade use of; and we tlajnl'j
prot^eeilirirf upon tbis bill in this ti% **
a ppear much harder ; for it Is the fir«it irtsyt^'
this* nature, when there has been no ptw^al
i 11 it o V CO u rt w h atsoe ver , to coot ii t ilw d «**
of this offeore, no citation all this whifci**
ecclesiastical courts, where the docbc!»<"f*
have ail opportiinitv to tuake her defeM*-
If tboie courts bsTe jurisdiction io mt •
thing* il is in cnse of malrimoaj i If ^''^
brought into lh*>sc courta, the durbei ■»!
bo allowetl to make her dtfence» noiwjf 7
way of recrimination, but exam inaUfW* *'•■*
nesses ; a commission might be haJ^*"*
amine whnesses beyond s^. if tb« ^*J^
witnesses there, or in th« country ; ''*^'"£
appeal to a superior court, and th«Dt* ^
delegutes : These are all proper dHiftif^'^
the law allows, thai there may be do s»ff*
tffron the party ; and it injnred, be |°*L-
ri If bled in another place: These |>r(>0«***n
we think are necessary to go before 1 "J,
this nature, for then the fact woulfl^F**
and if the ducbeis had been H>afiri**
thiji nmnner, aa lo the fact, we t^^^
have o|)ened our mouths agaiuft it.
By the same reason that a bill h ht^w
dissolve ibii murriage, in a tittle tiiue }^ ^'
and his Duchest,Jbr a Divdrce*
A. D. 1100.
[1S54
(mB to mairy people : Be it enacted for
ad socb reisoDs, such perMDs shall be
I. This would be a much readier way
of contracts, than any proceedings in
lenastical courts. And though they
ly the law of £ngland takes notice of
ti of matrimony, as well as any other
at is no answer ; for the fact is, whe-
re is any contract of matrimony, or no ;
t is here, whether my lady is guilty of
DCS charged here in the bdl ; and for
ought to have a proper trial, and ought
lied to an account in the ordinary roe-
tbe law ; and then it might be proper to
e sentence farther than those courts can.
ou will be very tender of making a new
it ; and I do not know of any bill before
convict a woman of a supposed crime ;
I is the first bill of this nature, and you
Mider, whether you will make a pre*
f it or no. Though this before you is
of a ^reat and honourable person, yet
ticewiU be the same if it should hapiten
' other man in ttie kingdom should be
tme circumstances, and willing to slip
trials, whereby the person accused
ave an opportunity .of making her just
as is the case of this noble lady, who
nI on atlter twenty- three years nuur-
a determination in as many days in this
inary manner.
le theretbre you will not proceed in
r this extraordinary nature, of which
not one instance to be given, where
e begun to examine a supposed crime,
have always letl it to |he determina-
he law in the ordinary course ; and
i it ought rather to be so in this case,
it is not pretended by the bill, that
iny;stop put to their proceed insfi there ;
00 abstDceof witnesses, no iucapacitj^,
fraoe may proceed there to convict this
he crime he supposes her guilty of, and
there have her just defence ; and till
re is no crime tor you to judge upon,
>pe you will think fit to reject this bill.
imfold, Mr. Speaker, I desire to speak
»rds as to the ecclesiastical law, which
of the law of England as much as any
vr our Idw does not receive < majus et
;' and the ecclesiastical courts have
ded for several ages, and are governed
rules which every subject has a ri};ht
this bill is to dissolve the bond of mar-
mI to give leave to marry again ; and
leave to shew the House what our ec-
al constitutions are in that case, and
Icr they have been in that point, and
ie constitutions a^e funded upuu the
nd decrees of councils.
ises where tlitf bond of marriage is ta
red are but few, and they arise before
s ; it is in the case of a precontract or
or consanguinity, and there the bond
1 by the sentence of the judge, and the
itD liberty to marry a^n ; but for
•M afterw ardi| whether it be the case
of adultery, or any thing elye, the law eccl»*
siastical, which, as I said before, is |>art of
the law of England, hath been very careful do|
to dissolve the marriage.
The 48lh canon says, if any layman ahall
put away his wife, and marry another, he.
shall be excommunicated : Tliat was the sease
of those early days ; and sure they did not
. think it an indifferent matter because they
punished it with so heavy a punishment. I&
It was in the council of Aries, 314, and there
it was decreed, that if a man took his wife ia
adultery, ha should be forbidden to marry.
There what was to be done ? Counsel should
be given him not to marry while she lived»
though she was an adultress.
And in the council 402, the Neapolitan evan-
gelical, apostolical council, it was decreed.
That if a man was divorced from his wife, or
a wife from her husband, there they were not
to marry, but should remain unmarried, or be
reconciled.
And in the African council, canon 108, there
it was provided. That they who were divorced,
whether it was a husband from his wifo, or a
wife from her husband, they should remain un-
married. This was the sense of the ancient
canons and councils, and this is received into
our ecclesiastical constitution. In the 15th
year of the reign of queen Elizabeth, in the
chapter of divorces, it is said, That upon a
sentence of divorce there must be an admo-
nition, and a prohibition, that the party ahall
not marry again.
And in the year 160S, in the beginning of
king James's reifi^n, there was a farther pro-
vision made to keep tliem from being mar-
ried again, and that was this. That they should
give bond and security that they should not
marry again ; this is certainly our ecclesiastical
coustitution, and grounded on the sense of the
ancient canons.
Now it remains to shew some advantage thia
would have hatl : If she had had the trial which
of common right is due to the meanest subject,
she would have had the advantage of chal-
lenges, which she cannot have here ; for here
the evidence must drop from the witnesses'
mouths, who are foreigners, and have been fong
absent ; there they must give an account of
themselves, which here hath not been done by
any body. The lady might have given her ex-
ceptions to those witnesses, and had a commis-
sion into Holland, to have examined how these
witnesses behaved themselves, and whether
these oersont were to be believed and credited :
here she would likewise have Uberty to give aa
account how this design began. I do now
speak with respect to the doke, but I do say it
does seem to have begun a year and a half ago.
She would likewise have had the advantage of
a thorough reconciliation : and here are some
deeda in 1694,between the duke and the duchess,
which 1 hope, if the House will take an ac-
count of, will have its due eflect ; she would
likewise have had the advantage of an appeal,
the eommoo right of theeol^ieGty and grounded
feoccfl, ami even ber recrimination, and had a
time to prove it ; there was publication, and a
day set down lor acntence ; but vlie spun out
thp time till the narliameut was road^' to rise,
and then my loriVs friends advise<l him to be-
^\n in parliament ; and when the Lords were
acquainted of my lady Macclesfirld*s standing
in contfmpt of the court, and she was prose-
cuted so far, that she was almost ready to f;^
to prison for her contempt, then the House of
I^rds did think fit to receive my lord Maccles-
field^K bill, and not before ; but before my lord
Macclesfield brought his bill in parliament,
there was nothing remained to l)0 done in the
erclcsidstical courts but sentence : and I hope
for all these reasons, you will not proceed upon
this bill.
Mr. Seij. Wright. Mr. Speaker, I am of
counsel tor the dake of Norfolk , who is your
supuliant for this bill, for redress against the
highest injury that can be oflircd ; the rights
of his marriage Ited have been invaded, nnd he
crines for that relief here, which no other court
ran alTorrl hiiu ; for the learned doctor on the
other sidi^ tislls you plainly, from the canon
law, thut there ca*n be no divorce n Tinculo nm-
itiiKonii in their courts: now to send us to a
court iWr relief, that they tell us before-hand
c.in ;;iie us none, is in effect to tell us we shall
have none at all.
The bill is founded upon the suggestions con-
tained in the first three or four lines of the bill,
that the duchess of Norfolk hath, for divers
J^ears, lived in separation from the duke her
lusband, and hath had unlawful familiarity and
have come away before
they were in the spiritual
ceeiUng there, to leave thai
a mistrust of their own \
objection in that case, t
away from the jurisdictior
^Ve do not come to you 1
ritual court can grant us
no farther, if the fact be
a se|)aration a mensa et ti
marriage is to be contin
submission, this is to pu
stead of the guilty : wh:
desire more, than to be s(
and board of her husban
accompany sir John Ge
further, for we come to t
solve this marriage for '
by several learned write
reason for so doing, fur a'
the wife : it is expri^^ly,
put away bis wife, e.\ce
tion ; this text plainly al
fornication a man might
but the Popish canons tl
have put a construction u
shall put her away ; but
moved from your bed an<
not marry another. Thi
no precedent of a bill of
liatli been a previous pro:
tual courts. I agree the i
tou's case, that that act dt
ings in the spiritual C4>ti
stroi:ger than this, for 1
and his DuchcsSffor a Divorce.
A. D, 1700.
[1358
r for a Iodj; time, and that sbe had kept
V ^ith others ; so that the parliameut
[oimd thi bill apon what had been done
e divorce.
•eal to your own memory, that in the
Macclestield's case, there was no use at
bat side ; the bill was brooght, that
ad been proceedings in the spiritual
or is there any such thing recited in the
: only an express downright charge of
r ; nor was it proper for them to have
Led any proceedings in the spiritual
ince they waved that prosecution ; but
he other side insisted on it, as a reason
e pariiament should not proceed in it, it
I take upon them an original jurisdic-
ut we were then answer^ by a learned
lan against this bill, that it was in vain
ere, for they could not give the remedy
;bt reasonably be expected. I beg the
0 mention a case or two, where divorces
en in parliament, and there have been
ecdings in the spiritual court ; one of
KS the case of Mrs. Kniqfbt, who was
infra annoi nukiles to Mr. Goodw-in.
ine knows, that a marriage infra annos
m a good marriage ; and if the woman
D nine ^ears old, she shall be endowed ;
: notwithstanding, for some irregular
ings, without going into the spiritual
wy came into parliament ; a bill was
by which this marriage was dissolved ;
link it is expressly enacte<l,
the shall not marry till such an age.
cs farther ; for here I am sure the doc-
Id have explain^, and told you, if there
D reason to dissolve the marriage, they
ave done as great a feat in the spiritual
that thev could have examined wit-
npon oath, and could have told you
* there was proper evidence ; yet the
ent, without any reganl to what they
I, would assert their own jurisdiction.
iue of Mr. Wharton was mentioned on
if side ; and therefore I need not say
ig to it : there was nothing of divorce,
led any.
say tiiis hill begins where it is proper
ers of this nature to end ; and that after
! taken a turn into the spiritual court,
elled three or four years there, then it
St for the judgment of parliament. I
mow if they had been seven years in
rt (and pernaps if they come there, we
t get out sooner) to what use the exa-
1 of that court would be. This house,
oe, would not let those depositions be
v, especially if the witnesses to their
re living.
say this is a very summary way of pro-
l it may be too quick for the duchess ;
may be pleased to consider, that there
ill brought into the other House some
po, and rejected ; upon what terms, that
t opon as to sbcw you by and bye.
■e matter was, the witnesses that proved
I WM lent out of the way by the ducheis
and sir John Gcrroaine, when tilings were un-
der an examination; and we hope a matter of
this nature never shall be baffled by keeping
the evidence out of the way.
We told them long ago,- who the witnesses
were ; tiiey were the ducbess's servants, such
as they thought fit to entrust.
They say this bill deprives the duchess of
her trial ; 1 hope nobody thinks the parliament
will pass a bill, without due examination of
witnesses, and legal proof of the fact ; if so,
what matter is it, whether the proof be made
before the |Nirliament, or some inferior court ?
If the duchess be guilty of this crime, we come
here for relief, which the spiritual court, the
doctors tell you, cannot give us; since ihe
duchess hath broke the kmnd of matrimony,
we come to you to dissolve that marriage, aud
I hope we shall have it.
The doctor hath insisted on one thing, that I
think is very extraordinary : he tells you, by
the rules or their law, if the woman cain recrT-
minate, and prove her husband guilty, in such
a case, they must set the fault of one against
the fanlt of the other,
I wish the doctor could have told you the
offence had been equal, that the injury to fa*
milies had been equal ; a man by his iiilly of
this kind brings no spurious issue to inherit the
lands of his wife, but a woman deprives her
husband of any legitimate issue ; for when sbe
converses in this manner with another man^
the issue may l)e equally looked upon to be that
man's, if not more, and his lady hath kept this
conversation ever since the year 1<)87, and lefl
the duke.
One thing is farther objected, aud they insist
upon certain articles of agreement in uinety-
four, and they read to you the preamble of
them : why, 8ir, the articles, if they come to
be read through, I am sure it won't amount
to whnt they pretend ; it does not amount to
this, that the duchess might use her body as
she pleaded ; there is no agreement, that she
should live after her own pleasure. Indeed,
sbe was to have the use of her houshold cfoods,
and servants, and live ivhere she pleased ; but
that will not justify her in her way of living.
Then to tell you, these are matters of long
standing; the^ are so, and of a long conii-
nuancc ; for, if my instructions prove trur, we
shall prove this scene of ailultery for matter of
eight years successively, and that by scxvants
that wero privy to the intrigues, who' were sent
away to Holland ; but no sooner was the bill
baffled, but tlie man was sent for again, and
the same conversation continued that was be-
tween the duchess and sir Johu Gcrmaino bu-
fore he lefl England.
The same was continued ai\er be came back
to his service in ^1691) ; only they were some-
thing more cautioui, and people were not ad-
mitted so familiarly to see them in bed together
in (1692) ; and so it continued till 1696.
They mentioned the Statute of Limitations,
which was to put an end to frivolous and vexa-
tioui actioni : bow .they oan apply it to thit
Proaedingi tetteetn th€ Duke ^N&rfiA
i
I e&ntiot «•€ ; bfH3*u»e » iii*a tbiU not
tiring friToIous an<l vcicatioos actions after a
Jong dislaiiee of tiEni.s lUerefore a niBii shdt not
coiiipUiiL when be liatti recc^ivni tiie grealest
injury Itml cau be douc to iBankind.
t^ir, th^y arc kind lo ui ftgam, jo reeom-
ineti<1iQ{^ it lo ih^ tluke to gt» into the «piritutil
eourt t)tl tlie nrx'i ti«&<iions ^ but we thiok wc
tre in prt)[im° iiiHhud here, tbr thai. ruUeftv hick
the ipiriloal ^lurt canitot ^v%ni \ and siote we
liai/e au ^oi>tl riMSoi] lo cahoc here* if we pro*!:
the l^i.'tf I hope this hi^h court will not senit
twaj a criinjdftiui nfibb n»tnre» wiibout suoh
reh^f ai snitablif.
Mr. Nor they. Sir^ 1 am of the same side :
I ^oiili) bei^ leave tu sn)' Ihig ; At to W'h^t the
#ciuiiiel hive siild hi relation to tU« evidence,
that there werethi«<H M^iioeiisea examined iJfW*n
#&Qi, iQ the INiuse of Pei^rSf bt^bre ibe hiLl did
pasa there ; and I heller e Ihey ttre aware of
that, aoti lliat when you bear our wirnifwes,
there will he no answer to be given on llitir
■ide ; and indeed the witoessee they bronghtt
were so far iVom cuMJtra dieting ourVitn eases,
that they did rciilly eonfirm ibem. Bui that
is not the case now, ivbat oar evidence ht or
whether it he tit lor yon to behe^e ihem, ibai
will be i*hcn you h*ave beard them ; and for
the matter of the liinei that you eaunor take
Untice of neither, till you hear our evidence.
But this 1 may say, we shall bring- a man that
iviLl ipeak to uilhin four or tive yean,
Bttt the uialter thfy apply tbemielrea to,
which is material, is, whether it is proper for
you to proceed on this hi I), that is, to p'lve such
m relief aw we desirc.% hy dissolvinj^ ihi^ tnni-
riftgef And in the next place^ whether this he
m proper time to ask tbi^ favour f
For the first, the iearned doctor tells you, it
IS not proper at any lime to do it, for be wooM
bftve the caoan taw govern here, as it does in
Iheir courts, But the cotin*iel on the other side
have ciied you sevei-al precetl«nt» where il hath
been done. In the Cage of the marquis of
Norlbanipton, the second mnrria^ was con-
trary to the canon law, and yet that mat'Hage
wai eonfirmed according to Ood*$ law< And
this hill is to relieve a^n&t the canon law.
Now, whether wc are here in a proper time ;
■ir Thonjaa Powys has said a great many
ibinga, which may be proper to many other
purposes. One argument was, because the
witi^e«ses caonot he U|Ton oath ; but that we
know will nni prevail in this placc^ In the
next place they e?ccept, because this proceed-
ing is in A summary way. I would know of
them, whether there i« not the same objection
to all prvceedini^ before a jury, that they liaifi
no notice II bat witnesses will be produced ?
Then in the nejtt plice Ibey vriu^ a gfreat
arg^ument tbr tbe recHaJ of some of these hills,
Iliat there have been a sentence in the ecclesi-
astical court!;. Now, it iM true, ihey have been
io in some of those eaaet» t But I beg leave to
observe, that in the eaue of ibe manjois of
Nortbarfipion, thtf hill was not to ojnlirtn the
Mei«o«e^ or tu cttAbAa t&ea to inirry, ^ to
deliver them out of Ibe lianda of tlir ee
ticsl comta, who aaid it was D«it bwful
ease to marry, #br they were i»amH bi
1 beg leave to say, that in the imm
Inn) MiiiCcle^held, there w«^ do ttiAht
bill that came down to yon of any pri^a
in the eocie$ia^tical c^ourla : And J ti
to be the reason^ becaustf there was noiv
tbougli where there was m aenicnce, th
trciod reason to take notice of it. And
there h aa much e^rtainty, and k good |
to proceed on this bill, as in ihe oibtrea
the witne^sc^^ have been already t^XMsa
the Houic of Lords, In the case «f a
Rosa, there waa no regard to the ddivai
of the ecclcaiaMical courts, as a ^mie 1
parliament; and il was looked upaa u
consequence, for tlie witne^Mi m&t Oi
^in.
It is true, when we came beforeyoa »i
such a proceed in (f, we came under tliit 4
vantage, you will he sujie in expect i|il
and fuller proof ; but for that w« wiQ ti
take to make the fact lo [dam, ihu ihtfQ
give Ibe least preleticc to answer ii> it.
We are berea^kmg that we cannot him
where elae : their gi^al design i» Mj,
that we have learnt from tbe dvilita, iii
you, their methods are very grar«i«|^
rale, and, that they may have a eofaisi^
examine witnesiea beyond sea; aMll«i
<ifK|uire how their own servaiita bite fifti
yond s^.
An to what sir Thomas Pow^^s mtM I
that is, that we should go loto tfi^: ipi
court, and apply ourselves here asfaio oeil
fiions, j do noi tiiink the legialattire will m
back lo a»k that in ihe ^piritu&l cmdt
both have submitted to : For attrr the
had miscarried in the relief he sought t?
ther bill, by tbe duchesses seodiag tbe will
out of the wa^ ; why, truly, after tlul^M
vent any proseeulioD in the spiritual CQdr
ducheai) submitted to a feparation bv »^
and that was all ihe duke could have ^
to by the ecclesiaftical Jaw : We Wl*
upon thai, and come to enforce that sr|Sr
And, to make it effectual, aod for that ^^
humbly hope will be thought but JListiee
duke, lb at is, to be deUvered fri^m ttia
and to have liberty to marry a^in ; ve
there is uo occaj^ioti ^r delay, and tbit v
can be hurt by a precedent that carnet tt
this nature, and deJiver us froiiA a law, i
in the days of popery was put upin a*.
ihe M hole matter, I bo^je you will think 4
are here very projierly for relief, M^i ifc
shall bav(» the favour to c:ill our wilaftfi
Dr, OiiiiiL Sir, the i^reiii ohjectjot ^
the pacing of this hill was« bec^iuie vii
bad not been eiamined in the proper evfl
is very true, geiiemlly sp^Lin^, V^ ^
ought to be so ; bat hetie is a very gff^*
tion to that rule, and nbich, I thiofc, I
admit of an answer^ aud that is, the «a|fli
ibe fact I and in that case thet bttfiD *tf
cution. And if that bo wi, I thiol ilii
il]
and his DucIiesSyJbr a Divorce.
A. D. 1700.
11362
a clesrer demonstratioD in I he world ; for
ill formeriy the duchess came to give in her
wer in the House of Lords, to the charge
iiiHt her, the did declare, that in the year
or thereabouts, she went oat of England,
i tarried three years, and returne<1 about the
le of the revolution. And it does plainly
tear there, be? ond all question, that she was
lAmbeth, and went under tlie name of the
ly Beckman, and was attended by one
Bemer, who went then by the name of Good-
ID. Besides this, there are witnesses that
Bik to particular facts. >ow, I say, here is
U which amounts to demonstrauon ; and
ere there is a notoriety of fact, that is an
sefition out of the general rule, and it is
per to begin with execution.
oere is an exception to the general councils
canons that Lave been mentioned, that
« sbaU not be a divorce d vtnru/a. Sir, I
, it was an ecclesiastical constitution, which
against the law of GikI ; and it is demon-
^y BO ; for where our Saviour says, that a
I Aall not put away his wife, except in case
braicatloD ; it is plain, tliat in case of foroi-
"Hi he may.
'here is another thing insisted on, and that
hmt there was a reconciliation between the
K and his duchess. It is true, a reconci-
on sboiil'l drown all thinjg^ before that time ;
^beo tlie law takes notice in case of a re-
^ that does recrudescerCf it rubs upon the
MK, and then that which was before laid
«f is brought again upon the stage, and
^ yMam with greater ven^^eanoe. And we
'^^hin proof of her living in tlie same man^
flnoa, as before.
Mm they would insinuate to you, that in
» Ibcre was a trial in the ecclesiastical court,
% aught be a recrimination ; but there must
k compensation, which cannot be thought in
cue ; for, I think, in this case, under fa-
1*1 there is no comparison. I do not tliink
^ are pmria^ for it is impossible for the bus-
i to do that injury as the wife may ; for she
^ bring a bastard into the family, and then
•stale does not go according to the law of
I and nature, for every body desires his own
jd should succeed him.
ir Tko, Powjfs. Sir, 1 shall say but very
Hi But three or four things have been
ktioaed on the other side, which they offer
"they oonceived them to have great weight,
yet they seem to me as very capable ol
f answered ; and I crave 3 our favour to
L
bey have gone much open the proofs that
r are ready to make, and, I think, not very
nrly, because we speak against their pro-
\mst upon this bill ; but 1 am sure it turn))
I lEem : For, according to tiieir own shew-
they are very well prepared to |>roceitl
icgnlar course, for they have their wit-
Ci ready, and nothing d»es obstruct them.
[f.Seri. Wright mentioned a thing, which,
Mt oontesa, 1 was surprized in ; tor wheu
Id him, he ooold not find any precedent of
OL. XIIL
such a bill as this, without a previous proceed-
ini; in the spiritual court; xMr. Serj. Wright
said, it was quite otherwise ; ami to shew \ou
it was so, he cited two cases whrn; there uns
no marriage. Now, 1 always underMoml, a di-
vorce must be in any ca<te where there was a
mairiage, tbrthecaseof Mr. Knight's, that was
very lately : That was the cusc of an infant,
who they pretended to have married infra annos
nubilct; and therefore, says he, the declaring
of that marriage to be null and void by act of
parliament, was a divurcc. The other was the
ca!W of Mrs. Wharton, which was no marriage
neither, for marriage must he by consent, and
that was a force : and that he fancies to be a
case, where there was a divorce too, without
firocecding in the spiritual court ; and yet, of
lis own shewing, it was no marriage.
Another thing I am much more surprized at,
we insisted, that they would not shew an act
for making a divorce without givhig the party
an opportunity to make a defence ; antl the
doctor says, in common cases it ought to be so :
and they cited the carl of Miiccleshcld we lirst
mentioned, and the doctor to)d you the pro-
gress it had, and that there was a full and
regular procecdin«r, of great length of time ;
and, that my lady Macclesfield h.id all her wit-
nesses examined, and my lord prosecuted her
to an excommuniiuition, which is in eflect a
sentence, for it is in our law as in cases of out-
lawry. This he calls a precedent wherein
thev proceeded to get an act of narlianient,
without n previous proceeding in the spiritual
court.
He tells you in the next place, Tiiat not-
withstanding the divorce in the case of my lord
Ross, the parliament did examine witnesses ;
it is true, they difl, for I don't think they will so
entirely pin their faith u|Kni those proceedings,
as to hare no other satisfaction. But will he
therefore say they took no notice of it, when it
is the foundation and ground of the bill 1*
He tells you in the next place, that the crime
does not seem equal between the one and the
other ; and so, in some sort, thry ridicule the
doctor's notion of recrimination. But I ap-
prehend the doctor is right in it : for it would
be hanlif a man should marry a young woman,
and give her an ill example in his o\\ 11 family,
(I do not say it is this case) anil hrin;: her ac-
quainted with loose and ill company, and by his
example or provocation lead her into the same
offence ; would that man deserve to be rewarded
with a new wife, and another portion, because
his first wife hail only followed his example f
Tiiey sa}', the offence is not e<]ii.ii, U'cause
the man brings no children into the family.
I doubt it happens olWntimes to them that
go abroad, that they hrinu home that to their
wives which sticks longer by them than their
children.
Then to come and say, the articles cannot l>e
of any use to us at all ; and to imat;ine that we
use the ailiclc<) so, that the liueliess might be at
perfect liberty to live in mluUcry ; 1 wonder
how that conceit hath followed' him hither^
4S
UBT) IfiWILlMlf m.
mgi altoF^ «Sf upon our hdng iMndaMMU \
ItMbOltllMt weilMNildhafa « tiMl* MMBioi
tov
l€ur
■wiir,M thali denm butmaiMrt I
tbia wkai u abioliittly peptwa
•ordfAlioe. Thi* hath spcBt w
tmij^ and I am Mira Hm fntaa
baaa iiainiiied havagifaD mob fi
«MiaJttMi it dolh afiM m gnat J
tail. Wabarelikawiaaafloodmi
»; now we hif« beard
but m abort tUM^ BO BMra
Dtpiawiy, Jb iMke
KKaoiaal-
itbitbaTe
_ 1 fariatj of «a-
Ltet it dolh afiM m gnat deal to bo aud
toil. Wobarolibewiaaai^flUBjrwiOMM
OBboamauQcd, bat lam far Aom propomif
.aaytbioglodelayit. Wobadm wodiViime
attowod OS ID tbo Houae of Uwda, but diat « n«
rola for 700, ood wo do nor ancct it bore :
Bot, ofon while wo are at tbia bafi m ooHoa
fiom a very wortby BMnbor gioaa oa mtdlU
goooo^ opoo aiffbt artfaiaoook-maidt of a nia.i-
tartbotwilldJ^ber; and ba wiU bo roadj
to moboitonl, tbatabowoa tamed away for
MiigmopnjnontfaKef mHoUaod; aodlbare-
fifn^ 8irt joa aeo how limo m neocmaij in
pout ofaceideDia that do bappaa; aiodlau^-
taol make our diefeoee bow.
. . ThoraopOD the connaci wHbdnw ; aadlbe
Moumuoo baviog oooaidmd of tbo deabo of
^oouiael.fiNr uio.diicbon tobaiotinM ^1-
- lowed Iheip to niako their defimoe, were of opi-
BioD, that tbo ooimael aboiild pniDaod tbeii to
Waker their defeaoe; and caodua wan ordacefl
^babioaghtin.
And tbo conoad being. caUad in agab, nr
jRowlaud Gwynne Umg u the chair of the
committee^ acquainted tSem with the deterui*
nation of the committee.
Then sir Thomas Powys obsenred upon the
evidence that had been civen, and insisted, that
the evidence given before the Committee of
Commons did differ from the evidence git en
by them upon oath in the House of Lorti^ ;
and offered to produce tlie examination of the
said witnesses upon oath in the House of
Lords. And an objection being made, that
•such examination ou^ht not to l^ read in tliat
ease, at» evidence before this committee ; the
counsel withdrew, and the committee con^
sidered of the said objection, and were of
opinion, that the said depositions should not he
read.
And the counsel being called in again, were
acquniiited with it, and that if they had an^
witJiesi.sos, vira voce^ to encounter their evj-
dcnee, Ihey might produce them.
9iv T/uMias Powys. Sir, by this resolution
my client is deprived of that defence 1 thought
I could have made for her ; bat I submit to
the jjlcasure of the Committee.
Mr. Jtu'ood, The examinations in theHou^e
of Lords w ere so lately, that it is an easy thing
for the Koliciiors, who' were by, to give an ac-
count of a contrariety in the evidence, if there
were any.
A Member, Whether yon have any other
evidence to offer, but as to this point ?
Sir Tho. Pouys. All our evidence wonldtend
to contradict these witnesses ; and if the read-
log of those deiiositions will not be allowed, we
—- tajjide your pleuprr, and submit it to you.
tagaiiatiiimo*ilWfc
Mr, JDcicfi/. We HHfc««hMtit iO|«itw
witneratsw^'i ia oofMBmpoa intb^dM Mt
of evidence,
Sir Eamiand Gi
persunt jiained, who
j^ood reputalicin, Mr.
Daniel Germiiine aod
be witnesses of
you say, not ef credit*
QfimseL We hm
Mn. Pitts, and dt>EMi 1
side to get them be (W;,
prejiidge our case, to oaf tbay ava moarot^
rest ; that h to detonwaotbo Vgte. V|
have Eikewise satBHWod Un. Pilli aai hk
twii maids; aud wbatfaor tbag «ilappHi,«
not, that we cannoi tall ; bot Aio.wo wmmiif
m oialceOBilo voQ«
duchess's woman, pdvj lO tbo w|nb OOBifM-
tioa, h proved to bam boos witb hoc^aoelhi
bill was brought miHtiM Popoa of Lwdl,
A Mmbtt, VV hotbv bo baa OM^Eng oft-
i\mf% to produce^ liia^ \m OOB
delenceuy?
Sir Th&. Fo^ys. Sir, if yen eirpe^it^
by me, I am a figured that v^c hktm
but if 1 cannot bring those pwmlc i|£
selves, d I cannot bring NtcbGW acini
Nichola, I despair of doing any g%>od, if 1 bnat
a thousand otoer witness^ie a{|aitisl him 1 19
therefore I pray ihiji tkvoar <il yua^ ihat iea|t
it is your pleasure that tbla et idme h| atf
alio wed, you will not make a b:i4 ismmndmm
of it, that I do not proceed to n^ake • ' s^
tbis bill ; for I cannot truly do it» unless 1 hd
some otiver iListructions from my dieot, Lsl
shaJI defeat htT expectation to proceed spn
ihe other part of ibe case, since what we Ml
upon with good authority, as we tbovght, if
not tbooght lit to be admitted.
fiir R^ Gtaynm. Sir, yon are atlibcitjls
go on, if you have any thing more to say, tka
that you cannot procasd without fuithcr 4inB»
tions frt)m your client.
A Memlmr, Whether they have any liuDgtt
oCi?r in the defence of the duchess, opso ibt
crime she is charginl with ; for, I bdievCr it *^
a new thin^ for the counsel, w hen tiicir cfatii
charged witli a crime, to sav, they cannot ik-
fend her linlesa ihey go and ask, whether tbtf
shall defend her, or no ? If they hare any tiiiy
to my m her defiance, we shall be ready tebesrili
Sir It Gi^Y^fie, Sir Thomas POwys, htu
you an^ thing merit to say ?
Sir tho. Pe^jft. I cannot but repeat vbl I
have already said, that I would be gU 0
make the be^l defence this case may bear; ai
I may say, I have defended it twice wilbWH
gooi] success, and this is a third tinie; wjg
would make the best defence this eaWW^
bear now. And I must own to yoo, dMJJP ;
course of our evidence, we did proposa loiflk J
Ri^lves, h so far broke, by the 6nt daM
tion you were pleased to make, that i |
venture up<)n I lie rest of the dcfeoM^IIiW
jpxiv pleasuru \m 0i4 to adlmit
13G9]
Proceedings against Sir Wm. Williams. A. D. 1695.
[1370
Sir ii. Gtcynne, Vou may by any solicitors
flir ai^eDts, that were prcseut when these wit-
nesses were examined in the House uf Lurds>
pnive what they swore there.
Mr. Dadd. (Veai»|ireheml you have already
iletermiocd the mutter, and we cannot now
meddle with it ; but it' I apprehend it arigfht
IroiD tlie<:hair, it is your opinion, that we may
produce the solicittn-s ami a{;;ents, to give an
Mxwunt of what was sworn in tlie House of
Lords. Now %ve are under this disability by
•your .determination, that we, relying U|)on
what you have determined against us, are not
pre|uired witli our solicitors, or others, to give
evidence of that matter, but in a little time they
will be able to give an account of what waa
then sworn.
Mr. Atwood. It seema they want to be taught
their lesson.
And then the Counsel withdrew, and the
Committee proceeded unon the Uill cliiuse by
clause, and went through it, and ordered tho
same to be rcporteit ; which was done accord*
ingly ; upon which the Dill passed.*
• " The duchess nllerwards m:irried lir
John Gcrmaiue, hart.*' Former Edition.
410. Proceedings against Sir William Williams, bart. for llic
Publication of Dangerficld's Narrative : 36 Chakles II.* —
7 William III. a. d. 1684—1695.
An Information against Sir William Wil-
liams, for Printing and Publishing a sedi-
tious Libel, rejecting upon the Duke of
York, the King*s Brother.
Rex r. Williams. Trin. 3C Car. 2.
. Mtdd.M. Quod Willielmus Williams nu-
per de Westm' in Com' Midd*Ar' cxistens homo
pemiliosus et seditiosus ac raachinans ct false
naiittose et scditiose intendens pacein et comm'
* Mr. Wy no, in his learned *' Argument upon
the Jurisdiction of the House of Commons,"
pi 31, notices, that the <* Bill of Rights, after
numerating among^ the invasions of the cou-
fltkation, ' the prosecutions in the court of
IJo^s- bench, for matters and causes cognisa-
ble only in parliament,' declan^s, * that the
freedom of speech and debates, or proccedhi^i
m parliament, ought nut to be iiupeached or
questioned in any court or place out of parlia-
Mieof.' " And he says, ** That this declaration
applies specifically to the rases of the prosecu-
tions of the Speaker and Sergeant [Topham]
will be evident, when it is observed, tnat no
oiber cases had occurred in the reigns of
Charles 9, or James 2, where it had l^n at^
tempted to question, in any other court or place,
the freedom of proceedings in parliament."
It is observable (though I recollect not to
li«Te met with the observation) that the Honse
«r Commfins appears tu have been desirous that
the Bill of Rights should aliolish all informa-
I in the court of King's- bench.
On January 99, 1688-9, that House ap-
pointed m committee (of which Mr. Pollexfen,
•ir Georfl^e Treby, sir Edward Seymour, Mr.
Finch, sir William Williams, sir Aobert Saw-
yer, Mr. Sommers, Mr. Eyres, and other emi-
nent persons were members) ** to bring in ge-
neral H(ads of such things as are absolutely
necessarv to lie considered for the betlei- secur-
iug our iic-ligiun, fjaws, and liberties."
I
tranquillitat' hujns Regn' Angl' iuquietare mo-
lestare ct perturbare ac seditionem discord' et
malevolentiam int' diet' l>om' Regem nunc et
subdit* snos hujus Regu' Aogl' facere movere
ezcitare et procurare necnon sereonissim' et
excellentissim' prindpem Jacobum ducem
Ebor' et Alban' unicum fratrem diet' Dom'
Regis in maximum o<liu' contempt' et vili-
pendiu' cum dicto Dom' Heee et ligeis et fideP
subdit' ipsius Dom' Regis uiduceie ac inferre
On the second of February, sir George Treby
reported, That the committee had agreed u|)ou
several Heads, which he read in his place and
delivered in: after some amendments made to
some of them they were agreed to by the
House. The twenty -second head is '< In-
formations in the court of King's-bcnch to be
taken away."
On the fourth of February, it was, among
other thingM, referred to the same committee
*' to distinguish such of the general heads as
are intro<luctory of new laws from those which
arc declaratory of ancient rights." In the
afternoon of the 7th of February, sir George
Treby accordingly made a report, in which,
among the practices which are declared to be
** utterly and directly contrary to the known
laws and statutes and freedom of this realm,"
is enumerated the- ** causing Informations to
be brought and prosecuted in the court of
King's-bcnch, for matters and causes co<>r-
nizable only in parliament:" and among the
new laws by which it was proposed and advised
to provide tor making a more firm and perfect
settlement of their religion, laws, and lilierties,
and for remedy of several defects and inconve-
niences, one was ** for taking away Informa *
tions in the court of King's-bench ;" and to
this report the House agreed.
Ultimately the suppression of Informations
in the King's-bench was not specifically intro-
duced into the Dill of Rights, but it seems
probable that it w«s one of the articles eoocem-
pred' perimpLeod' per^eieud* ti ad «fie<^' redi-
he Mfiiich the two Houses dis^greed^ aud
whicL were discussed in the conferences be-
tsreeii tliem* t^^^ectitig ihat moat loifMirtant
itatuta during its progrms, 'nt« Uouaa of
brdi, it aeeiDi^ indir^ objected attof^tU^ to
ikfic^uw recUiug ttie pro^C'Citikjii of ialtHrina-
lions in the Kiiitr'^-bL^iwh, Jor iiiuil«t» eog-
nixalile only in pat U&FneDt^ 6bC, t lliey alleilj;^d
ftiat ttiey did not fuily a|ifireJi£Eid wkiit whm
meaol by it, nor ivhat instaoces tb^re iiad been
i}thi which thereJore they dt-sirciJ mi^bi be
escplained if the CommoiM iboutd tliink fit tft
insist tardier on it. The Cunm^ous ane»werod,
that they ibougbtit a very blgh gtierance aod a
'matter of the ^entest ctinst^qiience to tbo
IfOnk, and to ibemsetvea, that matttrt find
«ause« cognizable only io parlianieiit, should
bedracrp into examinatton in inferior courtr
liee Commons Jonroak, Febniary 8^ 11, 1^-
Ott the last of which days sir WilUdm WiiJiaiBt
was added to ihe [iiauagt;rs of 1 tie coaiereuce,aod
lie re[Kiiied Lbe [jroceediiigii upon ihe tree cod«
ference which ^a« had on that day, aiihoug^b
. If r. Bommers had reported the proceed tngs of
Uie ordmary coaKbrc^ce which had taken plaee
, «m the ^ame dfij. It ap^ie^i^ a« if the two
Hotisei bad adjusted by a comfrombe tbeir
disagreements upon the iol^eei^
Aecordiogf to Mr. Bairingtmi «' the attorney
genenii^s power of (iliag^ Informatifins ex officio^
^ieems to he borrowed from the civil law, wher^f
there is always a parti pubtiqnc, or public
proeeeutor" ObSi on WesL printer.
In a recent Case (Et'x v. Mary Jooes and
another, Mich. Term, 5U O. 3,) iltat mo^t np<
rigttt and learned magistrate^ 01 r. Justice Bay-
ley, seemed In be of ommon that Air. Attor-
ney's ptfwer of tiling Inibrmations ex officio
WHS sometimes exercised vesfatiounly,
'n\e ([ue^lioo, Whether commitmeuts by a
house i}f parliament may be examined by a
court of law? has been frequently a imitated. 8ee
the Cases of captain Streater, vol *% p. atiS, oi
RSchard Tbomp«ou, vol. 8, p. 1, of fieojamln
Flower, a. n. J7&9, the receut Case of sir Fran-
d« Burdett, and the otbejr cases and autboritieSf
partvcolariy th& learned investi{j[atjoos of Mr'
HargTovti^ tbereiit refi^rred to. In vol. 5 of this
CoUeeiion, p. 948, upon a niotioQ I'tir a Habeas
QorpuSf it was held by Newdi^ratt, a Co mm en-
wealth j udg^ of B< R. that a pn^ooer cuuuHitted
hy the parliament coutd not he disci iarg;ed by
an inftfior court. Tho following Itepurt of
FHtcbard's Case. JT Car. !l. B. R, I ha?e ex-
tracted from t Kehle 87 1^884,8$/. The same
case i;^ shortly ind ill reported in sic Tbomaa
ftkymond ito, l Ler. I^S^Sid^rf. ^5.
"fb> HiuM •rimfai «i!dM^ bn« to be
Muailted, and dL'breretl the order to ihe Ser-
jfjnl at Alios lo bike bim, and atttsr tUm Hotise
fmngMttdiis tta»iftkea».aidd«^aeik^f«M
lingi ogairM Sir MfK' WMIi^ ^
^end* idem W, W, nono dw £^4iiolL iam
UegQ^ Dom* CaroU Secundi nunc r(«|»lifr
^tc Bi^apod Parooli^ Haucii MtrtioiiDCf^
H
n
!
paidt ^d secofity given to appear iIm icsta»>
sious| winch per ^uritm it iilefil,i»itti
order cannot be executed alWvt^. Ba 1^
Hydo chid' juatice, the c)»aacdbf vf evai
may CQiise tlieirordef^ to be ^xescuid. Kuilj
Tw»sden, he must have a spedal ohler Ifib tii
Hou8e to ei^ecute tkejr orders. Bvi hr Ju«(i|
and Wiudham, the House of Lorii m aglfi
other courts^ but b wholly tkttfraiintd hffm
rogaUou^aud ceaseth iiil ihe aext«i»«o. ill
so wflg Hli eater's Ca^s^e, [See it asftWeMirrtd
to-} on iJibeaii Corpus i65^i be wttddtrati
the padtament baing determined, ipimtiWi
be i^pake those wo^s, for whkh Uvtuvm
mitted. Adjoruattir.
** The return of the Habeas CorHiinHte
he was committed March 27 lo tb flM,ii
fees paid, being taken into custodT If U.
8erjeant at Arms ot^ ibe Hoosc! of Wft.JP
saying when bmotily) by their oitii?filwn
Feb. Coleman ext^epied for the inccrtiiBi^ i *
doih not a|tpeftr what the fees m^m^
should be judge of them. Aha tltr EMOtf-
ment ia not only jbr fees, but till «can«j{Wi
to appear the next sessions. Atljcrutiur.
*' The parliament by pforojaiwD i» p*
ended : and were llie prisoner cDininiiliflJ^if'
contempt, the court mi^ht ia coflvffiictkl D9I
have bailed htm. But here the «tm af lii
day of the taking is matt rial, !kluf[ in ^
kuowledge of the 8trjeanl at Armi; thenfe
it shall be presumtxl the takiog; wai t^^
riaing- of the parUameBt, which court «MW*ff
King, Lords, and Commons ; at vrbicb '^
all the privileges of each particuiif ni^
cease, and each prorogation ii « atw p'*
ment ; and the bill twice r^d bcfurc "^S
be begun atiew ; and therefore m at0^
bim till the next parltamenti kt tbe p^
oo^fht to bi^ dfi^c harmed' PaHiimftitt B^ ^
and 4 Inst. 1 H, 7. 20, is Plowfrdjai'iC*'
By Windham, recogBi^ance uikeu bjf
wnM is fmitless by tlielr ses^jon, but
Ijiven there is delegated to the chfloce
as a thioff finish fed ; but this is ^^ f**
And by Tvrisden^ it^ all one wbetb<r»"2
fatten sittitigr the parliament, or afWr, ^^
is but a contempt to tbem, whidi ii"*.*"*
may diicharge : mtti m Cheoje'l Ctfdi'jy
fei7 ^ftiament, 1 henrd tt daelarvJ, ttal**^
ercr is done, must at the oeit ,
hegiia anew^ exoef>t in error, where
may be retomabie st the trtxt
gtvuaded en judicial records But
nmtter of con tempt, which ii disci
sesiioo of pari 1 amen L II y de chief
£d. 3. 2^ determines ^ii»^C}ait: i
ia omnibus coucnrred d«arij thit
to be dtscharged.''
S^ the Tria( of Rabeit FVUMT
the murder of Thomat DiBfrtM
Note therito,'f«C-»,-|[K'5OTltmi
JorpubliMng Dangerfief<Pt Narrative. A. D. 1695.
llSfTi
Midd' Vi et Armis, &c. iaiso illidte
e^uic* malitiose scandalose seditiose efc
\wo Lucro 8U0 proprio inpriiiii et pub-
isavit et appunctuavit qnodilam t'alsuoi
nim seditiosum et detamator* Libel I'
*Tbe Infnmiation of Thomas Dan-
, g^eot.' in quo quideni libello iiit' at'
prout sequitur. The lufurmatioB of
DangerfeiUl genf . About the months
H* or October 1679, when Mrs. Cdlier
elf (pred' Thomas Dangerfeild in in-
he pred' mentionat' innuendo) waited
o'rd Feterborou^ (Henricum Comit'
>tigh innuendo) to be introdnccd to his
t\\e duke of York, his kirdship inquir-
e (prefat' T. D. innuendo) if the lady
d ipveu me (pred'T. D. itcnim iuuu-
f directions how to discourse tlie duke
icob* Ducecn EI)or' innuendo) I (scip-
I' T. D. innuendo) replied site (pred'
, Powis innuendo) had : then he (pred*
t«rborough inuuendo) desired to know
fv were, upon which, I (preil' T. D.
) shewed his lordship a Uttt(^ hook, in
as contaiuetl a scheme, and the pre-
iscovery, which I (pred' T. D. innu-
m\ made in the Frenbyterian Plot,
»ok his .lordship carefully perused, and
ome omissitin therein, he (pred' < 'omit*
(•ii^rli innuendo) ordei'ed uie (pred' T.
eodo) to write, while his ionlship did
^ nie (seipsum T. D. innuendo) those
ideli', that the Presbyterian party in-
i> make an inburreciion in the north,
» join with an army of the Scots : Im-
y after this his Ionlship tuok us (pred'
Margaretam Collier in Inforuiatione
It* mentionat' innuendo) into the duke's
red' Ducem Ebur' innuendo) at White-
•ere we (pre«l' T. et Mug:i^tram Cellier
:>) both kissed his hand (inanus pred'
iJueis Kbor' innuendo) anil me (pred'
lido) he (|*reii' Duceni Ebor' innuendo)
n the ti^roiiud, for I (prod' T. innuendo)
fhoy ; then & (pred' T. innuenilo) j^ave
nefts(pr(d' iiuceui innuendo) the alore-
e«l little hook, which he (pred* Ducem
u) after some short perusal thereof
me (pi'ed' T. innuendo) for, and also
diligence for the Catholic cause, and
so uiv (pred' T. innuviido) to j^o on, and
1^(1 suc<*ess to all my uiiderrnkin<;s,
iu tiiise very words (viz.) That tlie
erian Plot was a thiu;^ of most miuhty
ence, and if well manafred, would be
inducible to the safety of the Catholic
.nd I (dictum Ducem innuendo) flo not
1 but the eflects of it will aiisner your
tion, especially in the northern parts,
(|ired' Ducem innuendo) am well as*
he major fiart of the (^entry are my
Ducem innuendo) friends, 'and have
•ufficient demonstration of their affec-
nie (pred' Diicju! innuendo) as also of
tantioiis to prfisecute this I'reshytcnaa
the utmost, for tliey arc no straii*;ers to
fn: ImaediatHy alVer this bis highness
fpred* Ducem Ebor' ionuendo) ordered Mrs.
Cellier and myself, in the hearing of my lord
Peterborough, who was priry to the whole dis-
course, to be very careful of what we (pred'
Thomam Dangerfeild et Magistram Cellier in-
nuendo) communicated to the persons who
were to be the witnesses in that new Plot, lest
we (nred' Thomam et Magistram Cellier inuu-
endo) should be caught in the subornation, and
so bring a terrible odium upon the Catholics,
and make ourseWcs (pred' Thomam et Ma^is*
tram Cellier innuendo) uncapable of any fur-
ther service : After this the duke (pred* Ducem
innuendo) informed us (pred' Thomam et Ma-
gistram Cellier innuendo) that in a month or
two's time, the commissions would be ready,
but ordered us (pred* Thomam et Magistram
innuendo) in the mean time to bring our part to
bear with the commissioners, and particukirly
ordered me (p'd' Thomam innueiido) to find
out some nersuns (as there were enough sure
amongst the Catholics, as well as elsewhere)
which were fit to be trusted, and that should
accept of such commissions, which should be
delivered to them by a person appointed for
that purpose, but not to be known to them to
be any other but a Presbyterian, so that when
occasion should require, they might, together
with those which we (pred' Thomam et Ma-
gistram Cellier innuendo) then had, be ready
to swear in the Plot, and that the Presbyteriaas
were raising forces against the king and go-
vernment, and hatl given out commissions to
that purpose; and in order to this, 1 (pred*
TliomaUi innuendo) did in some short time
after procure one Bedford, Curtis, Crey, Hill,
Hopkins, and others, to accept of such com-
missions when they should be ready, whose
business in the mean time was to spread
reports in the coffee houses, that the Po-
pish Plot was a contrivance of the IVesby-
terians, \'c. Now for our (pred' Thomam
cl Magistram Cellier inuuendo) encourage-
ment in the prosecution of that sham plot, the
duke (prcfl* Ducem Ebor' Innuendo) nromised,
that he would take care that roonev should not
1)0 wanting, but oniered us (p'd* Tliom' et Ma-
gistram Ccillier innuendo) to use all the expedi-
tion the thing would allow, to make a disco-
very thereof to the king's attorney : afW
which, the diike (p'd' Ducem Ebor' innuendo)
said, the Catholic party wouM be cased of the
charge, in regar<l he (pre«r Ducem innuendo)
was sure it would he defrayeil some other way :
then the duke (nred' Ducem innuendo) made
divers rows, and bitter cxticrations, to stand by
us (pred' Thomam et Magistram Cellier iiinu- '
endo) in the tliiu'r, and engaged on his honour
to be our re\«ardcr, adding, that such consi-
derable services were not to be slighted, and
further proiuibed, that to \\ hose lot soever it
should happc n to be imprisoned, according to
their fidelity and stedfastness in ti:e cause, so
much the mure should their rew ai d be aug-
lUiMitcd, and that all care possible should be
used to siip|>ort and preserve thciu, but parti'
cularly dcsuing me (pred' Thomam innuendo)
WILLIAM II L Frocecdhg^ ngmnst Sir IT'm* WiUiam, pjffi
ti> keqi up i(itbecouracrfaii8flndaciiverLiaract«f
wliidi hifl highness (p'd* Uuecm Etior^ iDimein-
(lo) timl bearUof tiie, all whicb I| (pr£il^ Thom&in
Jivnuendci) prouaUcd lo do, wliereujion we (pned*
Thomam el Alagislradi Celiicr inhueoda) witb-
dr€w to ihe iDr*! Peterborough *s» ^vhere we
(pred^ ThcMriELm et Magistrarti Celller inuu^
codo) continued till Iiis lordship (pred' Cfitn'
Peterborough liinuendci) had iQlroduced sir llo»
bi^rl Paytou la tite duke, whicb lieiDg d{>ric, his
lordship left tln.*ni together, as he ([ived^ Cnm*
Peterborough inmiendo) said, and eam^ to u«
(pred^ TltOLiiiiiii et Magistracn CelJier itiniiendo)
where, ntuougvt other discourse, his lorflihip
(pred' Con^ Ptiterboroug'h innueado) told me
(pivd' Thorn a TO iouueudo) I bad o great oppor-
timitj to make my fortuoe wliat 1 would iny-
^i\ if I (pred' ThoDnam it^rnin inrtueudo)
tv^oiihl hut follow the advice of his master tlie
'^iike of York} wbo, aa hit Itirdshlp said, would
vertaiuly he tny kin^^ in a very short time, add-
ii>Sf, thot 1 (pred* Tbomam ititiueoflo) raust be
resolute in my uudert^kjiifis, for said he (pred'
Cufuit^ Peterborouijh iunueodo) the duke (pred'
Diiceu) £bar' innueudo) much alFecta rei^otu-
tioOi but ha^t^ niorUiby th^ tiuvorous mau ;
theo I (pred* Thomam innn<?ndo) answered \m
tftrdAhip (pred^ Comit^ Peterborough iuBueudo)
th&t t (pred^ fbomam tunueado) valued out
my lili/i provided to lose it would be sen Jc4;a-
btc lo the duke^i interest^ at which expressiau
liff (pred' Com it' Pelevtiorough inuueudo) s^&eiu-
ed fuMy satisfied, and froui that tinte eolled me
(pred* Tbomain innuendo) coptain Willou|S'hby,
^nd at our (p*d* Thoniam el Magi^imm CeJlier
innuendo) commg away, his lordship (pred'
* Comit' Peterborough inuuendo) pive particular
order to bis ser ranis, that at what time soe?f?r«
day or tiightj either Mrs, Cellier or Diy^elf
(pred* Thorn Hm innuendo) shoubj come to
Speak with his lordship, we should he fortlj with
' admin ed, and then we (pred' Thoniam et Ma-
^tstram Celher innuendo} parted. Some short
iiine afler, I (pri^r Tboraatn (nuueodo) went
10 wait on his lordship (pred' Com it' Peterbo*
rough innuendo) from the lady Powis at luid-
tiig^ht^ to desire him (pred' Co mil' Petarbtirough
inuuendo) to move the duke (pred^ Ducem
£bur* innuendo) to get me {pred Tbomam in-
uueudo) with lill expedition to tbe king, J or
then I was ready. About four days after this
his lordj^hip sent for me^ and took me {pred^
Thomam innuendo) to the dnke (pred* Duceiu
£bor* ijinuendo) again, w ho was lu hb cloiet
ml Whit€;hall, and tlie duke (pred^ Ducem Ebor*
innuendo) told me (pred' Thomam innuendo) I
must j) re pare myself to wait on the kiag, to
give his mejesty a more particukkr aecoufit of
the Presby teriji'n Pku, than what the httJe book
made mintion of, which hook the duke (pred'
Ifucem Ebor' innuendo) said he had ^iren to
i^t king, and that he (pred^ Ducc*m Ehor* in^
nuefido) bud so onlereit the matter^ that 1
(pred* Thomaju innuendo) should be furnished
Wtth itiuuey to enable me in the prosecution
thereof; but his highness (predict^ Ducem
£bar* mnuendo} ehtiged me to eoiiaiii^ well
my «tory, before t (pre^' Thonufi ii
waited Jn the king ; tbeo Ihf iliilit (p«4' fii»
cem EWr' innueadu) told oae (pud^ Ikmm
innuendo) I hod guined by T05 diligaiii|0t
reputation among th^ tatkfit^, u^iiJ
(p'd' Thora^ innuendo) gboulid b%1ibullr
my services to that caute, adilinf, in i^'i
Thorn* iduuendo) shouhl id 1 eliort ^m m
the Catholic religiub Aoitruli m tibtM ki^
dotti$, and heresy torn up 1»T d» iiioi»l|l
that he (pred' Duoi^tii Bm* hmmiKilki
heard of the proposal which bid kn tai
me (pred' Thomam innuftui?) hylkisfk
Powis und Arundel^ aboot lakitii ra Ik li^ ^
(Sei-eoiasim' Dom' noslr* ft^^ mmM ^
and of my refusal, as also oi' wbii 1 (p^
Thomam innuendo) bad acf«|k(d Rtu^^tt}
lord £jhaflesbury, and of all iitjr trtuvtfMBa
the PrL-ybyterian Ptot^ %&\m^,m tkm wk
{fix.) if you (pred' ThoniaujDiifdWi*'
nuendo) value the relii^on jmur^h^Vfm
tere.*il(iotert»ae pred* Ducii Ebr' ifiW**
as you sny you do* and yourc^n ^"'^'Jf
piness, take my advice (Adiisnatfll'jiirfW*
CIS Ebor* innuendo) and dvpefiil «?» '■f^
nour aud interest foi^ your adfanwii««°t' w
look like a man of coorajje anfl ^^^^ff^
les;a dbcourse may serve ttitii JtJt* ^?™^P^
mam innuendo) than anotber, so .T |.5
will but move by the measarei »!«** * ^f3i
Ducem Ebor* inuuendo) will gitJ 5^
Thomam innuendo) you sbaU oot«**f ,|p^
with fiai'ety, but be rewarded wmt^^^^^F
f actions ; to all ttii^V^^^
s
m
greatness of your j , , ^
Thomam innuendo) replied, I IP^^^il^
innuendo) would stand and fall in ui^^^^i^
of the lioman CathoHc religioo tfiiif f^
ness*s serriae (^ervitium pred' Diai^^^p^S
nuendo) and was not a littJe ctiocert^^^fl^
ref tuning to Igll the king (Scrcniisiinr^^^
num nostrum Regem innuendo) tthmr^^^
Tiiomam innue^ndo) was then well w-^ t
my g-hoatly father, stood condcmtifidi^
retic ; but this i (pred^ Thomam i
offt^r, that if his highness (pred* Lraon^*
innuendo) would cnmmnnd me (pred^T^^
innuendo) lo thi^ attempt, 1 would iKit ^^|
ther to accontplish it, ur lose my triiB^^L
which the duke (pred' Dunem EJNor* &n^^
gare me twenty guineas, and said, if I ^
Tbomam innuendo) would he but riuw* ^
what 1 (pred* Thomam ionneodo) hi in-
take n al ready « he (pred' Duc^m £bor' iD^:
do) would so order it, that my hie ihtM^^
ha in the least danger, adding, in tbeM ^
(vi£.) We are nut to hare men takea ia '
daring actions* hut to bate them make a^
fectual dispatch aud be got»e, upon nl^
(pred* Thoniam innuendo) took mj 9^
Some fihort time after this, when 1 (pr^d*
mam innuendo) was ready to coQTity tbi^'
into colonel Mansers chamber, I (pi^H
naam innuendo) weut to the bnl PWft*"*^
who brought me to the duke (prof
EIhit* innuendo) to whom I to4d boi
Thomaui innuendo) was r^ady to 4
ten in th« fs^lonei'i chamber^ H^
(pred* Ducetn Ebor* innuendo) an-
1 (pi-ed^ ThoQiarD iniiueikdo) must make
t^tiat 1 (ipsum Thomam iteriini mnueutiii)
T** ^ l>e' im|>owereil to niake a general teiirch
>' Uae like nabire, tor mid the dtike (pred* Du-
^ff* JSI:>0)>'^ iteruin innuemio) in these words,
Z^^)_ ^intae I (pred' Du^^n Eljor* iterum iti-
') law yoQ (pmP Thomam ttwum iimu-
Itist, l&c lady Pciwis lias inlbrined me
JDuccm Ebor* iterum iDtiuendo) that
ft re abuudance of letters and witnesses
so iluvh is now higb lime to begin ; by
'^,^tne there was some great man come to
5 ^>«m the duke, w>'r w!thdre»v. About four
^" ai^lirt- ttiWj when I (ipsum Thomam Dan-
^^1«J *i|crt»m innuendo) had been pressing
*^^%ly with., Mr. JSecretary Coirt'Dtry for a
' ^'^Tit, a^^co^ld not prevail, I {ipsnin Tho-
**> i tenim innuendo)' went io the tord Peter*
^JJ^M^lu'ftud did desire his lord«bip to make
ion 16 tlie duke (pred' Dticein Ebor*
Um ipiiucodo) to use some means tor a
. ,^_ ^ut^ to which hi« lonlship (pred* ComJt*
^^^^fboroug-h innuendo) answered, it was my
^JJ'^U there was oot a warrant granted, and thai
^Jit (fuke (prefat* Ducem Elior* iternm mnuen-
^^^ »*as senaible of my nejf lectin^ to make an
^fidafit, aoibat novr, he (pred' Uuceiii Ebor*
^wAiBuendo) did beg^in to donht my courage.
^^^Bioiaa Daagerfieid in Contempt^ Legtimlm-
IB^yteif* Aog-rrnanlfeBt^ in matum exeinplum
* ^^omn* ahor^ itt tali Casu Delim^aen^ ac contra
^" |Micem diet' Doiii^ Kt*gis nunc Coron* et Dig-
flilml' !^nas, tkc. Unde idem Attorn' diet* Dom*
nunc Ciencrar |)ro eodem Dom* R^gfi
adTijiamvnlu% Sec, Et modo scilicet' me
IS prox* post Crast' Hancte Trin' isto eo-
tenti* coram Dom' Rege a pud Wealm'
pred' iVittietmua WiUiains per 8imonem
»art Altoru* auu* et habilo auditn infor-
luation' pred* dccit quod ipse noii in tend it qnod
^Qin* Reac nunc ad information* prod' in Cur*
im^ liesif'is nunc hie responderi velit aut de-
t quia dicit qucnl materia in eadem informa-
menttonat' eideni Willielmo Williams in
ia preil* impobit in partiamento et non in
-^^ur* Dom* Regis nunc hie audiri et terminali
debet et idem Wilhehiiu» Williams uUeriuadic'
d p^ Legem et Consuetud* Parliamenl* hu-
Regn* Aogt' Prolocutor domus Commun* in
imcflt' Assemblat' pro tem^iore existen*
^-Q*bujusm(Hlj Parliament*) secundum ofiicii
mbitum ut minister ejLiadem domus debet et
ftemper eonsueTit lo<]ui ftifrnare et publicaie
tal' process' Atiglice proceedingt diet' domus
* et in tali modu et forMia qual' ipse per
i«m Commnnea stc acaetnblat' loqui signare
fltpoblicareordinat'furetQiiodq; queliliet locntio
si|^iiatiii sen poblicatioalicujus process* ejuidera
ilaisas Comm* per pred' Prolocutor' jaxta
*onlin^ dictor' Comm* in forma prt^d' lact secun-
dum Legem et Con<$uelud' Parliament' sunt
.tttta et facia eonindiii* Comm' sic in Parlia-
'■Wfit* Aseemllat et ut eor' locutio sij^natio
€t publioatio et oon nt Act' sett fact' jjujus-
..modi Probictilpr' propr' aerop* accept* et Capt'
faerunt CliMidt}; hujxismoili Proltieutor de hu-
VOL. xni.
jnmodi locotkme si^rDatioiie aeti puldicatjone
p* ipium Juxta ordm* eorandin' Comm* in
Parhameot' assemMat* sedeo* Parliament* Ui*
fact' in aliqua al^Cur' sive loco qnocuhq; pre-
terc(uam in parliament' respondere uon debet
Et idem W. W. ulteriua dicit quod quod-
dim Parliament' Dom' Carol i S^cundi nu^'
Heists Angl', ht:. p* ipaum nup' lle^m
delnto modo summonit' ad inciioand' apud
Westm* pred' 17, die Oclobr' Anno Regn*
diet* nup' R«.-gi9 31. p' difersaa Prorogation'
continual' fuit videli' a pud Westm* pred' uso;
21. diem Octobr' Anno Reg' diet' no per Regis
32. qtto quidem 21. die ()ctobr* ParliamenI*
ill' a pud Westm' preil' tent' fuit et ibidem ah
eodeiti die usq; tO diem Jaijuar' Anno Regti'
diet' nuper Regis 3'i. suiiradici* cootinuaiit
seden' Quodq; idem W. W.ante pred* 17 die
Octobris Anno SI. aupradict' scilicet decimo
die Octobris Anno 31. aupradiei' apud C\\i\*
Cestrie in Com* ejusdem Civit' debito moda
electus fuit un' Civiu' pro ilicl* Ciritate Cestrie
in eodem Parliament' deservitur' et po«tea
*eilic€t p'd* decimo seplimo die Ociobris Anno
Regn' diet* niiper Regis 31. tiuprad' apud
W*estro* pred* idem W, \S, sic elect' debito
raodo retorn* fuit un* Ci?ium pro pred* Civitate
Cestrie in parliamento ill deserritur' pmut per
rctorti' bde in Cur* Cancellai' apud Weetoi*
pred' de Recoitlo remauen* pi en i us liquet et
apparet et duran' toto tempore Parlii^nienr* ill'
idem W. W. fuit et remaosit un* Comm'
in endem Parliamento Quodq; idem ^\ . IV^
ad pred* Ses^nion' Parliament tent' per p*ro*
gatioa* ut prefurtur apud Westm' pred* dicia
vieesimo primo die (X'tobris Anno St. su-
pradict' apud* Westm* pred* debito modo elect*
et constitui* fuit Prolocutor' pro Commuuibtit
in eodem Partiamontit assemblat et sic prolocu-
tor pro Com muni bus in i^iirtiamenl* ill' asi>etti-
blar* idem W. VV. continuavit usqv dissolution'
ejusdem Parliamenti quodq; in eadem Session*
Parliom^^nti pred' ad inchoution' ejusdeni Ses-
sion' videlt* vicesimoprimo die Octobris supra-
diet' apud Westm* pred* idem Dom* nup* HtJt
allocut' fuit tunc Dominis et Communibus in
Parliamento ill' as&emblat* ad p'sequend* uttc-
riorem examinationem Conspiration* Angtlce
ike phty cum stricta ct impartiali IiiquisitioAtt
et eis adiunc et ibidem dixit qnuii ipse non pu-
tavit seipsum neq; ipsos secur* quonsq; male>
ria ill' perageretur. Et idem W. W\ ulterius
dicitqmid in tadem Session' PHrlianuui'suprad*
que aptid Westm' jired' continuavit usq; de*
cimu' diem Jauuar' Ar' Regn' diet' nup' Regis
32. supradicrto otraq; dumus Parliament' illius
in p'rosecution' diet' direcliouis ejusdem nup'
Regis strictam el impariiar inquisition' de pre-
mentionat' Con^iration' de et concenien* dioto
nup' Rege fec^^runt, Et super Inquision' ill' in
eadem Hcssion' V*arliament supi-adici* pred'
Thomas Daogerfield in iufurmation* pred* so-
Iierius s^>ecificat' pred' Libellum inlilulal* * The
nformation olTbomas Dan gerfield gentleman »*
ul vcram iRformatiou* suam de Conspiratione
pred* tam Dominis Parlia»nent' (eodem Parlia-
ment' in domo sua apud Westm* pred' Asiem-
4T
-joret impress' Anguce - snuuiu oe uniiMni ica-
isteti' prius prelect* Anglice < Perused, et
tignat' p' p'rolocutor eoruDdem Comin*) et
quod idem Prolocutor nominaret et appunctu-
aret personas ad infbrmatiou' pred' im(irimend'
per quod idem W. W. (eodem W. W. duran'
tot' Session' Parllamenr' supradict' uno Comm'
in eodem Parliameuto Asseinblat' ct Prolocu-
tor Domus Comm' i\V ut prefertur existeo') in
• prosecuton' ordiu* pred' ut Prolocutor Douiub
Comm' preiP postea et duran* cadem Session'
Parliameoti pred' scilicet 10 die Novembris,
Anuo Regn' diet' Domini nuper K^is 32. su-
prad' apud pred' Paroch' Ssancti Slartini in
Campis in uicto Com' Midd' pred^ lui'urm-
ation' dicti Thome Daog^erticld eifideiii Com-
raunib' hujus Regn' \uffV ut p'fertur e.\Ui-
bitam periegit et siguavit apponendo nouocu
Willielmi Williams Prolocutoris Domus
Comm' pred'. et adiunc et ibidem uppunctuavit
Tbomam Ncwcombe ct Henricum Hills (ad-
tunc Typograplios dicti Dom' nuper Regis)
ad impnmend' dictam Information' p'd' Thome
Dangerlield juxta pred' Ordin' eorundem
Comm' et Officii sui dfbitum £t superinde
dicta Infbrmatto predicti Thome Daiigerfield
postea et duran' eadcm Session' Parliamenti
ficilicet 10 die Novembris Anno Uegn' Dom'
Duper Regis 32. supradicto impressa luit per
eosdem Thoroam Newcombe ct Ilenricum
Hills juxtu ordinem prrd' videlt' apud p'd'
Paroch' Sancti Martini in Campis que quiaem
appofiitio nomiuis Willielmi Williams Pruloc:u-
tor' Domus Comm' p*d' et appunctuatin pred'
Thome Newcombe et Henrici Hills ad impri-
tnonrl' flint ft m Infnrmntinti^ n'(V Thatrip1)nnar<»r.
he was at that time reside
and had so entirely retired I
that he was obliged to bom
in court. For this informs
to the kindness of Mr. ^\
possessed some letters froi
unfortunate accident they
lately), upon the sulject.
SIR ROBERT ATKYNH
The Information taken
(without the Defendant's P
severe and heavy charge
defendant, set out w iih th
* From a Tract priiitc
*< The Power, Jurisdictioi
** Parliament ; and the An
" of Commons asserted :
*< Information in the Kii
<* Attorney General, aga'>i
*' the House of Commo:
" Atkyns."
In the casex>f the King
Term Rep. 293, it was arc
motion for a criminal in!
bookseller for printing and
of the House of Commons
in fact been previously prii
Hou8e,]_reflecting on tin
Home Tooke, that the 1
themselves were not justil
(rivinnp ■ sonntiAii fn the* nn
Jin^puhUikif^Dai^erfiekPs Narra^. A. D. 1695.
[1382
IS agaimta gentleman of the pro-
i law, and one who hath had the
Speaker of aereral parliaments,
^bserre in this Information the
ctiires or epithets fastened upon
: it stiles him, a pernicious and
It charges him with the worst
:. stirrinff up of sedition, disturbing
he kingdom, endeavouring to pro-
etwcen the king and his sutijects ;
the duke of York into contempt
and his subjects ; and with the
publishing a false, scandalous,
infamous liM. These crimes
e set out in Mr. Attorney's Infor-
he worst of adverbs ; and with a
them together ; viz. That these
one by the defendant, falsely, on-
istly , wickedly, maliciously, scan-
tiously and devilishly. And to add
r> all this, it is charged to be done
i* the basest principles : out of
for one of the most sordid and
viz. For his own lucre.
Iher be observed. That the Infor-
lot al ledge or affirm, that there is
>r6on in the world as Thomas
(though it mention the name ;)
such person did ever frame or
f such scandalous aod libellous
rmation, as is mentioned in Mr.
Turmation. But (for all that Mr.
ws) the name of Thomas Danger-
but a feigned or borrowed name,
1 libel. The House of Commons
{ti6ed in making the Report in
smuch as it reflected on innocent
It is the undoubted right of every
is accused of a crime, to be tried
the country ; and as it appeared
r part of the publication in ques<
. H. Tooke had been acquitted by
a foul libel on him to sav that he
*the crime of which he had been
ind it was mentioned, that in this
sir W. Williams, where an infor-
filed against the defendant, who
iker of the House of Commons,
I a libel, " Dangerfield's Narra-
determined bv this conrt that the
as not iustitied in publishing,
id published as speaker, and by
ilouse of Commons. This deter-
remains in force, notwithstanding
pts in parliament to get rid of it ;
rt Atkyus in his *< Treatise on the
idiction and Privilege of Parlia-
cates the legality of this deiermi-
m <l<!cision therefore proves, that
' Commons themselves cannot jus-
shin*^ of any matter reflecting on
odividual.
nl Kenyon in giving judgment,
»f R. V. sir W. Williams, which
ly relied upon, happened in the
i : but that has no raatioD to the
and that the defendant may be the author and
composer of this libel, as well as the publisher*
And one would not imagine, upon reading Mr.
Attorney's information, that any thing of these
matters thus charged, was ever transacted in
parliament : bnt Mr. Attorney gives them ano-
ther date, both of time and place. He does not
lay the scene at Westminster, but at St.
Martin's in the fields, and he times it to tha
year 1682, whereas there was no parliament io
that year. This was warily done.
Thus the case stands u|K)n Mr. Attorneys'
information, aad should it be left here, it would
be a woeful case with, the defendant ; but as
Solomon says in his Proverbs ; the first in his
own cause is just, then comes the other party
and enquires into him. The plain Enghsh of
which is, as we used to say, « One tale is good
till another is told.
The Defendant, in his Plea, states the matter
truly and fully, and tells ns, that there is no-
thing true in this Information exhibited against
him, save only tliat there was such an infor-
mation of Daugerfield's, but that the defendant
was none of the author. It was drawn up and
delivered into both housies of parliament, first
to the Lords, upon oath ; and there ordered to
be entered in their Journal : and afterwards de-
livered at the bar of the House of Commons.
And that the Defendant, being Speaker of tlie
Commons, he examined that Informotion of
Daugerfield's, and directed the printing of it :
but it was all done in tione of parliameut, and
ordered to be done by the House of Commons...
present case. There the publication waathe
paper of a private individual ; and mider pre-
tence of tlie sanction of the House of Com-
mons, an individual published : but this is a
proceedinir by one branch of the le^i^itlaturev
and therefore we cannot enquire into it. 1 do
not say that cases mav not be put in which we
would not enquire, whether or not the House
of Commons were justified in any particular
measure, if, for instance, they were to send
their Serjeant at arms to arrest a counsel here
who was arguing a case between two indivi-
duals, or to grant an injunction to stay the pro-
ceedings hens in a common action, undoubted-
Iv we should pay no attention to it. But the
Report in question, being adopted by the House
at large, is a proceeding of those who by the
constitution are the guaniians of the liberties of
the subject ; and we cannot say that any part
of that proceeding is a libel.'' And Grose, J.
added, '* It must be remembered that that [the
case of sir W. W.^ was declared by a threat
authority, to be a disgrace to the country."
It is remarkable that in this case of Rex
V. Wright (8 Term Rep. p. 294) the Reporter
i*epreseuts the learned persons who argued in
support of the application for an Iiifoniiatioii
to have stated that sir Robert Atkyns, iu this
Treatise on the Power, Jurisdiction, and Privi>
lege of Pariiament, vindicates the legality of
the determination of B. R. in sir William niU
liamt'scase.
w
wmt^^
lassj
7 WILU AM m. Pfiweedingi iigBfiti* Sir Wm. mUims, flJII
By tim niTrab>e of the Pfea» ill th^uttloui^
iijji?ctives and uotoward ftdTeriw are thrown Rff,
mvA thft fJ«^D<)aDt cleared fram the matiee.
Nor is it tnie tbot is sitiij iti Mr. AttorDey'f Iit-
fbrmntipn, to l»c done I'wr the defendoiil*« lucre.
He diilit out r^«f obedience io the pavlititneiit ;
and he litniiss* tbul he itiatle any profit by it,
hut actJfinJing to iht? order nf the Hou^; the
}ir<ilit otVihe (ftmtiod was t^ tJNujDT^rfield, '' Aud
all thk is eon*"ei«ed by t^^e deiniiTrer.
The plsH couiiisttj ot tiie»e p^n^ t matter «f
lacli matlei- of record, and matter of law. !t
befbswith matter of law; and sets down the
law and custom of parliament. Then he does
aisume the matter of fact, oud of records and
brit)^ them home ta that law. He tells ui^
Thot, for C4»rtain, there was sudi a thing atf a
Pojjish Pl«l, and thatit w»sa.de»jieraie, horrid,
detiUfh plot. And here all the Ititter tdjectiirea
and adverbs would hare been well besLewedp
rather than upon the speaker ef that imHia-
ment; which parliament with aneh admirable j
zeal and canragc did prosecute somm of those
pbtters.
He lets forth, that tbe lord Btaf^rd was m I
paHi^menl conrict belWe tlie Lords of High i
tre«»on; committed in that plot ; and he was
convicted at the prosecotion of the €«nimoni,
acc^jrtliiig to the law, and ccstom of parlia-
megt^ He say»^ that the king' in his Hpee^i
to ibe Ijonh «md Common^i charged thi^m to
make a furllier itrict and impartial enquiry
alier thk plui. Then the plea tells uv, They
did accord in |j[ly make an impartial onquiry^
and divert otiiert were tbereupon conr ieted ni'
that plot.
It now appars plainly, that all that is con*
tatned in tlus Plea was not only done during*
the parliament, but by th« parliainent itsdf ;
and thai the defendant only acted ns speaker.
Aod itia worth the remeniueriii^ti-o, (hat there
has been anoth«>T parUameot ^ince, nimiely that
M Oxford. And though all that was done hy
him in the parliament at Westminiiter, was then
*«ry well kiKiwo and rememhere^i ; and though
be were »o pertucious and seiHtious a mau^ in
the opinion of Mr. Attorney *fi iuforDialionf yet
the world had a heiter opiiuon of h;mT for he
was chost^t ."Speaker again » in that ht^er parlia-
ment, and his mfLjesty approved of bin.
At ladl^ the det'eiidant concludes hli plea to
ihejuriidiclion of this court : liz. That what
he had Kti acted ^ being acte<l in parliament time,
and hy order uf pftrliurnt^ntr he ilemanda Hio
judgoient of tbis court, whether they will take
conusance oC iL
The Attnnicy General demivred to it*
The^aubject matter of this record slavery
large field, vi;i. The Fewer aud JuriadrotiaD ol
PiirUAment, and yet 1 shall have hut a narrow
path to T^alk in. It ia a very nice and leader
point ; it li my case, as it waa bacctofore with
tbote th»t were tu and(*i|^a the old SaKtm trial
by^ fire ordail (per ferrum csmdeiis) if I li^ead
*««ifle imd muke a wrong atep, I m^ do tnyiclf
• mischtri; But by the grace of God, I fhall
tall ecare aeitlier oo the one hand ti> gtw tij jmI
occafflon of oHeuce to tti^aie abofi^ tnc ; am m
aa the Qth«r band, ftUnll f !>« vwiiiif iiM
dutj I owe to the kiofdam'i ca^H. I ill
afjcak my mind freely in ii , and leite die mim
1 0 God . And while} i umi ar^ur lV>r tN im*
dom of acting in f^arliamenf, nvtA i^Aim ^
Hpeaker, and ^ndenf (»urU» taitintiiiulbn.t nghtti
and prifitefes, I may jiiilly ctmi«ilbit«taf
and reasonable prtfilfj^e lor inyw^t, llH il
happen tmaviares to itiiH^plac^ aVitrd, drtnk
imsiippreh ended in wh»t 1 ssi^% A mvy Wiit
liberty iniftanily to expbin m)fi44f Ami tab
myself to lie under the priolectiua of tk tain
while I argae ilm law.
In arguing this caae, ! iliall mtk ttni
points, or lay down these three iKHLtUom '.
1. lliat what b done in lUta catr Jt ilopt i
a CO nrse of justice, and tliut in il^ehi^eil
of the nation (the paitiament) aud accunlni|i
the law and custom of piarhameiit^
2. Thit howcverf that which is d^trtalfill
case, h not to he impuictl to the defeadabt, vll
acted in it but as the servant or mimster «f tSi
parliameot, thougtiin a very boo<>uraUe«liMi
3. Tliat these being ma^ltera trausadtJ il
parliament, and by the padiameni^ tl««i c«ill
ofthtf King'ii^hanch ou^hl not lotatrooot*
mace of tbtm ; nor hatb it any jinisdiciitfB li
judge or deteFmine of them.
As to the first, 1 shaU frame lHi» sTt*«pnii
Mo indiciment or action lies tsir wlvetii At ii
a comae of justice, or in a ^av of le^l ff^
<^eihng^ Bnt what has been Jone by th« is-
fendant, and liy the Hou^ie of Coon moot to 1m
case, bath been done in a coui'se of jn«tier,«4
in a way of legld proceed in(^ and tlisl mlN
bigheat court of the ntLti«n« Tlierefore riii
haih been here done^ is neitlrier subject to m
action or indictment,
I fihaU first pmre the m^pr profaiili»:
That no indictment or action lies forwitt*
done in a course of jusiice.
The rea^n of the law is. That the lav ss4
courts of law, and jusiice, and remedies afv^
wrongi ought to \m free and opeti ; and cw m»
most oe frighted nor disco urs|fed fnMn a itf^ti
provecution of his righl*
To prove this, I sliatl make bold m cits ibr
opinion and anthority of » Inwa- clerk. 1^
report of it is in the Hdy Scripture, the livcrt
and highest repoil. It was the opiiikai sai
advke of the t4>wn' clerk of Athent. l\ewe#
it in the Acts of the Apostles, and it inslsatff
^lled and nuieted a mighty uproar, it hiiii
much weight in it. 'If any niaji/ saytl%
* have any matttr against anether, the W ji^
' o|ien, and there arc deputies ; let tbecQi* flfi,
he, ' implead une another,' ,^J
The prtie^ to a suit in law, tlie connM*
attorney, the ^vitness, the officef^ tlMJiii
ail under a prutection of the law for wMl
do 01^ say iu the prosecution ofa suit '
any lejral pfoceedjng,
J will put some ikw caseisnjiei
of these wha nre ibe sercr&f «ctori
tUMtM
liiil
X
K Afl.,
JtgrpMiAing DmgerfUU^^ Nmt9the* Jl« D« 1^5*
[I3M
lltt, tf ^ B. Si fdtkd ilie stAt. or W.
t rtfOfti ilaii4l«ft»at iivws, wti«iret)jr
•jr glKMV betweeo lll« luiif^ and his
iJie grettt ni«fi of tli€ r^nlm, i« to be
i, till the tir«t uiithur of tbe Uile be
ito tbe court. This comes near our
1 tilts IS all th« punishment ttiat the
li>6tiiupon this crime of reporting: snob
Mte in hiH exposition upnu tbts stat.
Instit. 9?e, says, That this stat, ex-
to enirajudicial slanders. And tt>erp*
he, it' any man bring* an appeal of
robbery against any of the peers of
» although the char;^e be false^ yet
he p9er na?e an action De Scandal is
n, neither at the common law, nor by
d' W. 1, nor iioy other stat. ibr any
al, nrir for alHnning^ the matter of it
either to counsel or attorney^ or for
he «»amc in evidence V* u jury,
he Wtrd BeaiKhamp'!* caae^ 13 H^ 7,
«>» a7i '2B Sir Ricbaixl Cmfts sued
brgcry of false deeds s,rainst the lord
iji : The lord Hcnuchump sues sir
^As in an action De Hcandalis IVfa^-
on the statute of 2 R. 2, c. 5, for iliiv
^kmng htm with for^ry , Keble,
Hr the loi^ B. admits, tliut at the
■fr no action did lie tor lliiu slander,
a eoiir»e of Ifgul proceeding^. But
ii i*ni, that thl^ statute uf S H;
■ •in in such a case, though it
mfier occasintte<i by a suit. But hy
ike rest uf the cniirt, the action De
ilfnatum, did not lie for such a slan-
h Iht matter id it weit? false, liecnuse
is«3cution of a lawful suit. With this
uhon and Chphum's ease in Justice
f[>. *3 1 , and VV estou^s case, Grok . Jac
^oke puts the dif&renee in his 9d VnHt.
4. If It man prefer a bdl in the Htar
m^amst a ^-reat peer, and chart;e him
ry Of perjury, no action De 8cand.
i», it tu^in^ in a Icffnt proceediu|«', aud
si 'in thiit court had a juriedic*
ha bill in the Star Chamber
locmeii *br felony (which that cmrt
HS^^ fiith, nor nc» jurisdiction in)
'WT B. Coke) has not the face of a
ledin^, and ;»hall not excuse a man in
tScand. Magn. sir Rich, Buck-
kp* l't| Cro. Eliz. 930y the same
tcre there is but a mistake of the
t one« well commenced,
' : 1 .»^.« in the proceed in||j[s
eiffpoiie Ihem to the action De Scnnd.
ir a niiti bring on apoeal uf murder,
^ the t|^or«nce of the party, or his
Homey t it is made retiimnhli^ in the
Pfeas/uf^-. r- in. '.,,,' . \ < y:r.
yet no t h%
(6 suit hettr^ wen iwjjuii, iiii*i n ut/iiig^
tre of a lawful toit. So says sir E.
^u$ of t oonoifilor pleidiog for hii
He likcwbfr hi what he affirms or pTesds for
hischcnl, if it be pertinent to the matter of Ih*"
suit, and he has it by instruction from htsclieatf
he shall be protected agaia»l an action of atan*'
der foi- it. This is a point that may cooosra
many of us.
It' was the case of sir Hen. MoaDtsgu w^
copder of London, M. 3 Jac. Cm. fo, 90, in B.
It fiuL Bro#k bfou*rht au action upon the.
case fbr &lander agatnst sir H. Bi. f»»r saying'ot*
the pi. Brookf that he had cotnmitted Nelony.
8if if. M. pleaded specially to the action, That
he was a counihellor at law, i^nd was rctaintit
a^nst the pi. Brook, and at the trial in giving
of evidence to the jury, he did indeed speale
those words ; but arerred that they were perti-
nent to the matter, and wei*c part of his instruc*
tion. It was revived upon a demurrer, That
tlie plea was ^ood» the words bein^ pertinent^
tboug^i they were false. And there is a fiirtl^er
reason given by the conrt in that case, viz.
the worfls »p|iear iic»l to be spoken out of ma-
lice : and r»o actions of thi«i sort, nor will any^
indictment of this nature lie, unless there b«
malice in the defendant; and where there is
any J usti liable occasion of speaktng^ words that
a man in dischar^ of bis function or calting^ is*
led by the subject- matter of dbcour^, as ^
preacher, or {deader, or the like, to s|)eak words -
in such case ; it shall be presuiited they wsft
not apokan out of malice.
In the case of an Attorney.
8ir £. Coke in his 2d Instit. h his ezposiHoii
of the Stat, of Articuli super ChdJtas, 28 E. 1,
c 10, tells us. That in the very nt'jrt year after
the making of that stat. viz, Q9 E. l', WilK dO
VVenton broug-htan A ctii in of Conspiracy in th#
Kini^'s^ bench, against William ot ff enijts%Ten,
piinMin of NeirtoR, and John of Mntden, parsott
of Askerby, fur causing the plaiutijf to be citsd
l«»forr the archdeacon of Lancctn for a trespasip ..
whf-reof ht* hafi been acquitted in the kmg*S
court. John of Mahlen pleaded, That he was
' Commnnis Atlvocalus pro suo dando/ and so
jiistifit'd as an attorney ; and it wits fonnd thtf
parson ws^ Communis Advocatus, and so not
guilty of thtfciitispiracy.
Id the case of a Witness : For what he ssji
as a witness or for what is said against him, to
disable him from beine a witness, or to take off
his credit, no action of slaodf r %vitl lie.
35 H, 6, 14. In »n anion of com pi racy, out
of the dffendautsiusiified as being a witness, t^
the jury.
Crok. Jac. 452. lo the King's-bench, Wi|v
too igaiost Dobraeet, in an actioti for slander.
There was a suit in die spirit aal court, and ths
plaintifl* thai brought the action of slander , wai
prtntuc^ as a witness in that cause, and the
dclendknt in that «uit in the spiritual court, put
in exoepiious against him, That he had beea
perjurra, and therefore i>ught not to be used as
a witncMt. Thereujton, WestOEk the witness,
brought tliis action tor that slander. And alter
arguments, the whole court held, thst the b£>
lion of slander did out tie for this malltM^r of
slaodf, bectnts il wis iii a t^tint of justice,
•ftd (Mi M UMidcia.
1387J
7 WILLIAM III.
Pfocsedingi againsi Sir /f m« WUUsMis^ [!
ible, for tUe safety of the Liof^ tud iiit ^
if a tncin be subject to an actiea fof it,HwJU|
a me£Liig that Ire&soo sb&t! l^e tmotberd, i
meD wilJ Qcit expoftc tbemwlfft tu idira^t
J. HDug^fitou held tbe action wtuM baI
upon &n i^iininnK fcmmi ; r<>r by ibn ll
party is tiat acquitted, but niiv W itt^
again ntiit con^icietl. Uui lie hoiili, tin f I
be iu<Uf:(«dt and wmn trial * L^itiaio ftiaiil
^ (X*ii«tatu5/ ill en ne shall biire »n icumi)
llic case^ in nature of a coti^^nc)' ; for i
be is absolutely aer|iittled ami lii^ i(l
acciisatioti, tin J nevir can be indtdd ipii
ill at particular lad.
Dudileridge agrees m\h Houijliioo.aiJf
tbb case ; if uu action of cvtiffirtg
brought apiJDSt ti uian, for indictiag iie
lifT of trea4S(^n« itie defcndaiil timj
cially (aud tbat is tbe safest- way r ^
that lie beard tbe jilainttif sj^aksucbsifiA
treasonable ivords, and lb at \m ibifmifM
plained to a justice of peace, Hha
ttia plaintiiT upon il, aod thi« {iia;i he)
excuse him.
Ley f Chief justice, inclinet loo i|^
acttoD, and givea a aferong Fvaxoo, '
be, it \^ misprision t» coQeeal it ; lad J*i
allow of this action, it sball be d«agEf«i
to di&coTer it, ao tliat ilie defedbit
* Lupum auribua tenere/ Aiid » »k|
inent was arre^ied.
But we find, that sooo after, wlicn lltj
of tbat court were cbangcil^ the «ame|J
brought a ne\v actioti for tlie same ciii^ = ^
it was adjudged for tiie plaiotiff, that ib*it
tiua woutd lie^ but tbe Judges adcciuvNH^
was the first precedexit. 1 suppose it m^n^j^
pjeadipg not guilly. Perhaps tbe wurt*^
have been of anottier op in ion ^ bod tbt W
iog^ieil
In a Writ of Conspiracy, One of tbe de-
fiindafits |>)eadedf that be was one of tbe io-
tlicl<ir«. Judtrmcnt, li atUu. And the plea is
aUuwefJ, m H. ti» 5. and 3S.
Nay thougb it be not in a couree of justice,
in a iuit of lnw, yet if a man be in tbe doiuje^ of
liis dut^, and in di&chari^ of his fuuetion and
tiii lawful caltijoif, and in rliscoursing of a sub*
jeet firoper i^t hi* funclioo, aud enforcins: of
wary man^a duty of avoiilingof any iia^ and in
pomiiil of it, tella a ator^ wbicb lie ^kea tip
upon trust, and doe« not knc)W it to be (a1^,
ttnd it prove £ii ta^t to bt' utterly untrue, and an
lDQoe«nt person i^ highly sJandered h^ it^ yet
lie iball not be mibjccl ti> aji action of slauder
0)r it. Tbe occasion of Ei|ieakin]gf shall clear
him froui tb« malice, without which tlic action
will not be.
In the Book of BlartjrSt written bv Fox*
UiCTe is a story of uue Greeuwood, wboli^'cd in
Sufiblk, tbat be had perjured bimt^If beloretlie
byiap of Norwich, in t^Jyiup' n gainst a
maflyr tbat was burnt in queen Mary^» lime :
AEid» say 8 Fox, this Greenwood afterivank, by
Ihi just judgment of God, bad bis bowels
fotleil in niiiij and so he died.
This stiiry by Fojc in bis Book of Martyrs,
Wli utterly false of Mr, Greeitwood, and afler
Ifet ftioti^ of that Book of Martyrs, Mr,
Pffienwoodwas biiug in that very same parisfi.
One Prist a parson bappened to l>e preseiiti^d
la the living of that parish where this Mr.
Ojreenwood then dwelt ; and ^1 £Xxz. in one
of hii first sermons, happened to iufeigh
ft|;ajnst tlie sin of |>er]nTy ; to wltich ht5 text
did le^d bioj ; and the better to deter the peo-
ple froui the sin of pt^rjiiry, be told this story
out of FiJX^i Book of Martyrs, ^nd named Uie
very man Mr, Greeuwooil ; arid Mr. Green -
wood himself was then in tlio church, and . . , . ,
beitrd tliis story toldof bituself, but the preacher datit [ileadefl specially, and justiJi£d,ac!COMf
knew It not^ fiut thou^lit tbe story to be true
Greejiwood brings au action of bjanrier ugaitiit
prist tbe preacher ; aud ngou the trial uf tbe
cause before the L. C, J, \\my\ tlie caij*: ap-
rriufj to lie thuii, be directed the jury t:) fiud
the defendrtnt, for Ihai it apppjired it was
not done out of malice: Ami C.J. Pophaui
atftrmed it to be good taw, it being a in alter
delifCred after his occasion, as matter of story.
This caje i^ cited by air E. C m sir Henry
Mountagu's case, before meutioncd. Crook,
Jac. f, ^0. With this agrees the cas^ of the
lorrl Cromwel, n^«inst Denny tt vicar^ 4 Rep,
}3, b. iu an action ile Scand. Magii.
There is a case in many circunistanc<s of it
much resenibho;^ uur case. — It waa the case
between ^aiith and Crash aw, and others, M,
30 Jac. in liie Klu^^'s bench, in air Jeffr.
Palmer's Rej>. 3] 5. An action upon tbe case
in there brought against tbe defendants, for
molidonsly causirig the plaintiflT to be indicted
of treatiou ; upon which imiictment the grand
jury fosrndau ignorarnns. To this action the
defendants pJradtMf not guihy, aud were found
fu i lly , 1 1 w as \m\ eii to ^Tteal of iud^cneo t ;
btt to ftccUie one fot UeasQiik ¥i^ i^%^^q^>
'
k
tu the opinion of judge Dodderidge. TSh *
is Cro, Car. 13 ; Sc Latch. 79,
The allowing «f such actions of e^ofl'^i
or upon tbe case^ or of indictmeBi* Q"*''
matiuns for what is said or done in a ^^
of justice^ and eispecially by way (if ilis<5**I
of treasons, would prove of a mi&cbieȣns*
sequence; and would be an occasion ("f**
tipl^ ing actions against the parties wtl]* ^
against counsel, the attorneys, the witness*
so suits would be infinite. As in thisprtseiii*^
should an action be adjudged to lie ip^*J
defendant for what he has acted by «atlwrtff J
narhenient, what a niulliiude of icw"*
he stirred up by it ? If i\\e Speaker tw ti*w*
this information for what he has doue: K' *
same reason be would be liable to the ww*
the seiperal great ijer sons iliat are said io Ik.*
famed by u»e printing of Danger^tW'i luj
rative. Aud if the Speaker be liibltt ^IJ^fJI
ed but by com maud of otherf , lEid ^ "i
minister," how much more would til ^^^
£:ons he liable, by whose command beiiiiiE|"
And how many narrAtif^es bare there »
printed, wherelu several great perscaf •*
^^«x^ ^^%^dbadQu^ audliow maaj ^^
Jbrpubttsking DangerflekPs Narrative^
So
A. D. 1695.
riS90
latnre have tbere been printed f
! would arise a mulUtode of suits.
Drue Drurie's case, 6 Rep* 74. The
ijudeiuflf of that case, ^i^e a rery
e and caution : they say, That judges
have good consideration in all cases
I before them, not only of the present
It also of the consequences, what ge-
jodioe may ensue upon them either to
ir subject The case before you ex-
r requires that consideration. The pre-
the king will be, that he will not be
>y this means men will be discouraged
overing treasons. The subjects will
trejudice, by the multitude of suits
arise by it This may suffice to be
aintaining the first proposition, That
lation or action lies for what is said or
course of justice.
inor proposition is, That what is here
the defendant, in this case, was done
se of justice, and in a legal proceed-
that in the highest court of the nation,
»urt of parliament) and done accord-
t law and custom of parliament. This
ake out in the next place,
making this out, I am under a ne-
' speakmg of the transcendant power
^ court of parliament, and I must as;
\ positions following.
It the House of Commons was ori-
md from the first constitution of the
le representative of one of the three
' the realm, and a part of the parlia-
it what is done by either house, ac-
D the law and usage of parliament, is
, and in the judgment of law, the act of
i parliament : And that what concerns
nust of necessity concern the whole ;
ly by consequence, but by an imnne-
oemment, as being one and entire.
It what hath been acted in our present
the defendant, as Speaker, and by the
r Commons, whose minister he was,
hose command and order he did what
was done according to the law, and
parliament.
he first. That the House of Commons
.the first constitution of this kingdom,
the narliament. There has b^n an
that nath been stiffly maintained by
nes, and others of late, that the House
ions originally were no part of the
at, at least not as now elected, and
I of knights, citizens and burgesses ;
their beginning was in the 49th year
lenry 3, when that king had given a
rtbrow at the battle of Evesham, to
If ontford earl of Leicester and the
And that to balance the power of the
lat king caused the knights, citizens
ssses to ne chosen, aad to make a part
rliament. And from hence some un-
ovating writers, ' quorum res, et spes
ione pendent;' and who would destroy
DSy aid rtmoYe our ancient land-
marki, and the ancient and just Ihnits and
boundaries of power and "authority ; persons of
necessitous estates, or of greedy and ambitiouf
appetites, which' drive them upon devising how
to do some acceptable service to those that
maintain them : or at the best out of unsettled
judgments, and too much zeal, which carries
them to a contrary extreme. These men con-
clude, that thercfure all the power and privilege
the House of Commons claims, is not by pre-
scription, but that they depend upon the king't
royal will and pleasure, and had their ortginai
by his mere concession, and not hy ancient
inherent right, nor original constitution, and
therefore may be resumeil at pleasure.
It was one of the Articles against Dr. Man-
waring,* in the parliament 3 Car. 1. for whieh
he wus impeached hy the Commons, and sen-
tenced by the Lords in parliament ; that to
subvert, scandalize and impeach the good laws
and government of this realm, and the autho*
rity of the high court of parliament, and to
avert his majesties mind from calling of parlia-
ments, and to alienate his royal heart from his
people, be did in his sermons, and in his books
Krinted, endeavour to persuade the kinff : that
is majesty was not bound to observe the laws
of the realm concerning the rights and liberties
of the subjects : that authority of parliament
was not necessary for raising of aids and sub-
sidies. Hi^ sentence was imprisonment durinfl^
pleasure, and but 1,000/. fine for this high
offence, not 20,000/. as hath been of late times.
He was to acknowledge his offences, as it should
be set down by a committee in writinfi^ at the
bars of both Houses. He was suspen£d from
his ministry ; disabled to fireacli at court ;
his books were to be called in, and burnt in
London and both the universities.
Power limited by law is safest It may bs
thought * Potestas minor, sed tutior et diutur-
nior. £a demum tuta est Potentia, que viri*
bus suis modum imponit'
To encounter these new and upstart opiniooSy
I shall mention an author or two, whom all
sober men reverence, that are of a contrary
judgment to these new authors. And they are
eitl^ eminent lawyers, or divines. And I am
the more encouraged to do it, because his
majesty that now is, hath upon several occa-
sions wen pleased graciously to declare, that he
holds parliaments to be the best method for
healing the distempers of the kingdom, and the
only means to preserve the monarchy in credit
at home and abroad ; and he promises to rule
the people by the law.
Hales, that solid learne«l divine, in his Golden
Remains, cites Baldus for it : * Digna tox est
Majestate Kegnantis, leg^bus alUgatum priu-
oipem se profiteri.'
And learned Hooker, that great champion
for the discipline, and for tlie rites and ceremo-
nies of the church, in his Eccles. PoUty,
delivers his opinion quite contrary to these
time-servers. Pag. S7. ' All pubfic govern-
• See T0|. 3, p. 336, of this ColleotioB.
4
JWl] 7 WILLIAM m. . Procee^tigswgainti Sir Wm. WWiam, [UK
pMot,' (Mt he) ' of whftlkiiid ioeT«r,fMiBcth
•tfTidaiuy to hare oriwa from driiherateodTiee,
coMuluttion mod oompontMHi botwoen moi.
That eompoflitioB sigiiiBcs the UwnJ And,
faff. ^. he says fiirtbery ' That the power of
BBUiing kiwa to Gommaod the whote politic
HQcietiei of oaeo, belonga properly to the nine
entire Mcietics/
. What can be aaid more in confutation of the
that goea hy the name of air Rob. Fil-
The dnke of WiCtemheiy, at the cooncil held
nt Wonnce» when other priocca disoouncd of
many priviiegcf and conreniencea of their
lordshijpa and territories, openly protested it to
he hie greatest iUicity, that he could * in aperto
* oampOyOtin sinasubditoram suomm dormire.
* Mon.espet maari jaculb, nee arcn,' &c.
. 1 shall further add onlv the judgment of
one or two of our most nmoua and learned
judges concerning this matter.
Forteacu, tfiat was first lord chief justice,
and afterwanis lord chancellor in the reign of
H. 6, in his ezoellent book in commen&tion
of the Lawa of England, affirms this doctrioe.
* Ad tutelam l^gis, sobditorum, ac eorum Cor-
poram et bonornm erectust rez est. £t ad
aane.polBstatem A populo effluzam ipse habet.'
8ir£. Coke, in bis 12 Rep. 64. ddirered
his opinion freely in the Case of Prohibitions,
before the king and the lords of the counsel ;
where there was a warm debate between the
judgea and Dr. Bancroft, archbisliop of Can-
tarbury. And what sir E. C. delivered for law,
was with the clear consent of all the justices of
Eugland and barons of the exchequer. And
there sir E. C. savR, it was greatly marvelled
at, that the archbishop durst int'orm the kin^,
That the king had au absoiute power and au-
thority by the word of God to determine what
causes he pleased in his own person.
Audit is admirable to observe u ith what a
true and honest courage that grave chief justice
sir £. C. answered the kiu*^ himself in that
debate. When the king was pleased to say,
It was treason to afiirm, that the king was
under the law: The chietju.sticc answered him
with the words of an ancient judge, and author
of our law (that is, out of Bractoo) That the
king was sub Deo et I^ge. And FIcta, ano-
ther of our ancieut authors in our science,
useth words tc» the same effect. This doctrine
differs from some of our late mottos in the Ser-
jeant's rings.
Tacitus in his Annals, gires this excellent
commendation ot'two of the best of the Roman
emperors, Nerva and Trajan: * Res olim in-
aociabiles miscuerunt, imperium et liber-
tatem.' And that author well observes it as
the true case and condition of a people, and a
necessary consequence : * amissa viitute pariter
acLibertate.'
This discourse of mine may seem to some to
be a digression ; but a man can never have a
juster occasion for it than now, and upon ibis
argument and suit : I make that my apology,
which I learn from king James, (bis majesty's
royal gnndfathcr) m hii disosMeiffc
Powder-TreaaoD, which pnwnitllNHi
■eawnaUe. * There is a tiaia,' mih \^
Jamci^ * when no man ought to ben dan
It hath* savs he • boen everJisUMtpsnl
rule in all wall gofomcd coMSMa-aali^
whether Christian, or Ethniekl^ TVtihi
cither their NligioB, or their ldB|,«lB
country was in any extreme haasA, mpd
conntry-man ovght then to wilbM flJAa
hia lonffue or his hand accoidiBglsynai^
KS
¥A
t\
iTi
iLc
im
r'
r'
or faculty, from aiding lo rapdlheisyvyi^ r
presa the violence, and avenge the gvkifn I ^
the authors.' F
To aujpport the power and piifilfgediir
Hooso or Coaunona, as being an cantidpK r
of the parliament ; it ia ahadCiiely asenwyi V
make it out against tbcae innovalsis, ihSlihe i
House of Cmnmona have aver bcmapirtd |
the parliament, and that tJiey werebsgkbR |
49 H. S. Or olherwiae they are Vol pii»
rious in their power and privileges, mk off
them but of* grace.
Every privilege ia by preacriptioa, ssji iht
k>rd Dier, fid. 60, d aiedL m Trewiaaaid'iCw.
which I shall have occasion to BBentMNi vrntf
large before I have done. And in ths hk
Dier, fol. 70, in the cano of Withers uA b^
■ham, it is held, that a man cannot prcscribii
an incident or appendant, nor indeed is n
power or anthonly where the principsl thq
hath not had a perpetual oontinnanea. Tbm
fore where thehejpnning of a thing is ksssi
there can be nothing belonging to it bj pt
scription.
In one of our late king^s reigns, the Uui:se
Commons in an Address of theirs, maile rv
tion of their privileges as their ancient 2B<'< •
doubted right and inheritance: but ofi««
was taken at it, and they were told, it hsd bi
better if they had saiJ their privil«ge» «(
derived from the grace and permissioD vi i
kine* and his ancestors.
Now 1 shall cleaH^' prove that these Povi
and iVivileges were mdcod tlieir ancient ris
and inheritance. Which tliey eannot be usii
that House, or the Commona by their rrp
sentat'ive, have been ever from tW bc^nn
of the government a part and member of <
parliament. I sba^l pnive it out of seveAl i
thentic authors of the law, historians sod an
Suaries, and by a multitude of records, ao^
ivers acts ot oariiament, w hich are sli t
sorts of proof tnat can be in a question of t
nature.
The Mirroar of the Justices, of which h
sir £. Coke says. That roost of it was wril
before the Conquest (as appears by the h
itself) Tho. Home, a learned man,sdMBi
to it in the reign of £. 1, in this Mirronrrfl
Justices, c. 1, s. 3, it is said, that king ili
onlained for a perpetual usage, That Mi
the year or oflener, if need be, the piiiiiWi
should assemble. And to let yon aeasf vbj
that parliament did consist, he letts « it ■
same chapter by whom the laws WSR ih
made. It is (saya he) among other t
fir pMuhlng DAngerfieUPt Nttrraiive. A. D. ' 169.1.
[1594
Ttwt no kiD^shouklcbtnge hit money,
y^ iOBpiir it, nor inhaoce it, nor make tmy
y°yy kot of wber, witliout the assent of the
4;m« a^id « all the Commons.'
^J^ ^^. C. in his Preface to the Oth Rep. tells
?*■ ^i^M tenants in ancient dcmeMi, becanse
SJ fnw\ ia- tenure they were boond to plow and
id llie king's demesnes, before the Con •
*^ g Aad in the Conqueror's time, had difcrs
^alvBsvi^ wbicb they claimed by prescri|Kitvn ;
lOff others. Not to contribute to the
ftne knights of the shire,
the pnrilege must be as ancient as
tenure and service, for their urivilege
_^^* ^y reason of their senrice, and their ser-
[J^^M Jknown by all to be before the Conquest,
^^*M» tine of Edward the Confessor, and in
TJ^^ioie of the Conqueror. And it is cxi»re8sly
3y Py this learned and reverend jud^, That
S^^*^ tCMots, in ancient demesne, claimed this
t ^^^.^^cwription; and it couM not be so, if the
of the knights of the shire had bc^un
im memory of man, or of any record,
^♦^■^tforo it clearly follows, that koi{rhts of the
^ ^^.S*"** ^ ^^^ in )*arliaroent, and the paying
i. - ^^gss'totfaem for their service, has been time
^ . vf*^ °>"^* "^ ^<^ '^^ ^n 4^ H- ^> ^or that
^ ""^^ withia time of memory in a legal
^_11iO aame argument is usedl>y a learned
^ ^^<aMfor and antiquary Hr. Lamhard, in his
^^ iuBBiOa, or Commentary upon the Courts of
^^^Jfaisticoyiol. 57, and 439, and S45, where he
ns that the narKomeat was used in the
time, and then consisted of the king,
I and Commons, as in the time of king
mnno 719. Ho does affirm. That bur-
BB were chosen to the parliament before
I Gonqneat, tbl. 8S7, S58, 965.
I'a Tenures, sect. 164, says. That
towns called burroup^hs, be the
nt towns tint are in England, for
lb* toiHis that now are cities or counties, in
old time were burroughs, and called burronghs,
. §fif lliat of such old towns came the burgesses
..-to thoMliament.
.fir £. C.in his Comment upon this text of
1 Inst. 110, says it is called Pariia-
J because every member of that court
Forkr U mtnt. Many pretenders to
§^, take upon tbem to censure sir E. C.
I and some other like etymologies, as
J ridiculous.
J«eC me do right to that learned in the law,
^.. aiii^ (which is mure) lionest and worthy chief
a iiMliee, who lives in his useful works, and in
„ ilhni-0reat blessing from God) a numerous and
- « Ikarishingi posterity. It is true, tnentum is an
n^^.wiioary termination of divers wonis of the
- V^iMOtor gender, and so it is (if we will be strict)
k via. tin word f^rliamenium. But give ine
. lOMTA to say, if it be ridiculous, lie is not the
eiMr the greatest that hath lieen guilty in
kind ; nor is it any proof of illiteratfuess,
BiT 4o be charged only u|)on the urofu'ssiou of
tbe common law, as if it were an absurdity pe-
rils. For the antiquity of the like etvrao-
]mj, k ia of above » thousand years slaodiug ;
you XIII.
and for the authority of it, it is tube met with
in the imi»erial laws of Jusiinian the Roman
emperor, and the laft of the iioman «*uipt:i-on.
Even in the very text <it' the civil law, it
makes the etymology of Testaaicnlom ^ * Ex
*• eo npiiellatur* says the text, * quod testatiii
* mentis est.* * Alliisione quadam etymolo^
* g-ica ostendit rri ct vocis coitvenicintiam,' says
Vinius in liis comment fol. 970. ^ Nomen ab
' offick> convenienter habet.* And Yiiiius says
further, * Dstque hi\juMnodi alliisiva dmvandi
* ratio, omnibus auctoribna ad mod u in faniiliarifl.
* In jocis Venustas delcctat; qualis est ilia
* Ciceronis, Fiiles, quia fiat quod dictum est.'
And sir E. C, it may be. was prompted to
this etymon from that ancient author, the
Mirrour of Just, who, in the place I before
cited, c. 1, sect. 3, though he did not expressly
mention the word parliament, yet speaking of
it under anothdlr name, he tells us what their
property is, viz. ^ A parler la menL'
Thus much by way of digression, for the
vindication of that houour of our profssaiou,
sir £. C. to whom not only his own, but all
posterity are highly obliged, esiiecially our
profession.
The Register of Writs, fol. fi61. ' duoil ho-
*■ miues de antiqno Dominico non coutribuatit
' expensis Militum ad Parliamentum veoientl-
* urn.* This is the title of the writ.
The writ itself runs thus, viz. : *■ Monstrare-
* runt Nobis* says the king * Homines et Te-
* nentes de Manerio de 8. quod t^nim de anti-
* quo Dominico Ctironv Aiigiiie, iit dicitur,
* quod licet ipsi et enruin Anteccssoi-esTenentes
* de eodein Manerio u tempore quo non extat
* memoria, semiier hactenus quieti esse con-
' suevenint de expensis i^lilituni ad Tarlia^
* meota Nostra, vcl Frogenitorum Nostrornm
' Kegum Anglite, pro Couimunitate dicti Comi-
' tatus, venieutium, 5cc.'
M. 11 H. 4, Fitzh. avowry, Placito,. 52,
(which is said ti» be the first case in our Year
Books, concerning wages to knights of the
shire) in a replevin the detcndunt avows as
undersheritT, by virtue o^ k Jieri facias^ to levy
the wages ot the knights of the shire ; and he
took his di^tresH in a town called Wotton. Tre-
main, for the i»laintiif, pleads in bar to the
avowry, that \V. temps d'ont. ^c. never paid
to the wages of the knights of the shire ; and
so issue is joined upon that prcsi-i iptiun.
M. 14 *U. 8, fol. 3, iu ihe Year Book, by
Fineux Ch. J. The parliament, says he, con-
sists of tlie king, tlie lords and the Commons,
and they are by the common law one body
corporate. Now, that they caiuiot be at the
common law, but by prescription.
I shall now proceed to prove it by several
records of parliament, that the Comitions have
evrrbecu a part of the parliament, ascunstitiifod
at lliis day, «f knijrhtK, citizens and bnr^e^se*.
■ Ex Ubtulo^ l*nrtianienli, anno 51 E. ii^
Alembr. 5, num. 4 J. Mr. Pryu's 4ili |»arl of a
R^'ffister of Parliamentary Uril**, Ibl. yi;>, in
sir Itob. Cotl. Ahr. it is ti>o shuit ; bat at large
in Mr. Pryn, u before cited.
4U
7 WILLIAM UL Proceedingi agaimt Sir /Km, miUamt, [ISK
15952
ThtTP ts )i Petition of the Commona to the
kiEKf in Frpoeii.
It PTii^ For tliat of Cotnmon Rigbl (w^liich is
the «ame wkli the Common Law, in the lao-
giiage of tire acts of imrlmmeiat) of the realm.
Of every (^Cluut^ of EngkiKl there were and are
eho«en two persom to be at the parhamcnl, for
the commi»f)9 of the counties, b«««tlf s ihe pre-
lates, (tul&es^ earls aod barons, and &Lich as hold
hy barony i and besides cities and burroughs,
who oug^ht to chuse of themselTes such a*
are to Answer for ibom^ And such as are
choar'H tor the counties oujrbt to have their
aecustomed wag-ts, and to have writa to the
iheriiftf to levy them.
They ^>ra y that it Ite ordained I his ftreseni
parliameot, thai the n ages be kvied of sit lUe
corattioiis of the t^ountles, ajs welt within fran-
ohist^s as uitboui^ excepting wiihin cities and
burouf^hf, aoti excepiing- of ibo^e that are sum-
mooed Uy writ (uieaniog the barons) and their
lennnts^
Rfsj^. Soit fait come derant ad este use ea
eest Vnse-
This was in the tinae of E. 3« who was but
the fourth king in succcst^ion from that H. 3,
10 whoee reign oar new authors would have
our knights, cidzens and burjf esses to hate their
originaL
And the king's Answer to the Petition of the
Commons admits the dt alter of the Petition to
be true, and refers to uatage in former times.
Ja the same fourth part of Mr. Pryu^a re^»-
ter, foL 64a, 5 H. 4, rot par), num. ft, and 7B.
On the be hah' of Rich. CUedder, e^q. menial
■ertant to Tho, Brook, knight for iSouai'Tstd*
shire» The Commons petitioned, That whereas,
* After the custom of the realm, all the lords,
knights, citizens end burgesses, with their
terranls coming to pnrHament, by the king^s
writ^ in coming, going and returning, are
under your royal protection,* Slc* And this
Petition was answered by the act in print.
We may note from hence, that tlieir privi-
Jege, and therefore much more their being a
part of the high court of parliameat, it wa$ by
cuatom of the realm.
I would note Curther (since 1 shall hare oc-
casion to use it for another very material point)
tiiBt this custom (though the then pretsfut oc^
caiiou for the mention of jt, was frorn ike
aertanl of a member of the Commons House ;)
y*t it is sliedged ait one entire custoni for the
whole parUanicnt, vis;, all the lords, knights,
eiti^ena and burgesses. They are all but one
body, one court ; nnd iheir rights and privileges
are entire, and nut some for I he Lords, and
other tor tht^ Commons ; but it is a joint prtvi-
k-dge.
From lienee it follows, you esnnot invade
the priviUge of the one H<jusej but yoti tnrade
boib
Eltiiig, io I'm Treatise of PaHiametits, lot.
115. It is also in air Rob. CdU. Abr. foL 453,
tiut uot so full,
to ibe time of the satilc klDgi 5 H» 4^ niim,
74.
The Oimmony pr^y, That whifvas aeeiti-
iu^ to the cik^tom of the realm ^ the \m^
knights, citizens and ^urg«'»es, cemiBf la ^*
ti anient, ought not for anj tklifltri £e. t« Is
arrested,
it ill said to be the cuttom of tht wlwfc
realm (that is, the same with tiie common law)
and it is made to be one entire (rustoma, bih
for the Lords and CommoniE ; ^id lys is im
freedom of debater, and iml tha
last that I cited, thotigh in the s
39 H. 6trot, par*, num. 9, on ih#' titlndf of
Wr, Clerk, burg, of Chippertbam in Wiltiliifc.
And ir E» 4, rot. pad. num. SO* oq lk4ti>
half of J. at WdL cit, lor Exeter. •
In both these cases (tbougti apofi
of two prtieular members) yet the wltb
House of Commons petitioned.
And the petition on the bettalf of Wr, Clid(,
runs thus ; * That, whereaf time tjiat «i»^
mind is not to the cot)lrary, it hath bei
&c, and then sets forth their pri^lege.
The petition of the Comniont on lite bektf
of J. at Will* h in these words, ¥i«, • Tbefif*-
dom of which Commons bath erer aftM^ 1km
time been, and oweth to b«, that the kaigtotf
the shire, citizens of the cities^ and baroii^ oftk
ciui|ne ports, called to any of tbe part»«tSM^
of your noble progenitors (afnoiig i '
ti^ and fraucbise^s) bave had aSd
lege, that any of them eboold not ha
by their persona or gocHls in their
any such parltameott their abiiltng, not
ing to their pmjjer homes,' &c.
Their freedom hail * ever* b<^n ; theti it M
not begin firsts nor had ifaey themaelfei thor
beginning in 49 H. 3.
And *► owcth to be :* theti it wa« not of n»«t
grace^ 9iixd by permission, bctt of right itou^i
8o to be.
And two acts of parliament passed upoDtb«t
two petitions, which confirm the tmtb of tbow
suggestions.
And another thing I would obserre, wbi£l
do^ naturally and easily flow from these re-
cords, and Ls very useful to us, tlz. That Ik
Commons petitioning to have thesse friL^doBa
allowed them, does nothing derogate from tbcir
right to those hbertics and francuises, norbia
argument to prove them to be mere ematatHMi
of myal favour^ for the humble way ofal*
dress, by the Communs to the kiu^ to have
their rigrits maintained, i« made o^ of by &m
noveUsts, to prove they were granted fta©
time ly time, merely by the k.in^'s gi^oe,
I am far from condenmiug this bumble ^nj
of subjects addre^ing to their foiereiga: il
becomes the duty of subjc^cts, and is doe ia tlv
majesty of a kmg, to have all decent rerereaes
shewn ; bnt 1 w ould not have ill u^ uiada if *
their humility, to deprive Ih em uf ibeir nglli.
It was (as 1 take it) the observation of C-cMP^
in his commentary f of the tem|ier al the sli'
fjritatus^ ' Jam duniiti ut parcatit, ooo tn a^'
viant.^
la thut faitious case of Thomas Th^pt ^
%eakGr of the Coiumon^j Zl U«ti. <^, uunt*^
J
1397] fwrpubHtUng Dangerfiel^t Narrative. A. D. 1695.
[1398
there are the Very words of the Petition, at
Jarge set forth, in the fourth rejg^. of Mr. Pryn,
Ibl. 644. Thorp was taken in execution, at
the suit of the dulce of York. The whole House
of Cammons petitioned to have their Speaker
restored to theoi : and their petition is in these
wwds : ' By oommon custom, time out of me-
mory of man, and ever afore these times used,
in every of the parliaments of the kind's .noble
progemtors,' &c. And so it proceeds to de-
clare the privilege of the Commons.
I would observe also,' out of these three last
■ooords of parliament; that when any breach
of privilege befel but a single member of that
House, as-that of Walter Cierk, and J. at Will.
the whole House thought itself concerned,
and the whole House petitioned ; especially in
this last case of Thomas Thorp, their Speaker,
to whom the dl of York was no friend. This
will be useful to my second point.
Hitherto I have presented you with records
of parliament, as being the most proper proof
of the riffhts of parliament, much beyond the
reports of our historians, from whom our inno-
▼ators fietch most of their arguments. I shall
now ofleryoa some records out of an inferior
court, one of the four courts of Wcstminster-
hnll, that is, out of the Exchequer: but they
■re judicial records, adjudged oy the whole
eourt, by advice, with ail the judges of both
benches, to confirm the same point.
M. IS £. 4, and H. 13 £. 4, in the office of
the pleas in the Exchequer, mentioned by Mr.
Pkyn, in his fourth part of his Register of Par*
i Writs, fol. 752.
Id a plea of debt by Donne against Walsh
Wabh was menial servant to Henry earl of
Vmrf, and he sued out his writ of privilege,
nnd the writ under the great seal, was of this
tenure : viz. * Cum secundum consuetudineni
in regno hactenus obtentam et approbatam,
Ilemini Magnates Milites Comitatuum ac Gives
et Burgenses Civitatum et Burgorum, ad Par-
Uementa nostra venientes, ac eorum Familiares
rattone alicujus Traosgressionis' (and so pro-
needs to enumerate other sorts of actions) < dum
lie in pariiamentis nostris morentur, arrestari
lot implacitari minime debeaut,' &c.
And then the writ mentions that action of
lebt, brought against Walsh, menial servant to
the earl of Essex, in that present pariiament,
> VoIns mandamus' (says the king by that writ
of priviic^ to the barons of the Exchequer,)
; «.iA«i m{ iin ggt,» Those words do not refer to
the custom set Ibrth, nor to the law u|ion it,
bat to the allegatioB in the writ of matter of
het ; vis. That Walsh the defendant was me-
niel servant to the earl of Essex.
And then the defendant does by way of plea,
Eounded upon that writ, apply the writ to
mself; and avers, that he is the same person
mentioned in the writ ; and avers, th;it he was
the menial servant to the earl of Essex, and
dien demands alk>wance of his privilege.
The plaintiff in that suit traverses the custom
nd privilege alledged in the writ (as to the
\ m^mM) bat admits it as to the free-
dom from arrest. This traverse is in the na-
ture of a demurrer; for it is < Quxstio Juris,
ad qnam respondent dudices non Juratores.'
* Et super hoc viso et prslecto brevi pne-
dicto, per Barones, &c. Habitoque avisamento
Justiciariorum Domini Ilegis, deutro<|oe Ban-
co in hac parte. Quia videtur prcefatis Bare-
nibus de avisamento Justiciariorum pnedicte-
rum, quod talis habetur et habebatur consuetude,
quod Magnates et Milites Comitatuum, ac
Gives et Bursrenses Civitatum et Burgorum ad
Parliamentum de Sumonitione Itegis venientes,
ac eorum Familiares Ratione alicujus Trans-
gressionis, dec. dum sic in Parliamento moren-
tur, capi aut arrestari non debent.' (But then
they adjudge that the privilege does hold only
against arr(*sting their |)ersons, but not against
the suing them.)
This strongly proves the point I have in
hand, That the House of Commons have
their privileges by custom, and therefore the
House itself could not have its original within
time of memory, as 49 H. 3 is, in a legal un-
dei-standing.
It is very useful further to observe. That the
single and sole occasion of *his record was
from the privilege of the peers, from the suing
a menial servant of a peer. No man denies
but the peers have ever been a part of the par-
liament : nay, our new modellers of the go-
vernment would have the parliament to consist
only of the king and lords.
And yet it is said to be a Joint Custom for the
Commons, as well as for the Lords, by express
and particular words. Why did they not lay
the custom for the privilege of the Lords only,
that might have served for that present occa-
sion, wliich was about the privilege for a
menial servant of the then earl of Essex ?
But the custom was an entire custom for
both Houses : this proves them to be cooeta-
neous, and twins by hhth and original.
All this is by the judgment of all the twelve
judges, in a judicial proceeding : and it takes
in the opinion of the chancellor, who issued
out that writ.
The other record of the same court is en-
tered H. 19 E. 4, rot. 7, i inter Ityner et Cou-
sin, keeper of the wardrobe to the king, in an
action of debt too ; and there the defendanc
claims his privilege, not as servant to the king,
but as servant to Thomas St. Legcr, knight of
the shire for Surrey.
And the writ of privilege sets forth the same
entire custom, both for Lonis and Commons
(though the occasion was here from the Com-
mons only) and the couit of Exchequer gives
the like judgment, as in the former case, by ad-
vice too, of all the judges of botli benches.
The next record I sluiU make use of, shall be
that of £. 2, which is n most invincible proof
that the knights, citizens aiitl burgesses have
originally > and before 49 U. 3, constituted the
House of Commons, and have ever been a part
of the parliament.
The burgesses of St. Albans, in their petition
to the kiDg> aayi That they * siciit cceteri Buir-
1399]
7 WILLIAM IIL Fr&c^€di$ig^ agninsi Sir IVm, WWi^ms, [IWO
St tiACB RegtQi m\ Par Ji anient uro Uegii, per
itos Cowibivr^tii*^ nms venire dv-UemU prout
nirOHBetiJi tempcyribiji Teoiro coosueferaol,
tMin Dpnatw^re Domini Eilwanli, ntiper Regis
JU^iw, Fwim tU^h' (which uiuil b« E. 1,)
* tt prti^'Xiiltiiuin (iMonim* (wKich mint he ud-
4e!r«tiK^d ofibe (ir^tg^-oitars m xhe plural Dumber
itif R* 1» fVir he tnetuicms t!ie then kin g- E. %
afU-fwjirtli) s/o that of nece»aiiy it must tak<? im
kiui; lUn, 3, and his falfaer king Joha, at the
Aod ihi% (!flm[>utalion much exe^fHlii *he dati*
gu't^n to tb« UtniN; otXomiutiaa by these new
iUAhnrtt, rise. ^9 H. 3.
Aa4 then the Petition deseetid^ to the men-
tion ol llii^ liien king- St imtf yi^. E. ^. ^ tem-
* Murv l>atni[)i Rtrgifi (}ui nunc eili sent per ante
•^ buit^iiM iiarlknientUEii/ Ami the PetJiiuti com-
pkjtw vf thti a hen If of Hertfordshire, who by
thc> ahbut'fi prm tiriiig, refusefl to iitiowiou ihat
Tb« mmm€^ by the counsel is, ^ Hcruteotur
* B/Mik^sC' ^^ Caocethiria, ai tewporihun i»ro-
* fimitofum reg;t» hargeuse« pncdiuti aol^liatit
Thiif nniwer adnnU the general naage of bur^
l^tliii io he cbo»eD tot^ divers horougbK, in the
lime* of the kin^^'s protrf^mtorH j for it k absurd
to Uunk, lb at that neeiled any 9i;are]i of the
Rfilla ill ChaAC4;ryf hut ihe search was to be
only I It betht^r that partieulAi' boruu^h of St.
AilMuv wm one of those ancient borough!} that
liad itacf} that jiri^ili^Q^e, and had a ri^ht to it,
^hioh wouhl appear By the Rolls, and returns
of ^^rits of $nuinion>j.
Thi; record la v^ tbo usai^e for Ihe borough lo
have lieeij * &i-(np4. r, ante iustaiii^ p&i liaiucutuii] |'
so Ihat Ihf* uvage haij beru fi om ever.
lu the i^olls of Pmlmment 1 1 tL 4^ nnm, 5%
cited by iMi'. Prv it, in his Uievia Parlia^iitetila-
ria UediviVEit loL kU5, th^re \s n PtsULioii of ihe
Commons in French, rediing iti** stttt, of 7 H.
4y c. \^^ which iitiitutc (as the Ptrtitton i^y«)
witg matli^ ft>r the [rr^^eniii;^ the fiun chides and
libt-rlics of ihn eki'timi of kni^hls uf the i»hire,
Uit^ ttiroui^Uoul the whole r«^a|iB, ami by the
kit);^'^ }»rogeiiitOL!i IVuqi purlin rn en t lo pitrJia*
lilPIll^ tiiite out uf flllDil iJ^beiTCiJ.
j ^vill iHiw |i!il tiiiM.ourt in inlod of faiimeacts
of jKirliLimeii*, thitt fiiJlv prove tJvi<j point,
riio statute' of :> U. 3, |iarL 2^ c, 4. (in a
lltTie II hi£|] p;\Lli:iuii'iits v^erc mit sn much
toriim; m mt Heor; Sfidimtjaf Bnk'i teL
Hist. Ekor fainoufi l^ld«ii» oor kurfkeri CAftik%
nrhd hy general words, used 10 1^ Ipsub Ism^
fb« the aivemhhng of pBrlJaoieiiUf ibm^ Wk
bjr thai oatne^ urofe the CottnMxw l» Ics |hi
of ihe» ; b«ii tjiey (h» not profte iIm Cmhomi
lo b« io elected, an4 to conmt ftf koiflila, do-
-i£tn)», and burgrises, a>s i^ clearij prura b^ tki
reciitds I have iilreatlj offereiL
The pari in meat tti tLie Sajiiici ltw*« "is
lifted, * CuftiKniiiie coticllianif taai c)cri ^ma
' popuh.^ And the Uvra were iiiHi«i * pr caa*
^ mo&e ooQcilium^ el atsensDna onmnimt^
* copor^ el priudpum proc^mm cmamm, d
* omttium aapirntuni aemor' ct popukir^ \aam
^ f«!gni «t pfipuli {^mTentua.* Ki»f E4«9ti
the Coofesftor coufirixia] tbe Saspsd Ie»i, iai
made oe^^ says LAmberl 10 hts book OcftWi
Atij^lor. LegibuK, c. By fol. 139, oa4 llMiiiia
said, aU to he done * k rege, JsoraaHHM oi fspf^
' lo.' Thase ^enenil words csMlttOl Iv Mr*
stood otherwise, tljaii to icujftil« th«
And ao « tf?!ius fegiii asaensnota
* pulatione «t ^wHciu,' os^ ttlr. SaUti^ i
judgment wa?i i^iren ccMicemiiig Lunfraaki a^
biahop of Caoierbury . The ^tolule vi MjfM
CharU ^sji maile tmd confirofed $} H, :i, wiiii
was tbriy jirsLV% bdone this new lUtr 0^ Ikn «k
ginal of tlie House of Commviis, v tz. 49 ILI^
And rl ap{M>iir« by sieT«r«l sistiatss^ that
Ctiarta was made » D©'
fMiya ttnc ti^atiite: ' Per
^ fe realij^* ^y« auAlher* ' Per le lCiiy«
* et ConimuiiLJi de le ierr«,^ 9Ay» ftiiother
h is worth the uhik to exauune the
of their upituon, and it will appe&r host wcil
they are.
These new authors dfiirin, that the Hotfi
of Cotntnons began to be admit ted ss a part of
the parhanient, not till 49 H. 3. Their tmm.
\%, beean&e (use Mr. Pryn say;*, in hia Pies ki
the Lords foL ]BSi and in hiK pretaee to fir Ma*
bert CoLt. Abr.) the first writ of summoM d
any ktiigbt<i, citixeOK, atid hnrgeises now e<"
tani is no ancienler than 49 H. 5, dorvo 10 ud
11. And frciin thence he <!Ondud«^ thatilii
I note t nppment, that the Comtnons had oio ^me^
nor voui by election in partiamrnt, li^fivrf lit
end of Ihe reifrn of U. 3p and su" R^jherl FiIokt
is in hkt? HID oner poiitire in it m hk bouk^ c^l«^
The Fi^ee holders Gr^nd Inqiiesti lot. IS, n»ii
: they both cite ^tr. Heldeti ajid CanMkn tail
vitlucil) * it i^ tiitTi'by rmiicted^ hy Rj^srcvt of the other beamed atithors, and Mr, Diigdale is b«
Pnlnin;* I^onlN^ uji.l CNuiipmoiis, iLuit all per-
* sons and comtn^riulUt^; x^hlch Uiniihl h;tvi^ a
* PiUiniHnim to parUntuPol, should coiiie fr*mi
* ihnict'li^rth to parliiirueriN in the iiumiierii^
^ I bey iveiv lK)uiidtit lii dt>, ainl h^iA hetu ac-
^ rnstojUi'd of nbl tini*'j» ; ovhtrwi^i*' thfy ^htjuhl
* \w iiuiiTf'CHl as ttf old limes Lad been uccu^i-
* Imned/
(hit. 1*51 1 1 7 If . i, \YM'^ J. num. jn, Thi^ ie
hll I Hit id m HjsIi* Coll. A III". TIml oci dct^larts,
thhjt till! ('otuiiioht- hiul (Vir liL-Aii a nien^Wmt
J>e HVA'lv without their u^j»eiit- I uill not impend
timi; iiA t^ilaig iho&e l^aiued anU(jaariea^ or liis*
Origines Juridicialea, fol. 18^ lollowa the
it. It is true i^!r. S^^blen in bia Titks of Ho-
nour, iiil 717, lowarda the end of thst h\. de^
Like notice that the lirst roll that tliey fiil
extant \% that of 49 U. 3, lor ibesumnroaiagil
the Com moo?* by *sy of election \ but he ijoa
not llienee conclude^ (as thc*«e new duLb{ir»i^}
that Ibis WAS the tirat dttre that the ComiooBa
cu^nic tn the parhament by eteetioo.
liut in other |dacei nt his U-arned bosk| bi
dncii silriinifi j iiitintaie hii opinion to be tbtttiii
CaiLuni)im did vpry jincimily and long bt-fe**
40 W.^t ntuke att oiiseritial part ol^ th<^ psritf-
tn^ni^ and wvie KuaifDiiiied lail| butui vi^
I] Jirr puhUthittg jbangerfieliPt Narraiive. A. D. 169iS>'
[1408
they were siiiDfiiooed, and when they fint
i to be dMtiniiraithed from the Barooes
iffee^ Sekksn himself aeems much unre-
d.
sriicd Camden doei indeed date the ori^-
if the Commons as a part of the |>arlia-
t, and as now elected, from 49 H. 3, fbl.
f his Britannia, in the edit, at Lond. An.
*. But let us take notice open what an-
ty he does it. He says he has it * ex satis
iqno seriptore,' but he names not his au-
r. Sdden fol. ^13, says, he could never
with that author, and professes he gives
credit to that relation, out acknowl^ges
had been a great change in the constitu-
>f the parliament, but supposes it lon^ be-
19 H. 3, viz. in the time of that king's
r (king John) and that it was done by a
though the law be lost, as many rolls of
laient were, wherein those laws were
ed.
d the dis^netion of ' Barones Majores et
rea' he supposes was made by act of par-
mt, about the time when the great cluirter
i|^ Juhn was made at Runny mead, viz. 17
DBis. By which Charter^ some of the
nes Majores were severally to be sum-
id to parliament by special writs. And all
toumtsifi €apUe, or tenants by knights
ye were to be summoned by a general sum-
I directed to the sheriff of every county,
r this conjecture, it should seem that the
: of parliament before consisted but of one
e or assembly. And it is g[enerally held,
at the first, from the beginning of the
I of William the first, till that charter of
John, all tenants in capite had a right to
1 pariiament. For says Mr. Selden fol.
medio foKi. Tenere de rege in capite,
to bo a baron, and to have a right to sit in
■eb or courts of judgment, are synoni-
That great charter of king John, rays
m, was made by the king and his barons,
litieros homines totius regrni,' and that it
m 1km, made the distinction.
It Mr. Selden does by no means leave it
. 3, or his son E. 1, or to any other king
ly time, to send his special writ of sum-
i to such of the barons only, * quibos ipse
dignatus est brevia sumfiioniiionis diri-
e;' as Mr. Camden's nameless author
ht him, and from Mr. Camden, Mr. Pryn,
tobert Pilmer, and Mr. Dugdale take it
md so propagate that error. 8o that this
fkocy ts wholly groundetl upon the credit
bat onrertain writer, whom Mr. Selden
J never meet with, and to whom he ^ve
redit. The argument upon this subject,
OS fol. 701, in Mr. Seldcn's Tit. of Honour,
is continued to fol. 718. Mow the argu-
t taken from the rolls of summons, which
lot extant before the time of 49 U . 3, is of
reiglit. For by the same arpfumeiit it
It w proved, that there was no jmriiament
I the time of 49 H. 3, till S3 K. 1, lor there
» roil nor no other testimony left of a sum-
mens for any knigfals, dtizaiis and burgesses,
from 49 H. 3,tiUS3£. 1. And yet we know
there were no less than fourteen parliaments
between those times.
They may as well argue, that there were no
acts of parfiament, nor no parliament till 9 H.
3, when Magna Charta was made, because
there are no rolls of them till that time^
Whereas it is beyond all dispute, that there
were parliaments and acts of parliament long
before, as 4 Will. 1, when the bishops were
brought in to hold by barony! (as Mr. Selden
conceives) and some in H. 1, and others yet
extant in history, yet the rolls of them are lost.
This is obser?e<l by the lord chief justice
Vaughan, in his Rep. fol. 368, in the case of
Thomas and Sorrel.
In the next place, these late authors proceed
further in their error, and maintain that the
Commons had no further power in pariiament,
than what the king and the Lords admitted
them unto.
And sir Robert Filmer, fol. 40, allows nei-
ther Lords nor Commons any power but by
the king's Imre permission, and thus they are
growing in their invasions against the court of
parhament, and impeach one first, and the other
will follow more easily.
And sir Robert Filmer farther holds, the le-
ipslatire power rests solely in the king, and
tol. 39, he hath these words, « But the truUi b/
saith he, * the liberties and privileges of both
* Houses, hare but one and the self- same found-
' ation, which is nothing else but the mere and
* sole grace of kings.'
And doctor Heylin, in his Life of archbishop
Laud, fol. 91, denies the privileges of parlia-
ment to be the peoples' birth-right, but liokltf
them not otherwise exercised, than by the grace
and goodness of the king.
Mr. Pryn, sir Robert' Filmer, and Mr. Dug-
dale, lay great stress upon the diversity that is
in the writs of summons, between the summona
for the Lords, and the summons for the Com-
mons.
That to the I^rds, say they, is, ' super ne-
' ^tiis pradictis tractaturi vestrumqiie consi-
< hum impensiiri.' But that to the Commons,
is, say they, only * ad fiiciendum et consenti-
' endiiin his qiite tunc ibidem de communi con-
' silio dicti regni contigerint ordioari.'
It is true, that for many years of late, that
distinction hath been so used in the summons,
but not constantly so.
As to this point, I will cite Mr. Dugdale's,
and Mr. Pryu*s own books against their own
opinion.
The very first writ of summons, which as
they say is now extant, for the summoning of
the Commons by election, viz. 49 H. 3, runs
in these words, *• NobiM:um ac cum prwdictis
* prsHatiti et magnatibus nostris super pramissis
* tractaturi atque consilium impensuri.' Dugd.
Orig. Jur. p. 18.
The writ, * l>e expeusis Militum qui vene-
< runt ad Pailiamentum venieuiibus,' says that
writ, * usque ad Weatmonasterium ibidem de
1403]
7 WILLIAM III.
* diversis negociis nobigcum tracUturis.' See
Mr. Pryn's 4th part of a Register of Parlia-
roent Writs, fol. 8.
In Mr. Ryley*s Piacita Parliamentaria, it
appears, that as the summons to the temporal
Lords, fol. 318, wqs ' ad tractandaro,* and so
likewise the sammoos to the prelates, fol. 319,
so also, fol. 330, it is entered in these words,
* Mandatum fuit singulis Vice-oomitibus per
* Angliam quod de quolibet comitatu duos mi-
' lites, et de qualibet civitate duos cives, et de
* quolibet burgo duos Burgenses eligi et ad dic-
* turn Parliamentum venire facerent ad tract-
* andnm,' &c.
In the same book, fol. 570, an. 15 E. 9^ there
is mention of a writ of summons, for knights
out of Wales, to a parliament at York, * ad
* tractandum et consilium imneuUendum.'
In Mr. Pryn's Ure?ia Parliamentaria Redi-
Tira, fol. 274, there is the very indenture re-
turned by the sheriff* of Norfolk for Great Yar-
mouth, < ad tractandum, cousulendum et con-
* ientiendum.' 31 £. 3.
And fol. 68, of that book, another writ, ' de
, ' expensis militum,' 18 E. 2, reciting the cause
for which they had been summoned to the par-
liament, viz. ' ad tractandum,' &c.
And in the same l>ook, fol. 145, it appears,
that 18 £. 3, the writs to the sheriff's for chus-
ing knights, mentioned what their work was to
be, in these words, viz. ' Nobiscum, cum pnc-
* latis et proceribus preedictis super diversis et
* arduis negotiis nos et statum regni noetri spe-
* cialiter tangentibus tractaturi et suum consi-
* Hum impensuri.'
And fol. 1 i7 and 119, the like words in the
writs.
And fol. 177, the indenture rclurned by tiie
sheriff* of Wiltshire, recites their triibt in the
same words, and pursues the words of the writ.
And 276, and 2'C^'3y and 381, indentures tv-
turncd from Keadingf, Bristol, I-K)Ddoii, with
the same words. And ih. fol. 178 and 170, and
20 1 for Windsor, and i>63. So that in the reigns
of seven several king's, and those of the most
ancient kin^rs, there was no such distinction in
the writs oi'sununons.
Another arj^anutntused by these late authors,
to pro^c tiiat the whole power and all the pri-
vileg^es of the House of ('onunon<(, are n(>t
from the ori^nnal constitution of the govern-
ment, (nH I atiiru], and I hope have pro>ed
they are) hut of a hitor orij^inal, and hy the
mere <(race and indul^jenco ol' princes (as in-
deed the> must he, if the Ili)Use of Commons
be«;an within memory) is taken ihuu the words
and phrases of our historians, who have writ-
ten since tin? cominj; in of the Normans, and
ascribe the niakintf of laws, and ail the detir-
iiiinations and decrees in malters of judicature,
and all the actings of the ancient paviiaiuetits
before the time of tlie Normans, to the kin^
anil Lords only, exclusive to the Coninionti,
and that tlie Commons had no part in them, till
this time of 49 H. 3.
And they OToood this oniiioB jummi the Ibrra
of penniog of oar aafl A
Proceedings against Sir Wm. Willians^ [1(U
which seem by the words of them Is be
concessions ot our former kiofr*, tnd to
to km
proceeded only from their royal bounty, uis
tbeir sole will and pleasure.
And they confirm themselrei in thit «(i>
nion, from observing the coarse used is the b^
ginning of parliaments, when lbs tftAa
makes his humUe petitions to the kio; fit the k
granting of them freedom from snati,d k
freedom of speech.
Now to discover the falsity of these gnu^
and the weakness of these argumeats, tabi
from the words and phrases used by oar bill-
ri<ins, I shall shew that our historians, wb
have written since the time of the cooiis(|;iiif
the Normans, and have translated the 8m
annals, hare in those translations, umeid li
the Saxon titles, used the titles that weieimr
in use before their own times, which titles wi
in the Saxons' times had quite difierentint-
fications from the titles used in the limes t/tfat
translators.
The title < earl,' for example, is used is tli
penning of the Saxon laws (as among thoKif
Atbelstan) as we may see by Air. liinbertii
his book De Priscis Anglor. Legibns,sBdtk
title * comes,' came in araoiUBrst ns since hm
the empire; and signified a difiemittbiqfii«i
earl. Now our translators mistaking tboietfi
titles, * earl' and ' comes,' to signify the m
thing, wherever they met with ean in then*
nals of the Saxons, they have rendereditciM
in tbeir translations : and whaterer in ihM
times was done by earls, and whstefer po*«
the earls then used, is hy our translators »•
crilK?d to our comites, who are tlieivlorcilo
called earls, when in truth thev hatl iltierrti
sii^ni fications, and wereditfcreniin ilieir|H'»cn.
Mr. Schlen takes notice of this eiTor in «
Norman or English translators j»roct^
Irom their ijjnorance. I^ut from ilii* tfr-r
false conclusions have hceu raised, aud \^*
measures taken in our discourses, cou^r-a,;
the power of the peers.
Sir II. S|>elman observes the same imiriii
our translators, in rendering; wonls and t""<*i
* \on e moreSteculianli»iuiori.>,' biitai-CinJ-i*?
to the titles used in their own times, wliiuiniBy
times they signified difiercut ihiiiijs. Aiv"«*«
says Mr. Selden, in the Saxoui' times, diao^^
every gentleman.
Now because nobiiist in our times, is^ae^
ly restrained to peers, whom \se call tlienni*-
lity, our new writers, ns Mr. Pr\n,aiuliirn»'
iKTt Filmer, and several others," asciibt iil «*
the carls an<l harous and other pt't TM't «*
times, which they read in the traiiJiJi'** ■
the Saxtui annals, tt> he acte<l by th"seili*t*|«
(•ailed nubiUs in tho«»^ annals. Ahliyugh ■
truth in those Suxou times, they wireartrfj
the middle sort of persons, as well asI'VthW
of the highest sort of ditrnity under the li*
Those translators miNlc.! »»ur new iutliOB>g
the Norman writers translate the »oni !■■•
into Imrones, and these new autbori rf •^
whatever they find in these translsliioi It •
Klatfedof the'barones, they limit itai »i*
JorpMuhing DangerfUlfPs Narrative. A. D. 1695. [1406
prores from the titles of acts of parliament,
and the forms of those acts heingf> b^ way of
charter and grant from our kings m ancient
times, as that of Magna Cliarta, « Dominus
< Rex Concessit ;' and the stat. * de donis coo-
* ditionalibus, dominus Rez statnit,' sure he
was no lawyer that used this argument, and be
nererread the Prince's case.
Nor sir E. Coke, 3 Inst, nor shal] f need to
labour in the confutation of this error, the fal-
lacy of it being so well known to e?ery man
that wears a gown. As for that stat. of Mafi^.
Char, whereby the king only seems to speak,
and all that is ordained b^ that stat. runs
in the langnasfe of the king's concessions
only ; yet we know tl>e stat. of 15 £. 3, c. 1,
which confirms it, says of it, tliat it was or-
dained by the king, lords and commons. The
stat. of 88 E. 1. c. 8, and c. 13, hath these
words, viz. ' The kin^ hath granted unto his
' people that they shali have election of their
' sheriffs every year, if they list.' One would
take this to be a most (;fracious liberty, and an
high condescension if it should be granted now
a days.
And our innovators would be apt to conclude
from the words of this act and from the pen-
ning of it, that the people once had this migh-
ty privilege merely as a boon from the king,
and by virtue of bis grant. Whereas there is
nothing more certain and clear than that the
freeholders (who are often called the people,
and are the true proprietors of the nation and
land) had originally and from the very first
constitution of the nation, the election not
only of all sheriffs, but of all other magis-
trates civil or military that had any authority
over them under the king; so that they had
a mighty freedom in the very constitution of
the nation, and this overthrows all the wild
fancies of sir Robert Filmer, and Dr. Heylin,
and some later doctors, as if all were derived
from mere grace and bounty, and many other
deductions might be made from tlie knowledge
of this.
The freeholders had originally the election
of the conservators of the peace, who are be-
com(; out of date by introducing our present
justices of peace, who have their power not by
the election of the freeholders, or are they of
their nomination (as anciently) but nominated
by the king, and have their power by special
commission under the great seal ; and how,
and by what means, and in what tempered
times tliis cnme alH)ut, and that this freedom
was gained from the freeholders of England,
you may rend in Mr. I^mbard, in his Eirenar-
cliH, fol. 16, 19, 20, 147. It was done by act
of parliament, in the beginning of L. 3,
and in his infancy, when his mother IsabeJ
rule<l all.
The freeholders originally and from all an-
tiquity did likewiK(> by writ at the county -court
8i\l«'U in pleiio Folkmote chuse the Here*
tochii ; \V hat were those i* That tiounds like a
Hur km reals only in the king, strange wonl. 1 will imitate our Norman or
iipHr IfMld hftTs h,) which be English traosiators ia the trtnsiatiuii of the
)
our present barons, and so ascribe all jn-
power antiently used in parliament to the
B on^y. And they bring those historians
anslators for a proof.
' example, the Saxon title thanes, was in
k2on times applied to all lords of mannors.
ie translators of the Saxon annals, trans-
it the title thanes, into barones, ourin-
>rs apply all that in Saxon writers is said
clone by the thanes, that is, all lords
anoors, as peculiarly belonging to the
' of the barons in our times.
Dce it is that sir E. Coke cautions us
It taking reports of law from historians :
preface to the Sd Rep. he calls it Chro-
aw.
? wonl baro was not in use in England
t Normans' times, and the root of it (as
Selden and Camden and sir U. Spelman
us) is from the Northern language barn,
I signifies the male sex, as when we put
of baron and feme ; or it sigpiifies, ' a
»!der' hence come the words, conrts baron,
nroine Baronacrii,' says Camden, Eliz.
Lond. An. ICOO, fol. 137, ' omnes quod-
i«do Regni Ordines continebantur.' It
:^hended the ^ntry as well as the
r«t persons. After this manner, Godwin
I Roman Antiquities, speaking of the
m magistrates, translates the words tri-
i CapitaUi into three High Sheriffs, but
Hbrds no argument, that what was done
ic Triumviri among the Romans, may
ore lawfully belong te the power of
sheriffs among us.
i so the words ' Procercs, Magnates,
i nates, Nobiles,' and such like, were not
writers of the Saxons' times restrained
B of the highest rank then, such as our
fend barons are now, but to all persons of
^tter sort, though not of the highest rank,
aly to Patricians, and those of the Scna-
. order, but to those also that were
estris ordinis.' Excluding none but the
Ma capita,' or * sine Nomine turba,' such
Aomansstyled^ Plebeians.' Magnates et
ceres,' are said to make the statute of
vain, but we all know that the parlia-
that made it, consisted then of king, lords,
ommons.
« great charter made 17 of king John, ap-
by the body of the charter itself to have
nade ' per He^em, barones, etliberos lio-
Bitotius Regni ; so] that it is most plain
I not made oy the king and the barons
as Mr. Selden observes in his Title of
w, fol. 709, and there he refers to the
m Rolle 17 Johannis dorso, memb. Qi.*
« H. S, apeaking of this meeting, calls
wootgiam AngliK,' and rot. clause;. 28
* Fan anica mcmbr. l^, dorso,' it is called
iMMBtmn de Runni-meade quod fuit
■^'Horinna Rcgem Jobannem et barones
groH mistake. That the
Is only in the king,
1 hftTs h,) which be
vKeiv the Daiire fref^om Uiat the people Imtl
bgr the ancient consiituUoQ of our goverDiuenl,
ooDtftry itt all the new doclrmes ol' our fate
writen, and proire IliAttlie privileges ar^d fVee*
doio< ^«^e yet eojoy are not mere em&hahothi of
royal favour, as otur oovebhts iroulU uopoae
upon iM.
8ee sir E. Coke to this parpose. 3. Inst. 174,
1 coukJ name some^rreat men, thai have
lately uaeii tfa« tame language in books pub*
Itabed * sub mafni Dominis umbri.' Bractoo,
Mrbo liv«4 in the lima of H. .HJ, ]« c* L fuL
1, affirms ' Lafps vigorem tiabct quicf^njd cle
* cofisiliu ct oottaeavo maj^luin et Itei^ub.
' commuiii spooMiie (autliaritalt teds pne-
* ndefil»)ittsielucrilirainl«iiietappfMMtiioi,"
la lh« met plactf titat bamUe and modest
wwj of iIm peottle'a aiidr^vaing to Ibetr sere-
rrign either for the making of laws fwbicli has
be»t irm aiicieoi) or lor gvanluig* ol pririlc^es
(•a Ihc Speaker ar the CttfDiiKMia baih of kie
yaan dooe) it akcwa imlted great r«f ctvnce,
and 1 do not in the laast di^ke it ; and it be*
cofnea the maifsiy of the pfiaoe to be so ad*
dtcawrf to; but Ice k aal ba oMde as arfniaeat
that etthar ttia lawa ttMnnpoe nade, or Ibe
prifik^ so albwed. are piucaiiiai, and OMta-
fy of tnvour, and may be refiiaed them*
I would be bacb Ito pay wagea and to naio*
tain aitnycduugaaerefyaiialhaiatyica km*
lalf mv bainble oerraul,
la uwt act of pirtiancaiialihited, The Phi*
tiaoaf Rig1it,thetiileoirr«oiiaod^iialifiaaii-
•iH; 3 Car. K the Lorda and C^munaaa pal»-
iIk kitif * btic it waa for Ihetr ri^ta aad
ftinkgo; Q«t for any oew, bai for tlMtr an*
inODS enjoy -^^-^
graoe »i»d iavoiiri y«a
awer«d Uy the woftU i
homble petition, !
that freeaom^ as o r
mc^f ami all their
and hb«.>rtiei, Sol ^
also a (letitioo of tight.
Nor it tbta reqiMai of l_
the use of it, if we maj I
in his Treati^ ol the i
tntes in Parliamefit, I
ThaoiaaHo^i
that it recorded to I
dom of apeeoh.
1 hope I ha?e
tb« Houae of Coma
hi^h court of j
ongioal, at 49 1
the nation iiaelf, and i
Csaar in bit .
the ah^ofigioat, i
petiml baio^i la I ,
law, •taoipa dom. Am. 4 j
their are tberrfara
wiibihaMii»rtlnl
topsM
tarypai
pamaiy, but inc^
aatatat, wbich they 4
^ve dooa^ If llieir «
Isbaliliithai
it aninttthatibal
aia one anlifi bad j i
1409] JhrpMukiMg Danger/kid's NbrraHvt. A. D. 1695.
ri4io
if easily broken when first the twnd !•
IniEen. If this be well coonilerefl, the ciiose-
qoenoe of this case will be better understood.
It eonoems the defendant only by name and
* immediately, but in the right and near
it IB now most evident, that it
aeariy concerns the House of Lords: this in- {termed the Speaker
l^ge, and so allowed by the judfnnent of that
court, by advice of all the judges of boUi
benches.
The Speaker of the House of Commons, by
the rolls of parliament, (which nre the most
proper proofs in a thin^ of this nature) is
ftrmation of Mr. Attorney's, like a Terrm molus^
•r as that great blast would ba?e done (had not
Alnighty God, in his infinite goodness to -this
aation, prevented it) shakes the foundation of
boCh houses, and reaches to all future parlia-
■Mita; it firiebts me to speak what may be the
tftds of it, if it should prevail and be stretched
ii the otraost. I am far from saying or think-
mn it is so intended. But who knows how far
a angle precedent will be made use of in times
tooomer
All the estates in parliament, are all called
by one common name, as Commune Conci-
aam Rcgui, Blagna Curia, they are one body
politic, M. U H. 8, fol. 3, in the Year Book,
[which I cited before to another purpose) ; it is
■id by Fineuz Ch. J. that tlie parliament at the
wmmon law consists of the king, lords, and
Domoioiis, and they are (says he) but one body
sarporatc.
This proves likewise (what 1 before argued)
hat the Commons at the common law (which
a «6 initio) were a part of the parliament.
In the case of Ferrers out of Crompt. Jurisd.
if Courts, fol. 8, 9, 10, (for I keep within my
prapar element, and move in my sphere, and
afta authors of oar own sciaiice of the comnMm
Ivr) H. the 8th, called befora him the lord
ihaai I llor, the judges, the Speaker of the House
if Conmons, and others, and thus expressed
limaelf before them, viz. That he was in-
hrnMd by his judges, that he the kiug an head,
nd the two houses as members, were knit to-
Mber in one body politic, so as whatsoever of-
HKsa or inimy (dunng time of parliament) is
tfered to the meanest member of the house, is
e be jodgod as done to the king's person and
be whole court of parliament. And sir Ed-
sard Noiintague the Ld. Ch. J. then present,
MiAnned all that Uie king had said, and it was
■Biuttd to by all the rest of the jui^pes. Now
f .yea bruisa or pierce the bands, (and the
Qtoasa of Commons may well be compared to
he handa, for they have been the liberaJ hands,
■d the hands foed the head) the liead and all
he rest of the body most quickly be sensible.
In IVewinnard^ Case, Dier. 60, and 61,
he privilege of the Commons upon this very
leeoiuit, is termed the privilege of the parlia-
■eetv aiid the judgment J^ven in that case by
he Honsa of Commons, is there said to be the
t of the most high court of parliament.
I statute of 1 Jac. c. 1, says, the pai-lia-
■sat ia ' the whole body of the realm.'
By the two records that 1 cited before out of
hi affioa of pleas in the Excliequer, 12 £. 4,
tappeara in two several cases of privilege, the
M eemwaing the Lords, and the other con-
: the Ceounoni, in both cases the privi-
a thing
tr of the
Pariiameiit, so it is
|M«aa laid and
roii. zuL
aa one entire privi-
in the roll of 1 11. S, iu sir Robert Cotton's Abr.
tbi. 155, it was in the reign of a king that was
no favourer nf parliaments.
Sir John Bnssey, Speaker to the Parliament,
sir Robert Cotton's AJiir. 30 R. 2, num. 14
and 15.
51 E. 3, num. 87, sir Robert Cotton's Abr.
fol . 1 5 1 , sir Tlionuis H uugerford , Speaker of the
Parliament.
And so is the Speaker of the Commons stvled
in the case of Ferrers, iu CroropUiu*8 Jurisd. of
Courts, fol. 8, 0, 10, (before cite<1.)
In the statute of 6 11. 8, c. 16, the clerk of
the House of Commons is called clerk of the
pariiament.
In the case of Godsol and sir Christ. Hey*
don, IS Jac. iu B. R. in serieant Roll's Rep.
fol. It was affirmed by sir £. C. that iu au-
cient time all the |iarlianieot sat together, aiul
the separation was at the desire of the Com-
mons, notwithstanding, says he, they are but
one House : and he turthcr affirms, tliat lie
had seen a record, SO H. 1, of their degrees
and scats.
Having made it appear that the parliament
is one enure body, and therefore mutually con-
cerned in powers and privileges as to the right
and title oi them, though divided sometimes in
the exercise ; 1 shall proceed briefly to show
what those powera are, in onler to tlic nroviug
that what in our case is charged to he none by
the Speaker, by order and command «)f the par-
liament, (for so 1 may now affirm) is pursuaut
to their |M>wer and jurisdiction.
The parliament hath three powers : 1. A
legislative, in rps|iect of which they arc calkid
the three estates of the realm. 2. A judicial,
iu respect of this it is called Magna Curia, or
the high court of pariiament. 3. A counsel -
Muf power, hence it is calletl. Commune Con-
cihum Reijroi. For the proof of these, 1 shall
cite some tew antiquaries, but chiefly some au-
tbora of our profession of the law, and those of
the best authority with U!i. I shall mention
them without observing any exact nietlnid, be-
cause divers of them extend to more tliati one
of these cUstinct powen, and some of them re-
fer at once to all of them.
Sir Henry Spelman iu his Glossary Tit. Oe-
motum, which was the old Saxon word fur a
pirliament, fol. «i61, * Con ventre,* swys he,
* Regui Principes tain Kuiscopi quani Magis-
' tretiis,' there nre those tliat now make up the
House 4if Lords, ' Liheriq; homines,' there are
the Commons, what is their proper %%ork and
power ? * i'onsulitur de rouununi salute, da
* pace et hello.' This proves them the Com-
mune Concilium Retfui.
Learued Camden': ' Quod Saxoues olim
■ Witteua Qcmot uos I^riiamentum recta diei-
4X
Ufj YWlLLlASlllL ' Ph>c€ediftgi agaiAri Sir H^: WSBbmt^ [HH
*tiins,' M td their jwiv^r, * 8iimimm ei^- 3n>^ Ihe pope dcmnnded bH r«nl tirf dlllt#
*-^ro sarTClttniiiiUh<>rttAtem Uafect - ' ■' '^ t'e- rear». The jm I '-* '*Mkv«, cwatm^ tiWBf
rcfHJis, intcr[»retiini)is, pI in on
>
r<»r of Jvslioes» (this is «» ambority
In lnw) c, 1» tbi. 9, say«f PttrHimenls were in-
stHntevt * PUr oyer et terra in^r ;* this is th%
iujireme eowft *i» I >yer and Temiiner. The
court of KingN-h<;nch ts slid to be above «ll
iMim of Eire tir Ifwierawt ; «n4 if tbc Rmg*i-
lie^ch lie ai^j'jbfiied into any county, where
the EI I ^ *i*^ Eireceases, * Jn [tr«?»
* ieius:
*■ Bui iiiis ini.M i> amvvethe Kmg^s-bciirh and
aH CDiirta of Oyer ttiid Terminer. The KingV
(ieiich is the highest Eire, but tliis is (tccord-
m^ to 8olomoQ^s hyperbole) higher than tht
liighest.
' Bnt what is the proper subjeet of their Oyer
And INsnnhier f Onr ancient atilhor, who wr*ite
iome part of bis book before thecoiiquest^ telK
H^, their work ti to lieiir and determine * let
* plain tes de tort Je roy, de la reign » et d^ leur
* enfaosi* (the kingf'fi children) m that they
itoake an intpaHtal enquiry, hut says onr au-
t1>or iiirtber, * !>e enx specialmeut de queux
*tf»rta lun ne poit aver autrcmenl common
* droit,' this files rery hig'h to prove llieirjii-
dicial |>ower. 1 forbear to Engtifih it.
It is the proper >iork of titis supreme court,
^ deal with such delitiquents, as are loo high
thr thi* court of ihe Kin^*s. bench or other or-
dinary con lis. Against whom, through their
p«>tenfY or miglity intereat, common riglit can*
not beliad, it must be undenHood in ordinary
ooorte. And the wriling' and printiQjg^ of this,
was never taken to be a scandal to the govern*
roeot or to the justice of the nation. For the ,
Author speaks in the person of the king' himself, i hi wliose
and tells us, that the high cnurt of parliament
is armed with a power, able lo cope with and
ijuell the roost insolent offenders.
When the CJreat Jildge of all the earth comes
to make inquisition for blooil^ and to eitecute
judgment hy tltc hands of this high court,
* The loOy looks of roan shall be humhletl, and
* the hanghlioess of men shall lie bowed down
* and mailc low/ To discourse of ihiti jndf^-
^enr, will m;ikea Foclix tremble.
•* We linvc oficn heard it confidi-nlly said from
ftie pulpit, Thnt our laws are like the spiders '^
#cbi», wliich Ccilcli ihe liltle flics, Imt the ^rcat
ones break through ihem. Now il is quite
ri>nimry wiifi this great court, Ibis yrcat court
#ucountei'S only with ^rpdi oifenders. It is
Kke the imperial eagle, * Aouila m*n capit
^ BItisctts/ it leaves them to this and other in-
nfrifir courts, but tiiat lakes ttt task the * Ani-
* ntalia Majora/
In that ifreat case, Rot* Pari* 40 E. 3, num.
7-, king^ John had resigned up ihe crown of!
Cngland to the pope, hy the hnnd of l'*indid- I
tlbua his legate, and sordidly .submitted to take
the crown at his hand a;^tn, at a yearly tri-
bute,
' io thei*ti%ir of iHrr noble kiiig Ediivard the
and comufon!., r i^it • Aathrr tlit 1
I nor any other, t i : 1 , t Ui6 reiSi*
people thereof into subfectici}, * mm
I < de eux/ ThiK intiiii«te% thai wtllil
* joint consent the rroi«ii ma^ be ditpoicd «f. '
This was the highest iwiitttim in kV| %t\
one of the highest points tn law,
the kin^^s claim of an ab»olut<> pi»wer,attli»s I
time when the pope was in hb liMglit liil
the Commons jt>m to ibe i^iilwiMi, li#1
against lUc pope's and king Jolm^ pmmmm^
a despfitic [Kjwet,
Sir Tlin. Smithy who ^iras a mecrelMf i4§
in his Oomroonw, L -S, c. S, M, >0, H *l
* Oomitiis Parlianienimriis tM^«ita *^ t
* solutiB potevtahs tis/ (f V ^f if f
the bead of them, a:s it on
this shows where th»' ali
under Almighty G^h. .ikI aiii««f ^
Magnalia he tells us, ' InccrU Mint (
* versias «lirimnnt/ Th»s nb^irs tlirir in
cendent j«t '
greatest <i 1%
WOuW qnirihbiy ueeicie this liJ^jMjie jotj
versy, were il ouec before lUeru, wilitoai i
roent.
This appears to be the proper hasinai ^i
iiarl lament, e%eu frt»ni ihr \vrli of son
both to Lonis and C' ' bey iid i
anciently difter in an N : il^isll
abundantly shown alretidy) ihry are * Ds J
* duis Rpgni tractitare, n Cohri^iem
^ dere,* here if their *irei
costing to that eqit
* tan^t, ab oiiin "
Their legiAla
out b3' Bracton ,
IriU^
I j4Jod •
■ time of Hvp I
have the Hoom tti begin) 1 1
him before ; * ! habet,'
* quiroTiffI dr f >>flSi!ftStt
* tuij lonsionel
*tni^- !. , -^ _, --■ fbenii!
* et approbaimiT/ 6 H . 4, num, 11. tliel
cord there uses loo grnss a worff l%t i
mons, sayN the roll, require th
harel»een, made it their rei]
and the lords accordeil,^ that '
sons should be removed ou
hoi IMC.
This in some asrei, a-* iti the ui^m d tt I
■ -^ ->ipn
in llir I
would have been tlto
tioii^ t^ni\ a Hiuey ttu
guftg'e of the pnlntt
IJambr. Dr, an
title of the pnm
printed by llie '■ ■■ <
saucy thing with their pr
hands topresume V^
cned. Thu^ «nvt ;
But \' ^
dee<i
of thi: ifiiir ri'fjUMrti \,*y ur rcn
kin^'i hduse^^hef^ l>e iriM
&
JtlSJ Jkr.pujUishing Danger^ltPt Narrative. ^"' A. D« IGBS:
[lAli
»% ia the nigo of a R. 2, or H. 6, but of H. 4,
Be of our wisest and most acti?e valiant kiog^.
But it ina^ be thouffht tliat these four pei^
MM wera m some desperate Popish plot of
illing the king, as the four we have beard ol\
No* the king himself will resolve that doubts
kat noUe king said id answer to it, * He
kneir no cause wherefore they should be re-
Moved, but only for that they were hated of
llie people.' And yet that great king chaived
lOae four to depart from nis house, lliis
tHm their ooooacUing power.
I miffht enumerate a fast multitude of Ani*
alim U^jora, no small flies, that hare in seve-
A a^n been catched in the net or web of an
Soiry made by the House of Commons, who
i only for such greater 6sh, such as we call
m pike, who by oppression live upon the
nailer fish, and devour them. The Commons
> that end tish with a net, that has a wide and
9g^ mesh, such as lets go the small fry, and
Miipanes. none but those of the hirgest size.
acD as the lord Latimer in the time of £. 3,
■kr ao^ such as Michael de la Pool, earl of Suf-
ilk, and k>rd chancellor, in 10 R. S, Thomas
mndeli archbishop of Canterbury, SI R. 1?,
■d Mich like ; William de la Pool, duke of
■fiblky UH H. 6, who were all impeached by
le House of Commons in acreral parliaments.
And I myself bare seen a lord chief Justice
T ftlus court, while he was k>rd chief justice,
md a learned man, by leave from the House of
lOmmons, pleading before that House for him^
■Mt and excusing what he had done in a trial
hat aaaia before them in the west, whereof
■Biipiaint was made to the House. And lie
lid It with that fnmi humility and reverence,
lad thon of his own profession and others,
pare no for his advocates, as that the House
iMJaiLil trnm any further prosecution.
In the late act of IS of his now majesty,
br aalcty of his royal person, there is a
■oviao for the saviuff of the just antient
and the privOege of either of the
of Parlisiment, or any of. their
8, of debating any matters or business,
bieh shall be debated or propounded in either
if the said Houses ; or at any conferences or
■mmittces of both, or either of the said
HoiiMS} or touching the repeal or alteration
if any eld, or the preparing any new laws ;
MTtberediesMngof any public gnevaiicrs^ I
Anrved but now out of Tn^winu. Case in the
hL Dier. that the judgment of the House of
'^ in a case of the privilege of that
Plame, ia that report, is called a judgment of
Iha moit hig^ court of parliament ; which
piafea they are not without a judicial power.
S H. 6, sir Hob. Cott. Alir. fol. 674. The
|ieil case between the carl of Warwick and the
ami Marshal for precedency, fol. 576, vsim
drtwmined by the king, ' By advice niiii con-
amof the Lords and Commons;' and yet one
~ 1 hare thought that a case of prccedf:ncy
(•should have been a pocu-
two peers-s
Lorif. .
In the case of l H. 7. in the yeaif books, foT.
4, about reversing of Attainders, it is advised
by all the judges, that those knights and othera
of the House of Commons, should not sit-in
the -House, till the act for reversal of their
Attainders were passed. And the reason isv
that it ia not convenient, that such as were
attaint should be judges ; (and it might have
been added in their own case) so that attainting
by bill, or revcMng attainder*, though by bill,
is most properly a judicial act, and the
members of the House of Commons are ac-
knowledged to be judges in that case by all the
judges, and by that statute of 6 H. 8. c. 16.
which I mentioned before to another purpose;
the Journal of the House of Commons is called
a record.
I have formerly observed, but to anotlier
purpose too, that the writs of summons
anciently for electing knights, citizens and
burgesses to parliament, did direct them in their
duty, that they were to meet * ad Consulendun^
et consilium impendere,' though of late years
this has been omitted, and now advantage ife
taken of it.
Let us in the next place examine, whether the
matters acted in this case by the House of
Commons be warranted by these powers of the
parliament, and have been done in pursuance of
those powers.
And upon examination, we shall find their
have done nothing but what they had a i'ufl
power to do, and what is agreeable to the law
and usage of parliament.
It is set forth in the plea, (and admitted by
the demurrer, but we all know it to be true)
that there was an horrid, devilish, and Popish
plot The enquiry afler which, and the search-
ing of it to the bottom, and discovering all the
accomplices, was * Negotiuiu-.Arduum,* and ft
did * Regem, ot Statum R^ni specialiter tan-
gere,' according to the writ of summons te
parliament. ■
For the plea tells us the design of it, viz. to
kill the king. 9dly. To subvert the govern*
ment and the laws, to suppress the true re-
ligion, and to destroy the professors of it^
The plea shows, that one great lonl was con-
victed of it by impeachment of the Commons,
and attaintedf before the Lonls. The king's
speech shows there was neeil of furtiier eut|uiry,
and that it was not as yet thoroughly done, nor
himself, nor the two Houses safe ; mid the king
charges Iwth Houses to make nil impartial
eiiquiry. The woni impartiuriiu|»oits, thi*!^
might he some grtat ptM-sons cuiiceriifil; tlif^t
miirht lie apt to he favoured.
And tlic pl(^ shows tint both lloii*<rs accord-
ingly made a strict and impartial ciupiiry after
the ronytpiracy.
All thij ippears plainly <n he tiic propinr work
ofaparliument, and histnajesty hiiiisi'if wns of
that judiriuciit, and char^tMl tiieiu lo do their
duty in it.
And the enquiry is the mo^t projNT business
of the House of Coninions.
- ¥9Ji tbii reason they are eonMDoiily< ttyM
iN^^Ti^
ifli bow Mtte tbi
err poMie by fcmr dd
l^cdi, lb«Ji^ ttuti
c«rii<
7 WnXIAM III. Ffoe^€ding$ cgumft Sir B^m WaSmi, [l«t
tnent ; uid tntleel all «»«iiorjMliMOi|li«
be or>eii ati<i orm*tv reatfff.
TUt : oTtHiMScrMlbtai
ft reconi irl, »0<f 1»ftQiinill
any penoti iua> resort, m «^r E. Cldb
hii Prtfiiev ta the 3f) Ftep 9iti1 t!ut Hfi
iinciciit Jaw of EftjE^i i»»iisdwi>r
a gfeueml act of \m i j E I, » ^A
Iboo^ a gvoerml bw it nm in tlicpniilM
of acalulet. ai 1 obiovai of iiMitii |lii>
and QMfiil ut of paHtsmrot lif««dluiM)
oomes to past) in ibat art ot^ 46 £. i^tte
monf prayed tbal o f«canl iif utalvo^t
done in the king's eO«rt» ottybt ia raioa tii^
mtin there ^ perpetnd ofidaiof lir 4 p
SODS. AodtfaojeinDplftblbaliiCbinhiaii
b>d refined to odlfiBr ll^ poof^ t» MT^iai
to have cxeiDplt^eatioiis Ibr tfitoeeifi*
the king or tu bia dioftJfiQliSC*
ihey pray that teafdi asd
mad« to auy person of aoy
thoog:h it concern tbo kiof or iif
make afcoiost tbe bine or mf M9*
amwer it, ' Le Hoylo voet.*
Bot then it irai nwdo AiOfc OTUb^ Mr
detirerediii at Ibe bar oT teBMB 4
mofit, which oufbt to coonrt tf iM M
tneiubera, who are s«ppoied lo um
parts of tbebbupbai: solliittlii
rery piiblte, hAm ibis pabbibbl
priot
Let me oboerre byOic irair«tbol lbii«
of the iafonnatioo (EhtmmOm^pMi^
not sent lor by the Honso of ClWWIiMi
for any tbbir ibat opfom. OMfa hW
tbe HoQsa or GooiiMOB, OS be M WHlff
10 tbe Lofdt, ofbb mm ooeoid, nteibk
far from ualioe or iU flai|pi«
TbeConmioiitonleritlobtiiftirs* "^
Jonraal, amoof olber talhPMaiMi
been gtf en tbem. AwA bciMi, ibqy
and teferal olbrrs to h«fitiolid*
Hbe ofleooe and Tinnal m sa
Attorney's
fi«ed waolboroof
bear tbe Hoose of
ibcmoelrescolbiapoiol: lb«f cooU (it^
bo) giro a bettor Meomicfit, aiilma^v^^
reoBon for tbe prwiiv of it. Bui Itf ''**L.
aerrod, Ibey barely aMseil lo bo prMd. Til
dv not (pT« any atteatalM or ctmI Io il« b
leave aJ 1 that kear or fvail it» to jvdft w kl«
ao tbcy tbinb du Tt^nr ibi ait Bsbr fi ii
ova, by printior it villiool neniaoaof tbeW
1*15]
The Grand Inquefst of the nation, though sir
Robert FiUiier^s Ulil writing terms them so by
way of dimioutiou and contempt^ (as if enquiry
were tbetr highest work).
This eo«(nii V of theirs it nec4ssiary in a boH-
lerfiency to ufl the seTeml hig-h powers of that
bigh court Namely, in order ta their lei|rts.
lature, or to the tuceroise of their power of
I jiidicatnn?.
Coorta that have power of Oyer and Ter-
siner, and to punish great and enormous
' Crimea, are siiU by thdr commissioners anoed
• with a power of eiapannelUo^ grand inqoests,
to make eni]iitnc« io order to their exercise of
their p»Mrer of detennining.
Or ft may be in order to their eonnsellhig
jioiver, tor removal of great officers or fkrorites,
wberrof 1 hare gifeu an mstsoce, and the
porliiiment Rolls and Joomals are full of them.
Biit still they first make enquiry. They
etiquire among theiHselves, and erery grand
juryman by his otith is to iiupart his know-
ti^lt^' m any thing material to his fellows. But
the uioiit edectual enqtitry is most probably
from Without doors; and without such enquiry,
things of great imporLaoce may lie cooeeal^l.
And the drfcsidanis plea shows some good
effect of that eiiq;uiry, Uiverx were conri^ed :
and one Tbotnae Daugerfield deliferrd in an
Io format too, and that upon oath, sod first to
the LoTda* Boose, so that it did not begin with
.^he CuiBmoBs; hut if it were so iniamotis and
malieioua, why did not the l^rds reject tt» and
coiamit the informer and puaish him? No,
they receired it, and entered it of record in tbetr
Journal. The reason was, it waa done in a
cimrae of legal proceeding, they ooidd not re-
ject tt, being the proper court of justice for a
abuig of this uaturr. And the king had gireo
it tbem to charge to enquire. Nor do tliey by
.reoemiffof it giro it any oountenanoe or
credit. Then why shoold it be so heinooa a
thing io the House of Commons, more thao in
liie Lofds P L^ US remember stili they are Uit
one body ; and though tbey sever thcmselres
for lN4r better ibspaicb or fbek* great atfaira^
aud distriboaatba work anioogat Ibim, yoitbt
power by whieb tbey acty ii entire.
But wb V ihoold any maiB dftide and aerer
tbose ihat are eatiref It conoenia tbe Lords
nyiaity wiib Ibo Dommoiia,
But bow cornea it to oooccro the Speaker of
ibe Gammons so highly above the Honae tlself^
wbo aeia merely as a minister, and by oem*
mood of tbe House; butibal 1 raecic for a
yoitii distbitl.
Bnt pet bops it may be aUosred, that what is
House, io reoeitiug Oanzer-
an and entering of tt in &oir
io io parliamenlary enmigb* But tbe
i and senndai artses lint opnn ibe pob-
f o^ it m pnnt. Now a wool or two la
Mippondlfjw
In begin btf«i
it» Iwishwf
jiMtioe» I. a.
Ifiiwtsnnbbdaiid
aiiA bi ^hfhpAmsmm
« Ibn LnsdTmMirt
, wbvi
ao«ho9dldf WbiMtbeynit
ibei
If »t were no <
ilto^oUcdi,«
Ibej)
^tbeou
Jhr publishing Dangerfid(Ps Narrative. A. D» 1G95.
[1418
e to print it as beiug his, tnd with
the matter of that iDfonnation were
le, yet what is done by thefloose
as and by the defendant as their
all true, that is that Thomas Dan-
I drawn up, and was the author of
latioo, and this was true. By the
t punish the reporters of false newt,
' IS but imprisonment, till the first
brought forth, and that is done in
[See the Ist St. in such cases of
lise news, ?iz. W. 1, c. M, the re-
y to be imprisoned till he have found
whom the word was moved. So is
, the Stat. De Scandalis Maffnatum.
L S, G. 11. Dier, 155. The lady
case, Crok. Jac. 163, but more fully
I actions of slander, fol. 19, SO. If
r sbinder be brought for reporting
ler had said slanderously, the plea
iration must aver that^. did nerer
the defendant may plead that in
(t so report, and it is a good plea, by
Leonanl's Ren. 1, p. 287, in an in-
;)on the stat. or W. 1, c. S3, and 2 R.
r reporting false news, it was found
as to the defendant's reporting the
but as to the * maliciose et seditiose,
IS,' and the defendant therefore dis-
lior is avouched, and his name is
h the information, and it is upon
he Lords' House, and he in person
it to the Lords.
if there can be any just reason or
signed for the printing of it, it shall
ciibed to malice or ill design, and
ilice alledged, this information lies
can a thing so dishonourable as ma-
design, be decently or justly con-
Igected against so great and grave
ly: Why? It is the body of the
)n. And can a whole nation be in
pected to harbour malice, and to
ugn against the common-weal, that
themselves ?
lay most probably and justly be this
, to induce the printing this narrative
tion of Oangrrfleld. The plot was
rate and dangerous, it was not yet
vered and searched to the bottom.
commanded by the king lo search
o it. Besides it was the proper
e Housf of Commons so to enquire,
re the grand inquest of the nation.
>ne positive wituess already that had
lese particulars, before the highest
istioe, where the great persons con-
t, sate themseUes as members of the
use. But one witness alone, though
Bcient to make an accusation, yet it
[>uffh to make a conviction ; in high
B taw requires two at least. The
*ommons could not in duty and con-
khe king and kingdom, pass it by or
1
This Information, though but from one man,
might possibly have given courw to another
person or more than one to testify to the same
particulars, if there were any more that knew
them to be true, who were nnwilling to be tb«
first in the discovery, not knowing but they
might stand singly in it: but finding the dis-
covery already made and sworn to, might then
think it their dotv, and be encouraged to ap-
pear also in it, when it might probably be of
effect and amount to a legal testimony. The
difficulty, and the danger, and discouragement,
lay upon the first inibraier.
This consideration might induce the House
of Commons out of a sense of their duty, to
make a further and impartial enquiry as his
majesty had commanded them, to make it yet
rif povible} a little more public in order to a
rnller proof : and printing is but one wa^ among
many other of publishing or enquiring into any
matter. And of late years enquir]^ by printing
has been a most frequent practice, and we
meet with it every week, and it is become the
most ordinary way of making enquiries, which
run into all parts of the nation. And the print-
ing of public proceedings at trials, has been ge-
nerally of late practised by the courts of law,
or by the judges of those oourtt, or by the
chief of them.
But what has made this Information oTDtn-
gerfiekl's more public, than Mr. Attorney Ge-
neral's preferring this Information against the
defendant Mr. Williams, for causing it to be
published in print? Had it not been thus
awakened again, it might have slept in silence,
and have been buried in oblivion. Tacitus the
Reman historian, tells us in his Annals, in the
life of Nero, of one Fabricius Veieuto, who was
accused for uttering slanderous speeches
against the lords of the senate and against the
priests, in certain books, which he termed
Codicellos, which in our dialect, is the same
with libels or little books. Nero would hav^
the bearing of the cause himself, and he was
convicted before him, and was condemned to
exile, and his books were isentenced to be burnt.
Tacitus observes, that before this sentence for
the burning of the books, there was little notice
taken of these books, and few there were that
read them : but when once it grew dangerous
to read them, then they were much sought
af\er. But the very opening of that Informa-
tion of Dangerfield here in this great court,
and in so great an audience, which was of ne-
cessity^ and occasioned by Mr. Attorney's In-
formation that recites it, though Mr. Attorney
never intended this ill consequence, haih macfe
the matter of it as public as possibly can be.
And it must be observed, that it never yet
came so far as to a trial, nor to have an igno-
ramus found, much less to an acquittal moda
Ugitimot in which case, according to the opi-
nion of some judges, an action of conspiracy,
or upon the case for a slander will not lye, as
not being ripe for it till an acquittal : by the
same rtaaon it is not ready for an Information,
And the greater the |>ersoos tre, if they
1 the rank of suhjecls, they must be sub-
ject to the Lingo's Ui*&, and they are the more
projier lor the uiidertukiag and encounter ofthis
hij^ii court, h tviltnot be ' Impar cougressiii,*
1 cited before^ the Mirror of Juiitices, c. 1,
p* d» where it ii said, Uiat parliameots were
i^rdiittied for to heu* «nd detcrnalDe iu &ucb
wrongs, and at^iost such persons, especially
iigmn«t H horn olherw ise conimoii right cannot
be h&d. I will cite no historians 1o prore what
liftlh been done in aiitient times within this very
kfO^onif of thiii nature araiust the lii^heat
sul^ecU. 1 wilt keep sliu vrithiu my owo
jipbere, "-' "*'^ none but authorities inlaw.
And au rir in the way that belonga to
iue» an-' I am under the protectiun of
Ihli cov \\\e laWf and may rely uf^wn
ibe (^r^ ri| that blessed promise, ' Ue
miW keep ihee in all thy ways,* There imtH bt
DO res|>ect of persons in doing justice. The
l^at Judeeul* all the world gire« it as a rule,
and bioisett fires the example, * God is iio re-
i^ect er of perao&s . '
Tbe kia^ was pleased to ebar^e both Hoiisaa,
i» fomke a stiict and impartial eti<}utry. f shall
eiietwo anthortties tn law, thai come to this
p^ial, T^e&rat is in cntofa brother and lieir ap-
iarml too^ and of a MnoQ Ibal did afl«r sue-
f in iJie crows. Kimg Rieliafil tlia m b
Ilk M^fiw CuHa. * pe^it sibi Judtdmn fieri
iaComtieiobanuefrstresQOQtticattlvm fiMi* I
PMiia eoatra einii
Tiwt
o juraT«iat,
it Mtj faartly fe abfacted tbat tbt luAf
iBMif oaoMlaiaH : Thikbiii he oaqi^hiBi
and is ID bis greatest si
deed is prasiuoed ia|
which makes the **
* Coram Heee/
bean said to bare
hishtgbeoiirtof
as FJ. 8i one of the hi
lute of oar kint^ said in
(which I cited
he was intiMinc-
tbeo presem) that he m
in his slate rovat, as m I
Then if we eoinitkr ib»
J. Gaseoigti eoauniltidp
settled fixed hm^ and d
whose chair now
Hottsaiu time gf
this piriiice
* Ne$cit Tm|ierarar
The ?-
say a
What
preadied
tbeat eases IhaA 11
calM ilktai mim
aronM bates
] • JhrpMuhing Ddngerfidffs NarraKve. ' ' A. D. 169B.
[1423
ever dooMad but they wert sabject to the
process be erronemii. * Qui jiura judicis ali-
' quod feoerit, non Tidctur dolo nialo fecisse
* quia iMTere necesae est.*
Keilwey 91>« h roed. by Brudnel, and the
lord Dier in Trewinnard's Case, fol. dO^ h.
Where a writ of privilege in case of a parlia-
ment^man arrested, is granted, where it ou||flit
not to be ; and the sncrifl* by virtue of thaifc
writ discharged tlie person arrested. Yet the
8herifr(saith that case) is not chartreabic in an
action for this : * Farere ncccsse est.' What
that necessity is we may see in that case of
Trewinnard, Dier fo. 61, 4 me<l. if the sheriiT
refuse to execute the writ. And as a fair warn-
ing to slicrifi*!! and other officers, not to resist or
disobey the commands and onlersof the House
of Commons, the lunl Dier mentions what pu-
nishment was inHicteil u|wii the sheriffs of Iion-
don, in the case of Geo. Ferrers. They were
committed to the Tower for their contempt in
not letting a parliament- man taken in execu-
tion, to go at larcfc, when the Serjeant at Arms
of tlie House of Commons came for him with-
out a writ. Nay, the lord Dier says, in the
latter end of that case of Trewinnard, that if
the parliament ermi, (he speaks it of the Uousp
of Commons) yet there is no default in the she-
riflf. When the late king being in person in
the House of Commons, and sitting in the
Speaker's chair, asku«l the then Speaker, ^Vhe^-
ther certain members, whom the king nameil,
were then in tlie House i* The S|ieaker an*
swered readily and wJM^Iy, and with a good
presentness ot mjml ( which arose from the ge-
nius of that HoiiKi-) * That liu had rieithcr f.ye^
^ to see, nor ton<;ue to speak,' butajk the HdU'.r
was pleased to direct him.
3. As to the last point ; Tliat fur matters
done in or by the parlianicrit (sm the matters
in <MJr ease are) neither thr Kii>|;'s- bench,
nor any othf;r court, but the cruirt of |iarha-
nient itfcif, can hy law take ef};;nizance of it.
Thi<i is the gri-at |»i)iiit of tlie cxse.
I shall fiiit offer tn protc it hy lteason<i, and
then I shall back and erifurce tiiosr* ri.json-<f by
many authoriiien, and those of the hi(;tie<it sort.
1 lleason. The parliani«:nt gives laW to iW.x
court of the King's liench, and to all otiif.
courts of the kingilom ; ami thf.n.fof. a is ah
«>(iid and preposterous that it shonli! nci-iir
law from it, and be subject Vt it. TIj*: ^c':dit:i
It not judged of the less.
2. The |iarlianifnt Ih the imrrc-;M;ite cirirt
for examining th«* jii'!|;rii<-iitH ot tin: ciwrt r.t
Kir;f'j»-|jenr'h, aiid if ihi-v l»e prroowfUi, t'u^y
r'\frsi' ihein ; and if ihii i:oij.'l should a^^asult
Uvv lake njftit ih#ni to prori-ril in thi<i rauso
rmd t'if*^ Midgriicnt, tli«' par||.irri«'rit v»li»-n it
ri.»':ts, 1.0 (!oufit, wi'l vt it asiii*f as errnj.pt^in .
and no m:in d'Hrs ui tlio k-a^it doubt hut th«-y
er te jprooeed to my lecobd point, wherein
I be brief, ruB. That howev^er, the matters
cd in the Attorney General's Information
IC to be imputed to the defendant in this
be beiog out the minister or mouth of
loow, and acting only by their order. He
pcntly in the parliament records styled
Buth ef the Home whose Speaker he is.
. HakeweN in hia Treatise of Parliaments,
XI, among the catafogoe of Spealaftv, be-
with Petrus de Mountf. whom he makes
ctr, 44 H. 3, of the House of Commons,
■e cites the repster of St. Albans tor it,
Of, where it is said that Pietrus de Mount*
Hee totius commanitatis consented to the
MDt of banishment of Adomar ile Valence
p of Winchester, and sir Robert Cotton
m with Mr. Hakewell in this point. Mr.
I In hit preface to sir Robert Cotton's Abr.
10 opinion by himself, that * tota conimu-
1* signifies the whole liarunage. But it ap-
Iby the body of the letter there written,
' eoimnunitas' b distinguished from the
JMct.' Sir Robert Cotton's Abridgement,
S,fbl. 12, in the upper part, it is said, the
band great men by the mouth of sir Henry
iBraot. 31 r. Hakewell in his aforesai^l
like, speaking of William TrusscI, says,
^moiM answered by his mouth : ID E.
9R. 2, Dumb. 16, nr Robert Cotton's Abr.
74. The Commons return their Answer
he king by sir James Pickering their
ker. 17 R*. 2, numb. 17, sir R. Cott. Abr.
The Idng advising with the Commons,
Wing a peace with France, rctunj tfieir
cr by air John Bussey their Speaker.
lekewell in his book before cite«l, fol. S0:>,
4, nays, that sir John Ti].ioft, vihile he
speaker, signed and seeled tlie deei! of en-
r the crown with these viords, ' Nomine
i« commonitatis.'
- Elsing in bis Treatif e of Parliaments,
25, tells as, that what was s|Kik( n by the
Ker is entered m the rolls, as s(ioken by
-«mmon!i.
t fake what is done by the defV-ndsnt to be
"^per acting, yet he aciin*,r cit) y as m mi- '.
• end servant to thehis;h ronrl'of parlia- '
ft by the ordinary' rules of la-.r, In «-a«»e* fif '
vs« he is not suable. r.or ai.v wnv [ .::.!-:i.
^M-it.
is is resoWed in th<* coup.'f ^s rf Rirlan'i*
6 Rep. 5%. and the sain** < a-«; t.-ke«ri%e r'*- '
d in Sloor'tf Rep. 76.'». Tim :ri offiry-r or .
>tcr executing process which .* err/.n* nu'ily
rted (as where a cfsptai i* a»iro'»-il b'^u'mst '
V) tiitf officer is to he excti^d : f"r lit- imikt •
isputethe euihority of the co«jn. b a obi-y. •
I link d'iu*4
iM4 the serjeanu in I^ndon were e»'-u%ed j but tb»-y will ilo ii ; i'ufr*-itnf it it wholly ii
■rid not gudty of any offenr*.. . »ain f-^r ibit i.-./urt \o l-ilf «:";fr;:z.'iO'.»:of it ;'ar 1
in the case of tbe'Mar^bb.K?. I'j H^p. ; it rauTsot be tt^'i^i »-l*wwh«^i', it U rig in a
■bcrathe distinction is. If the court h^rn i rniii^^r of jmi^iir.uvn S^n the staiut« of 27
mental the offieer is escased though the Eia c. 8.
Th^ pr»-%rnble rcr.iiing, flat p-rro-
UtS]
7 WILLIAM IIL Proeeeiiiigs.a5ai7ui Sir Wwu WilUant,
seoufl jodgiBcnti giren in the Kin^'s-beoch are
only to be refurmed by the lugh court of par-
liawent ; wbich court of pari lameBt was not in
those dayi to often holdeD, as id aadent time
it had been: neither vet in respect of the
^naler a&ira of the realm coukl they weM be
oonsidered of and determined in paiiiafflent, &c.
[iJac. c. 1. The hke words.]
There is an ezcoption of errors thai con-
cerned the jurisdiction of the King's-bench ;
those remain as before ; and in the &mn that
an referred to the jud^ of the Common Plena
and barons of the Ezcheqner, by S7 £lia. c. 8,
the jurisdiction of the parliament is to examine
them, &C.
5. This court, as all the courts of common-
law, judge only by the ordinary roles of the
common-law. 'But the proccediufTi of parlia-
ment are by quite another rnle. The matters
in parliament are to be discussed and detennined
by the custom and usage of parliament, and the
course of parliament ; and neither by the drilv
nor the common-law, used in other coorta.
4. The jodffes of this, and of the other
coorta of common law in Westminster, are but
assistants and attendants to the high court of
parliament: and shall the assistants judge of
their soperiors .'
6. The hi^h court of parliament is the
derni?r resort, and this is creoerally aflirmed
and held ; but it is not the last, if what the; do
may vet again be examined and controlled.*
6. Yhe parliament is of an absolute and un-
limited poirer in things temporal within this
nation.
I sbsil now proceed lo Authorities that are
full :o i:i:s ; ■• :.i. ar.J lio second aii-i back ihtsr
rc;^?- > ir.i: I liiTe'iFere-: ; i*ber€.n I shall r.-i
i-Li5e;\t i:.y rae:..- J by reducir:.: Pr ra-ikin^ i-r
lijtm L . .t: t.-r'-e rcM^n* that 1 have oiftrt'J.
l*ca-«e *-. r.:€ '■•I tne aiitr-'.-r.t.csjuiLty severil
\.'i rhc*€ rtiSvr.s. a., at t::ce.
That tlie pi7..anii:i:t 'iia»:i i;.e h'^bc*! and
ir.-*: sccTxrC aiitl)Oi.i_v i-t an\ ciurt : ".iii ::
hiiii 2,7. -'■- 'r^ie ;■<-.« /r : iliatV. .« the lii.-hT-s:
c- ::l .Ti :;•;■. rii.tr. > ackiiO^U'dje^i L-y •. jr
n: .•;: .■.i::.f:<i ^r . ^ -.\ ^s writers acd List -
r ir.rr ; ? > I •.* ..: r. : \>lio'.y Litii iherr.
I .■Jii^.i I ■:.■ r. ..: ■. ■ e: i..-:'j ; b.: I rr!y •■.i.._\.
a3"j j-j: a . ♦'.•- 5:'':>i >"»t mv f-r-v j* ai 1 ar^j-.:-
ir.eL!s u\}'-z :: \ * i-L:--.;.** in !*•*.
erroneous proceedings in iicher coort
tborities in law, wfai«^ oonfirmf oae •
In Trewinnard's case, it is i
the parKaraeat err, it is not i
other court : this is spoken in a CMe i
then occasion was upon a jodgw
onl jr by the House of Coauwas, ia i
pri»ile^.
Agreeable to this is SI E. 9, fo. 46.
Tit Error, pisc. 66, in the Utter a
case, and 7 U. 6, Br. Afar. Til Ensr.
bv Cottesmore, and 1 H. 7, fo. 19, 1
pUc. ]37. Error in parlianmi fin
▼ersed in parliament, * et noo aiiier;'
is not an higher court. 1 II. 7, f
By all the jndgei in the Eichc^aff-
for a judgment in the Kin«Vbcoc
must be sued in parliament ; and tstl
ment shall correct the judgmeals, is
to correct the judges that gire eom^
liooest judgments. These are the i
the opiniooa of the kwd chief jmm
in his Repoits, fo. 139, in Buahcl'ica
says he, in all agea have been coapli
the king in the Star-rhamber, («
conn now dissolred by parliameati
parliameoL He there mentions max
those 44 that were hangttd in kisi
time before the eooqueft, for corr
ments ; and tboeein the tinae of E. 1
R. 2, for their pcraicioas renU
▼ooches the jooinals of pariiaafoi
fctaDces in the Judgment of Ship-mo
I IjaI kind's time. ac<l the pan.cuhr j
! fieached*.
, .Sir L.Coke. iuLii ICRep. :" '. .-i
a-e "ipvken i\ *:r L. f U:: -»i..i'.
• viiih tLe c.«irc*:'nP€Dt '-•i' ji. i;.-.- J«J.
kr^ -ir-ih l.:s cv«;n. that :^ : • >a} . .-.
IK<-iM I-t' rarui.iteni. -.n »:..c£i -t
i l>?nis :> t"..c snprtiTie y^c^z o»t!
j id^t*. Ft ii"c.-7*rbe id the i -"x
\:y. It iiie c^vin rf Ki qs**- >.-»... er*
. to reversed la i..c --f'/c: Ho >•-• ■ r' 1
b-. i'k kifiT «::ri :..c .LS»rr.t •■: -i,^ i
■.:.-i i;
er.:.:t
Car.
I'r
.■v- jr.: ;
-■' -I)
■ i-<
e evt-n:. ■-
lit .a.>
• >.)Tim'.n €i
,:^:P.ir.v-::-er-
V.. •ri5>:r ! .
•{ (.
i:i'...^"i MIS IS <',veke- -^t
'.•r.'i. vti .t niusibe <:-i.-i r
,e larhioat-ct i ii I p .-v^ci: t^
l->!y. and that tbea- ^-jwer i:
:: I* r-=-.-e, though a* Ij the <x
.s ■:*•-. j'.-d lato j.Art>, a2>»: »i d.^
P; iLe H ;w*« oi' L-.-nls eie--. *€ a:)
! H. .:>c t' Pan.arsr-.t, or a» a Ch
-s. ».i. :: Mr H ..«€ •:•!" C'jmn
r." a: : .•. >aj-e :.'."-:. lt.^th H
. . r ^u-. :-,:e:::'.7. i:. i d.4*olfeil
k* ;.-.r :■» i> -:r" H.. r-x:raus. ifaey I
-t-.be.-. ir. : i:.e -.c« canz ?: be m bi
: '.J-. c.'icr a ^>. a: the ^aoM tine i
\
n;
wt* t..
i.
u-j ■-■<.'
i :. Matters of
• >-- t.
ofthvUli
Jbrjmhlishing DangerfiekTs Narreiivei
pro
A. J), lesa.
lUSS
It. 599. Coorts «t ?arianee,
tin to the parliament.
In the Chapter of the court of the
h, errors in the Kingr'g.hench in
t concern their jnrtsdiction, and
there excepted in the act of ftf
3. cannot be reversed but in the
f parliament.
1 (37. There is a court erected by
f 14 £. 3. oap. 5. Stat. S. For re-
jE of jud^i^ents in the kind's gpreat
istiug of a prelate, two earls, and
to be chosen in parliaraent by that
ihf case before them be so difficult,
' not well be determined irithout
parliament, (it does not say by the
rds only) then shall the tenor of the
)U(;[ht by the said prelate, earls and
the next parliament, and there a
•ot shall be^en.
irum et difficile sit Judidom,
idiciain res|>ectu usq; magnam ca-
. Pari. U £. 3. Nam. ult Sir
ton's case.
ap. 9. The chapter of Treason in
ul. 31.Thejudgeoroourt in some
forbear going to judgment till the
wH before the king and hisparlia-
er it ought to be judged treason or
court proceeds by tiie ordinary
common law ; but that hiffh court
t proceeds not by that law, but bv a
to that high court, which is called
isuetudo IHirlianienti,' and consists
ms, usages, and course of pariia-
therefore, this court, nor no other
t, can, for this very reason, judge
! of what is doue in parliament, or
ment.
urt should take upon it to proceed
B, it would justly be said of it as a
T«*gu]ar. * Metiri se quemq; suo
|K;«le, venim est.*
>tt. Abr. 90, R. S,nu. 14, 15.
hiaxey delivered n bill to the Com-
rlirfment, for the h -noor and profit
anil of all the realm, com pruning
^eous **xii(*rceM at the king's house,
Iff liishopK :i!id laiMes.
Camh. I>r. 1 Itavp before roen-
d t:tke «>ct*asioii again to complain
le^H of thiM bill.
/asoffendpit wiih the Commons for
lis hill to the kin*^ ; for it seems
ilerlaiiifd this inlormation fVom a
rin i, (an wns done in our case from
) and lh«*y |>ror<*ee|pd upon it.
sHiil it uas all offfiicc against his
libeity, and said he would be free
or delivered to them, but by the House itself,
and that is xme of the laws and customs of
parliament; and yet, no doubt but it was
well known to every member of that House,
ajid yet it came not to the king's knowledge.
Nu. 16. The Comroona delivered to the king
the name of the ezhibiteri which was sir Tbo.
Haxey.
Nu. 17. Tlie Commons afterwards earoe
and submitted themselves to tlie king, and
craved pardon, nnd the king excused them.
Nu. 93. 8ir Tho. Haxey .was adjudged by
parliament to die as a traitor. The king watf
offended, the Commons forsook the exhibifer,
and submitted, and the Lords adindge him
guilty of treamm. This teems to be a strong
case against the libertT and the privilege of the
House of Commons, (but it seems strange how
it should be made treason ;> but it is strangw ;
•speotally, if it be soppooed this sir Tho.
Haxey was a member of the House, one would
have thought be should have been under a pro-
tection and special privilege. But I take mm
to be no member, for be is afterwards called sir
Tbo. Haxey, clerk ; and graduates in the uni-
versity and those in orders, were usually digni-
fied with the addition t>f sir; and it is not yet
quite out of use in the university, .
I find by Mr. Pryn, in his plea for the Lords,
fol. 345, that in the next king's reign, H. 4, tho
Commons exhibited a petition on tho behalf of
sir Tho. Haxey, (for be was not executed, the
archbishcp of Canterbury took him into his
protection, being a . clergyman ;) and the
Commons in their petition affirm, that the judg-
ment against sir Thomas Haxey, for delivering
in this bill to the Commons in parliament, was
against right, and tlie course that had been used
before in parliament, in destruction of the «ua-
toms of the Commons.
Here note. That the right and course of par-
liament, and the customs of the Comnoons, are
mentioned as synonymies.
' Upon this petition of the Commons, the judg-
ment is adjudged to be null and void.
But thu could be adjudged no where but in
parliament, for it concerned the right and pri-
vilege, and the customs and course of the
parliament.
1 U. 4. nu. 91, In sir Rob. Cott. Abr. the
record says, sir Tho. Haxey, clerk, (Minloned,
and the judgment reversed, and he restored to
, all.
I This case, in very many circumstances, smts
t with the case of Dangerileld, and in many,
' with our present case. Ours is in the case of
' an heir s^piiart'iit or presumptive. But a
I (rreater than the heir is here, in this rsse of sir
I Tho. Haxey, namely, the then king himself.
But I cite it, principally to prove one of my
the third
: reajtnns and arguments to the third point,
fohn Buvsey, the Sppnkfr to the | nnniely. that there arc rights and customs that
[as that roll of parliament calH ' are peculiar to the Iii;;rh court of parliament -
rgeil to declare the name
Ml that hill.
I appears the king could not take
it was donein the Ckrmmons' House,
U.
of him j and that there is a law called the course of |rar-
I' liamcnts, ami it may he observed, thul the cus-
toms of the Commons are the law and courMOf
parliament.
I 4Y
Domawns'liouie, uota ib« time miglil try the
ftme; and that time is wbeft the Commottt
[ipply to tlie king in it, and not before, Uhere-
Utilo the kinj^ granted ; ^vhich allows it to be
the law and course of the parUament.
4 lost, fol 15, Every court of jastice, sayfi
fir E, C. hath rules and custom* for its three-
liOQ. 80 the htjrh court of parhaineat^ ^ de
* suit propriis tegihus et coasuetodmibus con-
* siitiit.'
Again, sir E. C. in his Select Cases, printed
1677, fol. 03.
Note, says he, the prinleij^e^ order, or cus-
torn of parliament, either of the Upper House,
or of the House of Comtnons, hclonga to the
determioation ooW of the court of parlianioul,
Aod there he cites two precedents for it-
The first that of *27 H* 6, 10 the conlrovcrRy
between the earls of Aruodel and I)e?oiishire,
fur precedency ; the king, by adwice of the
XfOrds, rcferrt'd it to the jud§res to examine and
to report ; not finaUy to deierroine as judg^es of
the ckhe, biAt as asst^taiits to the Lotdii.
The judges answered. That it w as a matter
ofjiaiiiament, and beloii|j^ed to the king and the
Lords 10 determine.
One would think this were a strange ansiver
of the judgtfS, to deny their advic<? ; wcrethey^
not •asislanls to the LonU in maiti is of laiv j**
The true reason of their dcchniug to give
their advice, i;*, it was a ca^e above Iheuii ma]
not to be determined by the ordinary rules of
law, and therefure out uf their element, * Omvh
* supra nos, nihil ad nos,* Tlicrefore their iin-
■wer Wtt5, That il v%as a matter ot p.iihameut,
aiid belonged to the kuig and Lords, hut not to
th? judges.
ThJH is a resolution of ^U f b« judgas ja the
This i« in ti case that
of the Coiumons t&nd tl
they say, that judgii
jadge of iUr pnillw
thailhep
those of t
nlon law b tbo pi
the courUof VVesti
This is a second
m the verv point.
Mr, Hakewel, id hts
of Enacting Laws in l^
ports this case of Thorp
It is tiine now to C(ini(
thai is, to resolutions
point.
And fir«t, tht^ irMilui
Coinmuns in ti
or atlea«il a ciai
of an author thai i«
friend In the House of
I'lcrgyinan too. I ni
Life of flrrlihi!$hop Liii
that the House ot ""
tiou in lr]',;i, agni
tlt^n in the House,
done.
Let me (iresent yon
mtide jpy tlit^ l^rds, whi
thing in the form of au
Insir Uob. Cott. Abr.
thot (tarhamenl, all the
lis temporal, lieinp
bertics and franchises ;
matters in the same par
be alterward^ u^oved, tot
land, ought to be dcten
cusseil by the cotirKe of
f jmhVuhing DangorpeUPs Narrative. A. D. 1695.
[14S0
ct of parliaraeDt full io tlic
can go no higher.
ISC of Richard Strode, one of
Plvmpton in Defonshire, in
4 U. 8, for agreeing; with the
s in putting out bills, as it is
hich seems to resemble tlie
ling, mentioned in our case.
out were aguinst the abuses
0 were a great and numerous
10 by these bills took them-
ilized and slandered. [Pryn's
I, fo). 401, at large.]
ment was risen, this Richard
e had so done in parliament,
found guilty in the Stannary
nned to forfeit 40/. (a mode-
as for this imprisoned in a
castle, and fed with bread
anient met again, he peti-
ent for remedy, and that the
ainst him and the executions
id ; which was done accord-
rliament. [4 H. 8, c. 8.].
ther enacted. That all suits,
?innations, executions, fines,
uislinients, passed or had, or
issed or had, upon the said
!ry other person, that was in
thus far it is k private and
the reason of this, and the
r* to all like cases ; but then
< or that of anv parliament
e ;' for any bihj speaking,
iring of any matter concern-
, to he commune<l or treated
large and general words) be
f none effect. And it goes
i that any person vexed, or
ivise charged for any cause,
[ have an action of the case,
on so vexing contrary to this
ver treble damages and costs.^
action given against one, for
> in a course of justice. But
uing in an inferior court that
11 in the matter. This act
isdiction in such parliament
ler courts. 1 know that in
1 Ilollis (afterwards the lord
n and others, 3 Car. 1, the
iulted upon some questions
That that act of 8trode*s,
ict, and extended to Strode
)t it was a particular act in a
ad in that part extended to
s meant that no part of that
law, then 1 must crave leave
Hr opinion was extrajudicial ;
upon their being consulted
•tts pro|KKinded to them, and
that weight. And I must
appeal to the very words of
D J to any man of reason and
if reaiOD aright, that thall
read them; and I must oflfer tome reasons
against their opinion, and cite some good au-
t4iority in that point, and thbn' leave it to this
court to judge of it.
The words and persons, and time mentioned
in the latter part of that act, are general. It
speaks, indeed, first of Strode iu particular ;
but then it hath these words * every otiier per-
* son.' It mentions that parliament in parti-
cular ; but then it proceeds to s|>eak of *' any
* parliament that thereafter shall be.' Tbeu
the things also are general that the act extendi
to, not only to indemnity Strode for what he
had said, or done in paruameiit ; but then tlie
indemnity extends to every other person, *• for
* any bill, speaking, reasoning, or declaring of
* anv matter concerning the |iarliament.'
llie words of the royal assent to this bill, are
such as are constantly used only to general
acta, Tiz. * Le Roy veut ;' whereas to a parti-
cular act, the royal answer is, ' Soit drou foit
* al parties.'
And this act of 4 H. 8, is enrolled as general
acts use to be. But a private or particular act
is always filed, but never enrolled; for this
latter distinction we shall find it in the case 32
H. 0, fbl. 17, 18, fur authority in this questiou,
sir E. C. in his 4th lost. fol. 19, holds this act
of 4 H. 8, in the latter part of it to be a general
act.
ft is indeed commonly said * Boni indicia est
' ampliare jurisdictionem.' But I take that to
be better advice which was given by the lord
chancellor, (sir Francis Bacon,) to Mr. justice
Hutton, upon the swearing him one of the
judges of the court of Common Pleas ; that he
would take care to contain the jurisdiction of
the court within the ancient mere-stones with-
out removing the mark.
I find but one resolution in all otir books,
that I can meet with, that seems to make
a^nst us in this point, and niaiutains a juri^
diction in this court, for a misdemeanor, or con-
spiracy sup|MMed to be done by some particular
members ot the House of Commons, in the
House in time of parliament. It is reported by
Mr. justice Croke, in his Reports of the time of
king Charles, fol. 181 ; but it is more fully re-
ported in a late book, entitled Memorials of the
English affairs, set out by a learned lawyer,
and the son of a judge ; and it is the case that
I lightly touched upon but notv, that of Mr.
Hullis, Sclden, &c.
The offence charged upon Mr. Denzill Hollis
(who was afterwards the lord Hollis,) Mr. Sel-
den, sir John Elliott, sir John Hobartanddivera
ether parliament men, was for a force used upon
the then Speaker, sir John Finch (bflerwards lord
keeper) in keening him in the Sneaker's Chair
against bis will, when he would have lefl it ;
and pressing him to put a question, which the
kieg had forbidden him to put. For this sup-
posed offence, aAer the parliament was dis-
solved, these parliament' men were first con-
vened before the council, where they refused to
answer the charge, it being for matters done im
parliament.
1*31]
7 WILLIAM IIL Proceedingi agmst Sir Wm. WiUiams, [1432
Then the jud^^es hail questions propounded , they tried the coiucil and the Sur-chai^bcr
to them, to ^hicli they gave their resolutions, , first.]
that for thinfirn done not in a parliamentary { The lord chancellor Bacon in hi« proToind
vay, a parliament- man may be punished after ' book of the adfanceroent of learning, didibt
the parliament is ended, if be be not punished ' all precedents that taste of the tiroes ; and id<
is parliament ; otherwise as just. Croke said, vises that precedents should be derived fruB
* There would be a failure of justice ; but, that
regularly, be cannot be compelled out of |Ar-
liament to answer things done in a iiarliament
in a parliamentary course.'
This ansM er Heems to be very oracular, for it
resolves that a parliament- man shall not answer j
good and moderate times.
The only reason that I find eiveo for thit
procee<ling in the case of Denzill Holli^ isiHit
given by Mr. just. Cmke, vix That other-
wise there woulit be a failure of justice.
This reason must be |f rounded either upon
opinion that parliaments will be partial in i
of their own members-
As to the first of tlieae (the long interrali
between parliameols,) this under favour ought
to lie no reason, especially to come from •
: judge's mouth, (I have a great hoooor fbrlfcs
memory of that reverend judge) who nnul
nceibi know, and ought to assert it, that bjr die
, law parliamenis ought to be very frrqueot,n4
judges oup^ht to take part with the hiw, sad ID
\ maintain if.
Before the conquest (aa it is untnilv caflei)
\ by the law, parliameots were to be held twice a
vear, as appears by king £dgar's laws, c. 5, in
Lamb, de prisds, &c.
And tho Mirror of Justice, c. 1, sect. S. idk
fur things done in parliament in a parliamentary ' the infrequency of parliaments, or npoo aa
course. If it be tlone in a parhamentary • ' •
course, what occasion can there be to answer
for it ? But who liliall judge what is a parlia-
n^entary coursi>, hut a parliameut ? Not juiiges
of the common law y for the parliamentary
course differs from the rules u^ the common
law. But they refusing to answer, at the
conncil board, ucrc couioiitled close prisoners
to the Tower.*
Aller this sir Robert Heath, the king*s at-
torney, preferred an information in the Slar-
chamber against them, that uns not proceeded
in. The lord keeper was under difficulties
about it, says the author. The judtresof the
Kiu{;'s- bench wore to consult with tl)e rest of
the judge's in granting a Habeas Corpus for
hailing the piiMim-rs. The rest of the judges
yyoiiUl hear aiv. "uteiits, so it was put uA\ and
delayed, (as our author reports it.) At last an
iiifonnatiou was exhibited against them in the
Kin^'s-bcncb. The dt tendunts pleaded to the
jurisiliction of thort)urt ; tli»-ir \Avd was over-
rultil, and tlioy n I'u.sliii; to |il*-a(l o\tr, ju.'lg-
jiKhtuas tnltrcd by ' uihil dicii,' and they
iiiM <l and iiiipri^'orivd"
Mr. just. C'niK,', :.t ISip latter fii-l of those
litporls, iiivt s thiv lii. ti-.i-r u«'( otmt ofihrit case,
ti.:*t alivrwards in ihc ii;.iha!:,int 17 Car. i,
1 1 ivas rtsoiMil iiv ihc Ii( ns.- ol' riMnmosis,
t.ii.t tl'.Oii' paiiian»rnl-M)cn siiwuld liawarc-
t ^-nipon^L* for ilicir ilaiiiams suslainti! for the
soi»i(?es to ilu' t:o:innonv\caitli in llu* pa;lia-
ii:eijt, :\ Car. I. I fa jmL'-e hatli tiuMi^^hi fit to
lirport ll;is, it uiay l)r as lit for mo to lueniion
it. I take that to \u: tin; first prt-i td( nt or iv-
feoltition jjivcn in any cast fur \»liat v,as done \n
parliainoiit, a-.i'l it sm-.M aloin- ; I liavo heard
of n«>n<' .^iiirc ;hat n»iihur. It smns to l>i- lii-
ru;ll\ a:,'ainit I'.jo (.revision made hy it ; it is
jK*;.rly within ihi- Minity and reason of it,
.'>tiodL\s act. 1 uish 1 couhl not say that even
ihoac tinus of ;; lar. 1, utTi- not lull of trou-
ble. It appi'ars nnuh by the (hHirulty the
jn«l;;(v; s(Mnnnl to he at in the pr()ivi:di:«Vs of
that caso ; iliit. ni tract'* inuih fioni that ve-
Jifialion, tlial ui!)<'r\u>.<« i.s justly due to a n;Mi-
Intion s.i sdlii.i.i as iliaiufall the ju.lyt-s. [The
lii"ioh!tion of th« Cninnioiis in Tieuinnard's
Case i>> c;;!)<.<l llu- jnil^rn,,.,,! of (ju; mcist hij4li
court of [Kiiliannnt. ll ii had Inen clear
that the Jviiir's.i^jjmi, ^.^,„|,| 1,,^^^. finished
it, thiy would have lu'irun with it there, but
* Sec Vol.
y, i>. 2Ji, of thib Collection.
us. That king Alfred ordained fo%a penfftait
usage, that twice in the year, 7ano if ntol
were) oftener, the seniors or earls sbouU aaen-
ble themselves at London to speak their mio^
And it is reckoned among the abusioos (u
they are there termed) of the common iiw;
That whereas parliaments ought to he twicen
the }ear for the salvation of ibe souls ef trtv
. pasaers (and at London too) that they arc ilterr
hut vury seldom, and at the pleasurt' u! lU
kin;;:, f^»r subsidies and collections of trt-a^arc.
! Ai.d by the statute of 4 E. 3, c. 14. piiiu*
. mental oujrht to be once a year, and ofi«>nf.r ,;
need Im). 1 hare heard a civilian in the H>'>u><
of Commons ji,nvc this consn uciiun to ihat siu.t
act, lUitt the words (if net-d be) should rrtfr i«
the parliaments being (once a year) as ut.iu
to the words (aud ottuiei) an J 1 never Hi-aM
that any man was of that o|iiniun but hniiH:!;
but I remember he himself laughed whtf:iii«
bp(»ke it, but he was more laughed at tor thit
ridiculous exposition. And should that»cQ!«
he put upon it, it would make tlie latr a tcnr
ridicnIouK thing indeed, tor then the ^hort of i(
would b«* this: Tlut we should hare a {'urt^Jk-
ment when there is iieL'd.
But to lefute that fancy, there is uL<ttb»
statute of the same kinirV tune, ndniel\ . 60 £.
:t, c. 10, which says. That for re<lrfss i»t tlnefi
mischiets and grit vances, wbich daii^ hap|Nti,
it is accorded that a parliameui sli.ill \ic hol<Ma
every year, without auy sueh reairivtiou \d
need be.)
And by the act of lo Car. 2, c. I. these sell
are declarcil to Ih; in force. And tiuihrr, nil
declared and enacted. Thai tlie U^iUimg of psf-
liaiiicnts shall not be discoutinucU above toM
I yeorti at the most.
I 2
I4S33 Jir publisUng DangerfiebPt NamUhe. A. D. I695>
[1434
Notr how caD aoy man say in defiance of
■heie lavrs, That there caii be any lont^diacon-
•BBnance of parliaments P His now majesty has
Wen pleased graciously to declare his reaoln-
lion oAen to meet his people in parliaments,
and in the word of a king Uiero is power. Nay,
we ba?e the kiog's oath for it, for he is sworn
to observe the law ; and * eadem prsesumitur
* esse mens regis qu« legis ;' and it is an high
presumption for any man to think, or say other-
wise.
For that other ground of that reason giren
Ij Mr. justice Croke, ?iz. That there would be
i failure of justice, if offeoces committed in
Cliament were not punishable in the King's-
ch ; namely, because parliaments will be
partial in cases of iheir own members. This
flarries with it a very high reflection npon that
gicst and solemn nsserobly, to enteruin a
fbou^ht so mean, and so dishonourable of the
iapreme court of the nation, that the court
iȣicb is to correct the errors of all other
iourtay and ia the last resort of the nation, that
hmy abould be guilty of ii\justice and |>ar-
iality. No man that is a lover of his coun-
ry, or a friend to his own true and honest in-
erat, will harbour a dishonourable thought
»f that great assembly.
I am apter to think, that the reporter of that
iaae did mistake, when he charged that worthy
kod reverend judge, Mr. just. Croke, with the
afltfriag of that for a reason. I find the moot
^reread of our judges speak iug with the
giaalMt reverence of that supreme court. Be-
sidcSy the learned lord chief justice air Edw.
Vwkmf who often expresses his ^reat veneration
(or tbcm, hear what the chief just. Brook, and
iiMl. Maunden say of that assembly, in IMowd.
Comment, in the case of Hill and Grange, fbl.
175« a. towards the lower end of that folio,
* Injustice* (say they) * may not be presumed of
■ a parlument.' Ana in tlic earl ot Leieester's
case, in the same comment, fol. 398, towards
the end of the folioy * The parliament is a court
* of very high honour and justice, of which no
* man ought to imagine a thing dishonourable.'
1 do af^ree, that an oflfence committed in par-
liament, IS a very high offence ; but the higher
it is, the more jiroper it is fur their judit^ature ;
and that court is armed with a |>ow«r to iNinish
the highest oflences, and the highest ofienders.
But to lake it out of their hands, and to make
it determiiuible in any other court, is a dispu-
rageroeoi to that grave and supreme court. We
easily agree that a purliaiiieat may err, for ihey
are not intalUble; but the law hath provided a
remedy against tbooe ernirs, and a way tti re-
form I hem. A subsequent parKament may re-
form the tTforsof a preceding parliament, as 1
have proved by several auilioriiiea. But to say
Ihey u ill be partial or unjuKt, or corrupt, or fto
any iliiitg out of malice, is to raise a scandal
upun the whole nation, whose representative
they arc.
1 will make no difficulty to affirm. That if
aay udcnce whatever be committed in the par-
&imcut by any partiuiUr ncmhen, (at this
was accounted a force or riot in the case of
Dencill Hollis and Selden, and others commit-
ted upon the Spraker) it is an high infringe*
mentofthe right and privilege of parliamnity
for any person or court to take the least notice
of it, till the House itself either has puniahed
the o^der, or referred them to a due or pn^
per course of punishment. To do otherwise,
would be to make the highest court an offender,
and to charge them with injustice.
Nay, their right and privilege so far extends,
that not only vvbat ia done in the very House
sitting the parliament, bnt whatever is done re-
lating to them, or in pursuance of their order,
during the parliament, and sitting the parlia-
ment, is no where else to be punished, but bv
themselves or a succeeding parliament, al-
though done out of the House, as in the case of
Ferrers.
If any shall imagine, as Mr. Prvn does, and
others, that of later times the parfiament have
encroached more imwer than anciently be-
longed to them, 1 liave already answered this
objecAioD, by shewing how large a power
they exercised of old : And see what in
further mentioned in Lamb. Archiou 57, via.
That king H. 3, was told by his Lords sinritual
and temporal, that of ancient time the creating
and deposing of all the judges and great officers
belonged to the parliament.
1 du not deny, but some sort of ordera by
them made, are no k)nger in force than while
the parliamrnt sits ; but then, what is done
after the parliament is risen, is not to be said to
be done by their onler, for then it ceases to be
their order: This must be understood of mat-
ters executory, not as to things executed by
their order during pariiaiiient.
Uuwerer, this case of l>eusill Hollis cornea
not home to our present case, but it is wonder-
fully short of it : This was an offence chained
only upon some particular members ; and it
cannot be denied, but |>articuUr persona, eveo
in the |>arliaiiient, may misdemean themselves,
and they are to be punished by the parliaUMDt,
but no where else-
But in our case, that which makes the of*
fence, and fur which the information is brought
by the king's attorney, is what is done by tba
whole U(»use of CommiMis, and by virtue of
thi-ir express order. Although, as 1 hsve al-
ready olMerved, the inf«Nrmatioii itself does not
expressly own it, yet tlie demurrer tu the de-
fendant's plea (which sets it all forth) does roost
plainly avow it. Ami this I am sure is without
any ooliiur of prei*t:deut, and never waa at^
tempted till this time.
If any man will extenuate or justify this way
of proivuding, by sayiiiif, that this was noi lor
any thing done in the ilo«ise, but a matter dcNie
out of the House ; vis tlie printiui; and puh-
hsliiiig was abr(»ad in the printui^-lioiise. ai:d in
tbe streets, and spreading them abn»ail ilirou«rb-
out the kingfkNii : yet this nill nf»t saUe i , lor
the d<!fri>daiit iiid Mhatliediit as 8|N*aker and
not in his pnvaie «*aparitv. And it wus done
by order of the whole iiuuie and aUting ite
7 WILLIAM IIL
r|Rif!laiit€fkt i BO tliat llm iofornnilHia itte^t (li-
thmr fnwrr mnd aetiiig<8; for 1 have
r ffriovtd^ thml wttat ibe defcD^ivt bu doo^
i uTia hts tct, Imt tikdi^pd ihf^ acting or tb« wltol^
foitsr of C&mmotti. And I hz\ e abo prored,
'tttt tbe tirr> HoiHet, at to the riflit of the
fowet iKat iliifv rliiin aiwi «»e, iv bdt one, and
kmj mre tntire" tli<iii|^h they may divide in ihe
cx^ndie of I hut ptmiT* Hn that it tA a inatler
«f the highest eoEic^Tiiment ii> tlie D&lion thai
IMmhlT run be,
lir &. Ci>kc in lib faanb TmL i^ lits Chap*
teriyf ibe Ili^li CaotI of F^rlisiuentf raieotions
two exaes only, anr| some oiher Ijej^inaltigr^ of a
ptogfCiiOmi ■guinil Ktich m absented them-
m^fm fmn fjartianieiir, and 4e|faned fnm it
wilbnut li<?€nce ; but Ih^y bad no effect, m be
altirin«« but or»ty agamsi ux limorous biiTicasesi,
(inhere lhtHy-mii« meinbef^ were iotonneil
af«iti«l) nbo ^ a J rctltfrjenffim TexatH»ni'tn,^
lubmiaeil to tities ; bat be could not Hnd tbat
«fer 1b^y pai*i any,
*rbe firat <*f tb« two t^ses, Ji that of tbe
bialtop of Wlficbesteff it is in the Vear Book
«C5 E. 3, M, 18 and 19, Fitz, H. .4br. lit.
Ckifun* plac. 161, Aod be aSSrms thai th<hse
•re ati Ibe cams thai he can fiml eo&eern-
in|f IhU mttlter, Tbe auil a^aiost the hiibop
mema by ortginal writ in the K tog* V bench ,
and ,U charges Itim nitb a trc-Riiu^ &nd
^eonteinpt in^departinj;^ from ibe ]mrl lament
wkbtrat Ibe king 'a licence.
The bishop there pleads (af the defendant
4nea in ibis case) to the jurLsdictifln of tlie
^Ofirt. ' £t diril quod si <[mH eorum' (speaking
of Ibe horda of padLanient^) *■ de[iquent er^a
* Dommum Regem in ParUamento aljqun, in
* parliamento debet corrigi et emendari, et non
* aTibi in minorl curia quam in ParUamento.
* Unde non intendit quod Domitius Rex relit in
* curia hie de hujusrnodi IraQi^re^ione et €on-
* templa faclis in ParUamento responderi.'
Note tbe plea, m to the oftcnce, m rery g:e-
semi, i>^ ^iily restrained to the oflence pf ab-
senting from the parlmmcnt, but to any trespass
«r offence in parhamenl. Si quh dtUqutrit.
And it woubt be a tittle improper to call ab- ,
«enoe from parliamcntf offence committed in |
fadiament, for it looks like tbe quite contrary t '
ut in a juet sense, any olfeoec committed by
^ memtier relatincf to the parliament, tbou{i[b
done out of the House, is iermed an offence in
parriamcnt, Ho printing any tiling by order of I
parliament^ though it be done and executed in
mnotber place, yet it may be said t*) be done by
the parliament, and in parliament^ if it be by
tbdr order, and in lime of parliametit.
We may note further^ tuat this is a prosecti-
tJon only against one particular person^ for n
pariieular offence and tron tempt charged upon
itirn^ But in our case» the prosccuLion is sgam^t
the ¥ery SSpeaker of the parliament, and is in
^«ct a proseculron against the parliament ; for
it iJE against bim, for what he did by command
and order of parlifttneiiti and iitting tbe pariia^
And Ibou^ Hw AflofDejCSoail 7i|Mli |
fbe biau»p*« pk&, tb^ tbe 1^ m^ m k
what omrl be w^isld^ fti iKr hiibcf i^
itpof] htm and maiBtaitt^ \m Ibnner fK%. mi
ib^re jl r«!Sta ; io tkat aa «r £. Coke dbervs,
Tbal tbe bbbop^s plai M ila«id avd n fe«
titer- mteil, aj^ie^Siiie tt ^kt roiltt^B if
former cim^c 8» ilii* S^-mmf dkam m «
Ibofity pQ onrsJe*
And Ibon^ Mr. Pl»»ie» the bfryq [ital
foL I7]t to tbe like iafoms^ott p<tf tafeciiri
bim ft^d oihen, 1 mmd l Fliiip mA Mm^
pl^ded that he t«iiittiBeil eonciiH^y Imili
be^nnin^ to tbe eod ^ tbe poiia^Jiest, mi
traverse tbe •bailee, w^ben^y hre fmm Ij
Ibe fldvant^v •f ibe ptes w riniwiifaii^
I et thi« m tm totfcanty afaintf ■% Mrle«^
think fit, ' RetiuaciaTe jon pr9 if bfrateia,*
having^ so true an occaaMHi «f «1eam| lii^
self frmn that aiaiffli£Ut»ui impoiaitia « liaf
absent Irom doing^ faB4«Tty m parf ^fliiBi, •«
certa-inly i« a viry biob bmdi oftivtfi ■!
he migbt be immtWi of lyia^ mm§m A wi
therefore thmi^il best U>' ti««tt» k to ck*^
bis tepulatioii in ibat poiiit; y«t J miiii c^*'
fcsi I shouM dflf^r bsve iilriMi it, a*f ■■
there any fartber prcweeiitiiMi i^iiiil IM,
1 will mention but cine moai tsedkttn^
morer and< tl is a reeord out of Vba VMbp^'
Eotis, W E. 3, Hum* 9, air Riftm C«^
Ahfidgmettl, and iritb Umt I wiU coMMt. I
take it to he very pertinent, and 1 ain nitii
Terv seftsooablel
Amtmg llie petitiooa of tbe Cdmnao— , tigil
They pray the king*, that be wiE( retjaiMii
archbishop and all other oftlie rJc^nrk, *'>W*f
for the peace and good i^ovenimeiit el ibe lai
And for the kiog^'s ^ood will towtnb *i
Com moos.
The kitig^s an«wer^ is.
The same prayetb tbe kin^.
And I wish With &U my heart, it wtre ftt
Com moo - Pray er ,
I have but orte prayer more to makiv ■!
that is, that tbia court will aJloiv tht^rf^
dant% plea.
This Case is reported in S Shower, 4TK
Comberbach, 18. The fol lowing is Sbaw'i
report of it ;
Tbe l&mm v, Wtixuiis.
** Information for pnbtts^bing an ia&DM
libel, called * DangerBeld'a Narratite/
«' The defendant pleads, that by the bit ai^^
cnitoms of En Eland » the Speakers of the BfNi
of Commons naTc aigned and piibli&b«d Ifcl
acts of tbe House, &c.
**■ Mr. Attorney General deoourf.
" Mr. Jtme$ was begin oing in irgoi^ lil
took some exeeptioas^ as that hv dtn^
the libel in tbe intbritiatioii and thai ia
to be the same*
'' X. C. J, We will not, to roeb
debftlie, tbe tono^kif of loeli la sHi
ST] for publishing D&ngerfiekPs Narrative,
let us bear what they have to \
A. D. 1695.
[1438
ant plea
rit
«« Bf p. FolUxfen began, « The court of par-
iament, &c.'
«• i. C. J. Court do you call it? Can the
ier of the House of Commons iustify the
mdalous, infamous, flagitious libel.
•' Blr. PoUex/en then said, * 1 ha?e no more
D say, 5ec.'
<* JL. C. J, Let judgment be entered for the
" And afterwards Mr. Williams was fined
,O00/., and upon payment of 8,000/. of it,
tisfaction was acknowledged upou record."
He also gives, the following note of the Case
lord Peterborough against Williams :
LOBO PeTERBOROUGiI V, WiLUAMS.
** Scandalum Magnatum on the statute of
Raeb. S, c. 6, for publishing * Dangerficld*s
Narrative :' the defendant |)leads the same plea
he did to the information in the king's name;
it a demurrer being thereto.
<« It was argued, that the declaration was
, and that there was nothing' of slander in it
Mm the plaintiff, for they had averred none,
il enly set forth the whole pamphlet with an
n quo qnidem libello diversa falsa et scanda-
oea oontinentur,' and mention r^one in parti-
ilar, which Mr. Pollexfen uiged to be naught.
** And the Court doubted it.
** But the ^neral opinion of the Bar was,
mt toeh their doubt was not on the point, but
I bvoair to the defendant^ to gain him time for
eoBipromise; (it being thought that he had
lid saffideot before for that offence) for the
Mpner of declaring seems goo<l, and if upon
le whole it ap|»ear to the court there was any
latter scandalous, the action lies, if otherwise
ot.
** And it was afterwards agreed, as I was
nformed.
'* Note, In Scandalum Magnatum no costs
te to be given the plaintiff, though a verdict
« for him."
As to sir Robert Sawyer, see the Case of
ir Thomas Armstrong, vol. 10, p. 105, of this
Collection, and particularly the passage cited
loin Mr. Hargrave, p. 117.
Uder Mr. Williams Wynn's permission, I in-
sert from the Appendix to his " Argument
lipon the Jurisdiction of the House of Com-
inoiis," the following passage :
*' The Demurrer beine allowed by the court,
|ilea in bar was pleaded by Mr. Williams,
}«riy similar to the plea to the jurisdiction,
OS over-ruled ; but this last plea was after-
^rda withdrawn, and iudgment went by de-
uh. A fine of 10,000/. was imposed by the
Hnt of King's- bench ; but James 2, after-
tudM remitted 9|000(. of it^ «DiiC»ing this ito-
g^lar condition, that nothing should be giveni
to any of the courtiers who bad been employed
to solicit this abatement.
*' Upon examining the notes and papers of
sir William Williams, I find that the above wap
not the only prosecution that he was exposed
to, for the aischar^ of his duty as Speaker.
*' The same mformatinn of Daoeperfield^.
which accused the duke of York, also con-
tained charges against the earl of Peterborongb,
and that nobleman commenced an action for
Scandalum Magnatum, against Mr. Williams^
for licensing the publication of the information ;
and also seven others against the printers and
booksellers who had printed and sold it*
'< To this action Mr. Williams put in a plea,
similar to that in the former case ; but the dis-
position of the court of King's-bench had al-
ready been found so hostile to the allowance of
any privilege of parliament, that it was thought
most advisable to compromise the matter, and.
James 2, who hail been gratified by the early
payment of Mr. Williams's fine of 8,000/., in-
terfered to induce lord Peterborough to accept
150/., which was paid to him in satisfiustion,
and a non* proi. was entered on the roll.
« Much surprise has been expressed at the
failure of three different bills, which were
brought into parliament in 1689, 1690, and'
1695, to reverse the judgment given in the
King's-bench afamst Mr. Williams. It has
been seen, that the Bill of Rights refers to this
case, 1^ one of the offences by which James 2
had forfeited the crown, and the House of
Commons had expressly declared the judg-.
ment to be * illegal, and subversive of the free-
' dom of parliament' (July 12, 1689.) It
does, therefore appear inconsistent, that this
very judgment should have been suffered to
continue unreversed, and the illegal fine whicl^
had been imposed on the Speaker, unrepaid.
'< To account for this, it is necessary to look
at the circumstances of the times, and the con-
duct then adopted by parliament, in similar in-
stances.
** Among the difficulties which pressed upon
the new government, after the Revolution, that
of raising money was the principal, and parlia*
ment, disgusted with the profusion of king
William-s grants to his favorites, was led into
^ the opiiosite extreme of parsimony, even in in-
stances where the national justice called for a
more liberal proceeding.
** We shall find, in consequence, tliat there
was no disposition to make pecuniary compen-
satioo to any of those who had suffered ille-
gally during former reigns, unless a fund, in-
dependent of the public purse, could be foun4
for that purpose.
*' With a view to supply this, a bill for the
attainder and confiscation of the estates of the
deceased chancellor, lord Jefferies, was brought
in, and an intention was eotertained of fining,
^ ** It appears, tliat in these different actions,
lord Peteroorough actually recovered and re-
ceived above 6,700/. besides costs."
mQ T^vnLUE&HUI. 3ft wiwffi|iVipii » IBfc
fWxiOfjB, m op[*<>ailiorj to cFery bill tur ihe rt-
TersaL of i^roccediDf^Ri which were likely to
eniail peciintary ei)ii]jj^tsation to the fiartj
affri€ved ; and this eoitiUmation was filrong-
ca<iug1i (particularly in ttie House of Lnrds) to
throiv oyl«¥ery liilf of tlii* tialure. Tbe dl<
tcyndOTs of Ru&sdt attd Bydti^y mett imleed
rer«rMd^ becayse do nppUcutioQ could, m those
iaata^tcc^i be ma,4e for cotn pen ea lion ; bui the
bitt for reversing the equally illcgul oollawTy
fif sir Tboraas AririE^rciii^, containf rJ » cSaose^
iJiri*cliti(^ that the aum of 5^000/, of wiiich his
hiiiiily tia^l heei) deprived^ sboulil be repaid to
them out of the eb'tates oi' his judg^es -and pro-
secutors, and wasi lost . A bi ) I pasEteil t h e H o use
of Conitnoti^, tor cbarginif the heirs of lord
Jeffenes with the repayment of 14 J6G^. which
ht bad extorteil from Mr. FH deaiix, &;» tlie
C4MidltiofT of pardon for a cbui^e of tres^on,
*nd laid out in the jmi<?hase »f an estate, yet
•v-tn litis waa thrown f>ut by lie Lords,
**■ Vmxi the eame grounds of objeetioo, it la
jirDb«h[e that the bills for the revenatof the
|ildyfuient aci^B||HM^4|[i|liamB were tost.
ihai iin^iii^?Sjmrm^iniM u wtt
W. WliliaM ky the B«ib<fWff,toi tSmma^
Mr «l8d tita iiMMWHioB' ifliiMr bill, mr
; mumm
HobeitWM,iB coatcyieitoiii neanl a^tosttlie
bill, both ID person aod by couttael, and tboogb
pMed by the House of Commons, m 1095, it
failed in the Hoase of Lords.
*< On this occasion, sir William Williams
made a speech in Tindication of himself, tbe
notes of wbieh still remain among his papers.
V I trust that I am not misled by the par-
tiality of a descendant, in tbinkin<|^ the histo-
rical matter, which this defence contains, suffi-
ciently curious to justify me in giving an ex-
tract from it.
*< After stating proofiB of the diflTerenf facts
in bis case, viz. The order of tbe House, 9th
Norember 1600, that the Informations of Dan-
gerfield and others should be perused and
signed by the Speaker, and printed by such
pnnters as be should nominate, and that Dan-
gerfieldthonM ba?e the benefit resulting there-
from ; tbe printing of tbe Information during
the sifting of parliament^ Dangerfleld's ac-
knowledgvient of his baving receired the emo-
lument; tbe prosecution commenced by sir
Robert Sawyer, and tbe pleadings therein al-
feady mentioned. Tbe notes proceed thus :
** * Aspersion — ^That I was in confederacy
* with king Charles the second, to discover the
* secrets of the Commons, when in the cbabe,
* and approved by bim iipi.>a aneh tenii8| ton-
* certed bv nr Ricbaitl Mason.
^« « 1. Mr. FraocisChariolODirffliinifeliiyw
«I wasflrttthouglftvpoBte^ «•%
* days beibri themeMb^
* October IWIL -^^'^
" * I was a Strang to it i 1ia Ini
the first notice uf it, and my answtf f
*^ *■ Thao proposed by toy lord Ram
iittaoimoti^ly t^lected hf the ilinae. «
'* * Au J ticit dav approted bv tlic Li
'' * U, EaH of Majccteandd wiO tesiJi
I reru^ed ihc ci^eife jasticefchip of ^
hecauj^ I woul^l not be thought la
tbiii]^ ihat might seeoi to incluoo Wf
interest of the Ccwn^uns in thaitnf
*' * 3. J nevev bid any place m Ijik
1 1. *B time. I ii^ei- w tight aay. I
seek this. I do appeal to alHhc mcl
ewr I menp^onad this to any peraon*
** ' 4. 1 was hut twice with L'g Ch
second : the 3d time I refused io ^ 1
" ' 5. My reword is my jifrtiseoi^
a Ad two years dei-^uce of the €ocd^«b
** * It ii my glory 1 have left a rtmi
rlj^bts and fieedome of ^rlm^t«.
proceeding posierity will juatif3*e me.
*^ * 1 look upon this as the glory ao4
of myst4fif and family,
*' *■ Aud submit it lo the wisdome
House) to dispone of it tLS they >ha
fitt.
" * I have pleaded a plea, wbtdi wH
ilselfe to iifist^rity,
** ■ I havel^eeucondefuoed ill<^TIy,
p*J 8,000^* in ye cjrowo, uujustly ag^
*** I have paid tt for the Com*«)S
land.
'< ' If t bad bettayod dT, or «■
Corn'ons ;
*^ * if I had f ubmitted to the larortm
** * If I bad tamdy yielded and cod
*^ ' It had been better uilh my estati
" ' But worse with raj reputa^'iun.
" ' I value much more your rights
own honor, than f du my estate.
'* ^ Tbe money I^may recover agiii
want ;
•* * Tlie dishonor bad l^een irrecsva
" * It is |»*iit of luy honor^
'* * Thut I am thus eifM>sed by mj
tutors, with the s<ime violenct% wilbll
loole^^, with the same assurance;
** * And if they had the aanne judfis
expect the same judgi«i*t * *
• * • ^ ^ * Ittanoli
ness now to recriminate. I t^ill not
sir Rob't Sawyer, in hia mothod oTdl
himsdfeby recrimin^n,
** * Conaiaer, if ye 3 tbiaga olficw
were tru# ;
'^ * 1. That ye information wa« fk
' my order, after ye riseinrr of yepaift
'' ' 9. If D^ngerfidd baa not bad fli
' of this inform *n :
^' ^ How (dots) ibis ariile sir IWU
' upon this record of the inferm*' *"
' and demurr on his p*t, and de<*^'
' ^iren a^*t ye phvi ledge and
^ dome of proct'edini; in parfd
"*Letf»ebctbr:yi^--* tl
.•^
Ijie41]] Proceedings againti the Earl ofMO/hrt. A. D. 169^.
[1442
i;^^^* * This is to jastifye ye proceediiigf and
^^jad^tn't of ye court of KiDgVbench ag't ye
^^lu^ons by a side wind.
B «« « *i*||ig |g lo ggy^ ye Com'ons conid not
s ^H^ler printing'y and the speaker ought not to
•^bey tneiD or their erder.
K J^ * Thiif is to bring the privtiedffe of ye
C«Hn*ons into question in W^V-hall.
« ^ ** *' And to make those courts judge of the
«^ l^viledgesof parrmt, and consequently of
^^ ^ari'rot, and to sett bounds to their prooeed-
^« **>g« and debates, and to make Westm'r-hail
^aperior to parl'mts." "
iVoceedings for the reversal of the judgment
' It air William Williams were had so early
the Revolution as July 10, 1G89. See
Commons' Journals of that date. Af\er that
period, farther proceedinsfs were had at inter-
vals until the Slst of February 1695-0, on
which day the House of Lords read tht> s>rcoiid
time a bill which had been sent up from the
C'ommons, intitled, " An Act for reversini^ a
Judgment given against sir William VViiliariiK,
for what be did as Speaker of the House of
( -omroons, and for asserting the Rights and
Freedom of Parliament." And
Die Veneris, SI Februarii.
Ordered, That the said bill be committcti to
a Committee of the whole House, un Thurs-
day the 27tli day of this instant February, at
ten o'clock in the forenoon.
Afler which I do not find any fiirther entry
resjiecting it.
ill. Proceedings against John Earl of IMklfout, John Earl of
MiDDLETouNi Ricliard Earl of Lauderdale, and several
others, for Treason and Rebellion, inticing the French King
to invade their Majesties Dominions, and remaining subject
to the French King : 6 William & Mahy, a.d. 1694. [Now
first printed from the Records of Justiciary at Edinburgh.]
Coiu JcsncuRi.s, 9. D. N. RejOfiset Rcginae,
Tenta in Pnctorio Burcri de Edinburgh,
▼igesimo tertio die mensis Julii millesimo
sexcentesimo nonagesiino quarto, per
honorabiles viros, Adamum Cockluim,
de Ormistoune, Justiciariee Clericum, Do-
ninum Colinuni Campbell de Aberuchill,
Hagistrum Davidem Hume de Crocerigf,
Dominum Joanncm Lauder de Fountan-
faall, Magistrnm Archilialdum Ho|)e de
Rankeillor, et Mazistrum Jacobum Ful-
conar de Phesdo, Commissionarios Justi-
ciarii diet. S. D. N. Regis et Re^na*.
Curia legitime affirmata.
X HE said day their majeatie's advocate pro-
docedane Act of Councill, dated the 19lh in-
stant, apuroveing his causing raise and exeiuite
letters of treasone befor the snids birds against
the persones mentioned in the fulluwing Act
of adjournall, as being in France or liavfing
beiii tbere contrair to the late act of paiiiu-
ment,* and as corres|Hinders with tlie late
* K. William and U. Mary's first parlia-
ment, April 18, 1693. Chap. 8, Sess. 4.
Act againsi corresponding with France.
«* Our sovereign lord and lady, the king and
aoeen's majesties, considering that ihi;* king-
dom being now in a state of war with the
French king, is in great and imminent danger
from correspondencies with persons in bii do-
\()L. XIIJ.
king James, and g^ranted warrand to the said
lord advocat to insist in and follow forth the
said proces agniusl the saids liaill persones.
Their mi^cstii^'s advocat produced the cri-
minal! letters of treasone dew ly execute against
them, upon threescore dayes wairiiing, by a
pursevaut and trumpet, with their majesties
minions : Do hereby, with ad\ ice and consent
of his csUitrs of pjuliamcnt, statute and ordain.
That none of the subjcTls within this kingilom,
without cxprtss ha\o from their majesties, or
their privy council, presume to go to the king-
dom of France, or any of the dominions sub-
ji'Ct to the Fn-nrli king, aHer the first day of
'Jm»* next to couio ; or being alrojidy in tho
said kingd«)ui of France or cbuntriis foresaid,
|irtsuu»«r to stay or abide therein alU'rthc first
day of August next, without express leave
from their majesiit.s or their privy council,
under the pain'of treason. And further, it is
statute and ordaineil, that none of the subject*
of this kingdom pi-esume without authority
foresaid, to correspond, keep intelligence, or
haw irommerceby letters, with any nerson re-
sidini; within the'said kingdom, or dominions,
after the date hereof, under the pain of b<'ing
punLshetl as corresponders whh declared trai-
tors, and that this act continue and stand in
three during this war, and no longer : As also
that it he without any prejudice of any former
acts made against treason or treasonable cor-
respondences, or the nunishment of such as
have already incurred tlie pains thereof."
4Z
Tboinas Hav, soroetyme clerk to Ihe pri?y
couiictil of i^Miland ; Mr. Charles Kiiinaird,
brother to the lonl Kianaird ; David Lindsay,
secretary to tlie eurle of Melifort ; coUoDell
Thomas Buclian^ sointyrne desigm-d lieut.
ffenerall Bucliaii ; ivllonell Cuonon, »ir
Charles Caimey, oclierwayes desi^j^iied major
genenill Cainiey ; captain Audrew Rutherford,
cumtyme ca^ttain in Dumbartounes re|^iiuent ;
cnptaiu Pairiek Auchmouiie, captain
Deans, captain 31* Adams captain
Authven, leivtenuiit ; fsaack Threrald, leiv-
tenant George ISkeeiii ; leiv tenant John Fur-
roster, leivienaiit Auclimoutie, ensi^iie
Alexander f niie.> ; leivtcnunta Daniel and Jotio
Btihnes, eusii;ne William Sioran ; ensign Ro-
bert Maxwell, Icivtenant George Demjiseed,
ensign William Ramsfty, somtyme in Ilml^es
regiment; ensign Alexander l^uidilands,
soinetyme in Wauchop's regiment; ensigne
Laurence Drummond, of — ; ensign Wil>
liain Mcinzies, brother to leiFten.mt Pa-
trick Auchmouty , somtyme in the Scots guards;
captain Hubert Somervill, captain William
l)avidson, teivtennant William Maine, leivten-
naut 8amueli W by urahame,leivtennant James
Henry snne, leiTtenaut Samuell Maxwell, leiv-
tennaiit William Maxwell, ensigne Robert Su-
therland, ciisigiic Alexander Sinclair, ensigne
Charles ratoiiu, ensigne John Riddell, leivten-
naut John Bell, somtyme in D'Offerrall's regi-
ment ; ensigne William Jnnes, in Dt)fferrdl't
regiment ; ensigne William Lyon, in D'Offer-
rclPs regiment; leivteniient Joseph Brodie,
William and Hugh Sntherlands, nepheus to
nipjor gencrall Sutberlaud ; Walter Nishet,
soue to Alexander Nivbot, of Craigintinuie ;
W iiliam Sm( lair, sone to dcceist Sin-
there, calletl Black A
vine, of Slapletoune ; <
being (»f tymes called
our saids lords, the sa
hour of causey there
law for the ciymes of
ty comitted be them, i
l>ein^ ingadged in a
agaiitst ibe h'rMicb i
of thereligioucaud liU
liaill tbi-Damed |>ersone
and borne sul jects ot
their uaturall duty an
moneihs of June, Juh
moaeths of the yea!
eighty nyne, upon tli
ane or other of Ibe daj
saids moneths, and i
tbird, or ane or <
the moncUis oi' Jan%«
or ane i>r other of
year 1690, 1691, 161
February, Marcb, «
treasoneably and undi
in armes and open reb
kin^ and bis forces an
jestie and his govers
oountrey, did intyse ll
forces to invade tbei
and to quarrel I and im
and autboritie, and rig
did fight, resist, and
forces warring agaim
Flanders and elsewhei
(ikonekirk, alt and nt
Ace. did aid, abait, ass
Willi, give help, re<ld,
iestipfi rnf»mtf^>< nnd 1
445] Proeetdii^i agfoM iU Emi ^Sif/brth. A. D. 1097. [1446
•MBt, asd in the Mt of ai^rnal past therupea,
ami the haill persoaei abore named and mea-
» haf« fboBd tnficitnt eniioii aa
siad IB the books of adjounudl far their ap-
Mvaooe belbra the saids lorda this day and
laee, in the hoar of caose, to have underlyen
m bw Ibrthe crymes abore nentioned, laofhll
rme of day bidden, and they nor none of them
iterand nor appearand, the kwda joiliee elerk
id commijnioners of jostieiary, therfbre, be
le mootb of James Guthrie, roaeer of court,
poerncd and adjudged the haill ibrenamed
eraooes, and ilk ane of them, to be denunoed
ir aorera^ne kird's and lady's rebells, and
■ilaincd them to be patt to the borne, and
1 their mfureable goods and gear to be
icheat and inbrought to their majesties nee, as
itiawes and fugitires frae their majesties
iwes for the crymes abo?e ^lecified, which
«■ pronnnced lor doome.
April 30, 1695.
The said day anent ane petione gi?en in to
le aaids lords be sir James Stewart, his roa-
aties adfocat, makeand mention, that where
t ane justice court liolden be the saids lords,
pon the 4dd day of July last bvpant ; John
trie of Mdfbort, John earle of Middletonne,
JtchanI earle of Lauderdale, sir Wm. Wal-
ee, of Craigie, sir Adam Blair,* of Carberrie,
id 90 others, were decfaired oullawes'mnd fu-
itires, for not compelring before the saids
rda of justiciary, for their goeing to and re-
laing within the kingdome of France, after
le 1st day of June, 1693, contrair to the eigiit
:t, iburlii sessione of his majestie's current
iriiament, and for sereral other treasonable
ynea committed be them in manner men-
in the lybell, raised against them ther-
• See his Case, toI. 13, p. 1807.
persoaeai
tioned in the said act, being by his roajestie'a
appoyntment cited or to be cited befor the es-
tatea of parliament, most of them (and all that
are cited) to underlye tlie law for the treason-
able crymes committed be them, and the rest
•9 witnesses; and his roajestie being willing
that the |iersones indyted should funtill they ha
fonnd guiltj) hare free liberty and allowance ef
defending themselves, and that neither 4hey
should be precluded from proponeing tber de-
fences, nor the witnesses to l>e citf d against
them rendered incapable, through iheir bein§^
rebells, fugitiTes, or at the home ; and that
therfor all the aaids peniones as weell pairties
as witnesses may be relaxed, ad hunc effectnm
allennarlie, that they may have personam ttandi
in judicio before the parliament, nut prejudice to
his majestic, of any casuality or b^ihte fallen
to him throw their rebellione, therfore craving
the aaids lords woiild be pleased to grant re-
hxatione to the haill persooes abore mentioned,
cited or sisted as pairties or witnesses, ad hunc
effectum^ that they may have persona ti standi in
judicio^ but prejudice to his mujestie as afursaid.
The lords comroissiniicrs of justiciary, hav-
ing considered the petitione above written ffiven
in be his majestie's advocat, they allow relaxa-
tiooe to be exped for John earle of Melibrt, and
the haill remanent persoues above mentioned
ad hunc ejfectum allennarly, that they may
have personam standi in judicio befor the |>ar-
liament, and that the persones accused may
propone ther defences, and those called as wit-
nesses may be capable to appear and depone,
but prejudice to his majestic, of any casualitj
fallen to him throw their being declared fugt«
tives, or at the home.
12. Proceedings against Kenneth Earl of Seaforth, for High
• Treason: 9 William III. a. d. 1697. [Now first printed
from the Records of Justiciary in Edinburgh.]
OBU JusncuRiA S. D. N. Regis, tenta in
Pretario Burgi de Edinburgh, decimo
quarto die roensis Junij, 1697, per hoiio-
rabiles riros, dominos Colioum Campbell
de Aberuchill, Daridem Huuie de Croce-
rig, Joanem Lauder 4le Fountainhall, et
Jacobum Falconer de Phemlo, Commis-
aionahos Justiciarii diet. S. D. N. lUgis.
Curia legitime afBrmata.
I HE said day anent the criminall adione and
lose intended, and depending befor the saids
ffds, at the instance of his majesties adrocat,
(ainst Kenneth earle of 8eatbrth, makeand
leotiotie, that where by all lawa dirine and
■mane, and by the laws and acts of parlia't of
lis kingdome and oonstantpractiqetherof, the
jOMi of tr«eoM, rebellioM and Icae majes-
ty are most strictly and sererely^ prohibit, and
particularly by the act of parliament, James
IHrst, pari, ffirst cap. 3, It is statute and or-
daine«l, that iioe man notoiirly or <»|ienly rebel!
ug't the kini^'s |M*rsonc, under the peine of lor-
feiting of life, lands, and goods, and by the act
James 2d, pari. 6tb, cap. 13, It is 'ordained
that none rebell against t!o king's (lersonc or
authority, and who sf>c makes Fick reTiel!ior.e, to
be punished aOcr thu quiiiity and '^unnlity of
sick rebellione, by the advice*^ of t»io three' es-
tates ; and if it liappens any wiihin tlio realme
o|ienly or nottonrly to rehell against the king,
or to make weir against the kiiig^s Ifidges,
ag't his forbidding, in that case they arc to be
punished fil\er the quantity of the trespass ;
and by the act James 2, par. 6th, enp. 24, It is
statute, that if any man coniiiiitt or doe treason*
against the king's pcrsone, or bis majesty, or
14473
9 WILLIAM! 1 11. Pructedings agnmsi ihe Earl of Stqf&rth.
Tf^/ts ill fctr of uarr igmiost him, or rw^lte
Any Ihat lies eomittiiled treHSorje^ or that
^«ii|»|ili«f thcQi in hetp, red or council!, or
tfifit tiviik the houses of Ihem that are cnn-
•vicft of Ireosooe, and liolJs ihem against the
king, or thftl Mulls houses of iheir own iu
furuienug of the kings reheUs, ehaU be pu-
aitUed as traytors ; ao3 by the fifth act ^ irL
first, Cha. Stl, it is deelaired, that it is and
•iiail he high treasone to the sobj^la of this
<kiiigik>cne, or any number of them more or less
-u|MNrany g^roUQil or pretext wbatsoroe?er, to
pryaeorcontinew ra arnies, tofoantauiany fiforts,
itrea^ha or gamson«s, to make peace or warr,
or to make any trooties or leagues with for<
raigne princes or states, or amon|^ themselves,
' without his majesties specioll autliority and op-
It |irohntii>ne fir^it interponed therto, &nif all their
' niajtstit-s subjects ate di^rharged to ofler uiKin
Any pretext whalsoevcr to iittero(it the doeJng
of any uf theae tilings hereat^er^ under the
paine oi treasone ; und by the 12iid act of the
Sfcohd 6e&sioue of the same ptirUnmeni* it is
statute and ordained^ That if any persone or
tiersonee shall heirattev plutt^ contryve death
and d*?htniction to tlie kings majeslie, or to dc-
fryr^j dejKwe, or suspend him from the style,
fiouour and kingly name of the imperiaK croune
l»t)t this reahue, or any other of his dommiones,
J'or to levy wiirr or take up armes against his
tl luajestier ur any eo'miuissionat by him, or shall
I inty*ie any straiigers or uliiers to invade any of
J- his majesties dominiones, tvery such persuae
"•bi'ijig leg.illy convicted, fchall be decerned, d«-
• clnred and adjudged u tjuytor, and suffer lor-
, fuuiture of ltd', laniU and goods, as in cases of
p hivi;h treasnne ; and lastly hy Uie '2nd act of the
• iir&t sesvione of this current parliament, it is
declared to be high treasonc iu any of the sub-
I jects of this kiuj^donie by wiyteiog, K^ieaking,
( 4>r any other lUdnner of way to disowae quar-
reit or impugne their majesties roy all power
^•nd authority, or right and title to the crown :
Ni X trthelesst-, tc is of *enty that the hM Kcn-
Inttlji earle of 8fafofth,shiikei|ig off all fear of
(jo<t und regaird to their ma'ljes and tliuir
taweis, l>eiug buspecti'd as diaotfected to the
Jate bnppy rtvolutionc, and therupon put under
find arrtibt at London, in the year \6%0, uniill
^Ktmerall umjur M'Kny became baill for him»
' Siil upon otie or other of the dayes or moncths
^of the A^id year breake your bail!, and nm
- away and repaired to the late king James then
iu Ireland, wadgiog \*arr against their majt-s-
\ lies, und continued there da rein g that rehel-
lione uuijll that in the end of the year 16B9»
» the said earle landed iu the I^wes, and from
i thence carne to the fiort of island Donald, be-
I longiiigf to himselfi where ho continued for ae-
► verali mopcths, keeping inLellinenc^ with gc-
I aeiall md«jor Duchan, w ho was tlien in ^rmes in
^ ©tJen rt^hi^llion ar-i their mnjestics in ihis king-
M^nie, fiomwiti>dipg a parly of about ty%e hun-
kiii^d horse, with whom ho purposed to hate
lljoyaed, at le&.st liave assistcJ, or at \e%ii have
|> if speared in at mcs with him in the /ou-said re-
Uo0e, tfor actv\uvVvAu\i^ wVwijsA isnt wwv
i]t.d I
V
as the mA earle |^tt intellifMUflf I
genendl majovB lit arch ^ then be did i
or cause coovtical , >n i
ing to the coovocat > ^ i
men in the countrtiy:» of K^ut^uil, 1
Locbelsh, and other places pertMBfO|lif
pending on hifu and lii& other ««
or depeuders, within the shyre of Rm«
where, lykeas the s'ds [lersonea and < '
alTectefi to the govern meut, did
repaire in armes to the said «Liii tt 1
and chiftain, at least tbey beiiK Uttlj
moi'e, and in a sort of a camp be vul
present with them iu artneP^oM
sisting, or otherwayes atM^iiof ibcnj
or at least with out tlietr m^estiei Vf
tbority and approbatione first tbKiatt
and particularly upon arte or othctdtl
of theraoneths of Mcirehf Apr^lei M^it^
July, August, HepUHnlier or l>
year 1(590, and att or about a aliee i
trie near to Bracid, and in ntiier pi
the laird of CotiUs housie in tlie <
the siaid earle wa*; t) -^t.^
saids rebellious c
displayed, and he vv
3ues5 of Seaforth, Jkc.
amea ffbrces, Of was •
thrcatoing destructiou to all iL^towWii
majesties goTertntienl, at lea;st bewsaiai
in manner fors i><iut their tii«M
lliori ty and a j ; x , and w hm I
of Juajor generml .«!* ivays sudden i
clian was necesaitat to retire with his bffvl
the highlands, the said earle not hauBfl
his ineu togttber to joyue with Bucbi
continued his camp with tlie forsaidi
daylie convocatingatiil increaseiiig ihef >
tier during some da^*ca that gvnctaU
M'Kay continued att fnveroaa, waitii^t
the coming up of their tuojeaties focoii i
the south, wherhy the frenerall ni»j^»rr"
ing the said carles obstinat rebeJhone, I
prebending that he mi^ht witbdraw i '
in urmes with him to the inftoctvil
lands, ami joy ne with the other rvbellstbflvi
armes, he upon the 30th day of Aogasl, 1 ''
veaira, or ihtTaboi**, gmve c^imroti
laird of ijalnagowau, and ruajnr i
ait and others, to attack with
poynted to them, the saids earlff <
Assin-Lochglun and others, nocl to <
same by fire and sword, wbicli
in^ marched to those pairts ia < '
saids commissiones, the tnbalittaals \
countreys being then tti armefi m\lh
earle, did leave anij ' whif
sioned the dissolriij , md t
that were witli ' ' >eiidl
his friends pal^
ly to those cons i... -...-..
hostility, wherewith the hrtsf
ned, ftoil being thus de-\.
t re luetics, an<] I \ywT4 I
ssrftevrliijfuheii jfiiW^auIl
Derail major, by all wktcJi ibesmid earlcii
^'Qkila.NiUl^ractioea be wis gttiity of tltcc
>J Proceedings agaimt AleMinder Pitcairne. A. D, 1697.
[1450
asone, lese majesty, seditione and riseiDg
nes against their majesties government,
St airt and pairt tberot', and tlierby he hes
red the paines of treasonc and rebellionc
lie fortaulture of life, lan«ls, and estate, and
fc and should bo punislietl t her with, to
fxample and terror of others to doe the
IB tyme cometng.
bich criaainall actioae and cause being
nd dircrso tyroes calletl, was continued
duy to day till this day, and the samyne
;- tbid day called, conipeired sir James
art, bis majesties advocat, as pursuer on
ne pairt, and jon the other pairt compeired
David Forbes advocat, and gave in ane
f councill for deserting the dyet, wheruf
;nor folloues :
Edinbun^h the 18th day of March 1697.
loi-ds of his majesties privy rouncill,
ig ro!isidere<l his majesties letter dii*ect to
of date the first day of March instant, an-
oint; and requvreing them to sett the
of Scafortli att liberty, 'who as lie is in-
?d hrs rendered himiieife prisoner to the
ioiiC at Inverness, and cast liimselfe U])on
lujoslirs mercy, upon sufficient bale to
c::ccnMy and appear when c::lled for, and
iprJs tri the lord advocat not to insist in
rriminall process against thi said earlc,
g his majesties p!easuri\ they doc hereby
order and warrnnt to the governoiir of
arrisoD effort William, and in his absence
to the next oommanduig officer tbere, to sett the
said Kenneth earle of Seafortb at liberty furth
therof, in respect be hes given l)ond and found
sufficient cautione acted in the books of his ma-
jesties privy councill, that he ^hall live peace-
ably under and with all submissiono to the pre-
sent government of his majestic king William,
and mat h^ shall not act, consult, or contry ve
any thing in prejudice thereof, nor shall not
converse, nor correspond with any rebel Is, and
that he shall appear before the saids lords of
his majesties privie councill, whensoever he
shall be called or requyred therto, under the
penalty of two thousand pounds sterling in case
he shall transgress in any pairt of the pre-
misses, and recomends to sir James Stewart
his majesties advocat, to desert the dyet in the
process of treasone presently depending at his
lordships' instance against the said earle, bi^forc
the lord jnsticc generall, lord justice clerk, and
lonis commissioners of his majesties justiciary,
and not to intent nor insist in any new process of
treasone against the said carle, untiU his ma-
jesties pleasure be funler knowen therein, the
said earle having given bond, and found cau-
tione in manner forsaid, extracted by me.
Sic Subscribitury Cib. Zcluot.
The lonls commissioners of justiciary, con-
formu to the above written act, and by consent
of his majesties advocat, deserts the dyet sim-
t»liciter againstthe earle of Seafortli,*whereupon
lis procurators asked and took instruments.
Proceedings against Mr. Alexandeu Pitcairne, a Minister
of the Church of Scotland, for Higli Treason, and disowning,
quarrelling, and impugning of his Majesty's Royal Power and
Authority, and Rights and Title to the Crown: 9 William
III. A. D. 1697. [Now first printed from the Records of
Justiciary at Edinburgh.]
\ JusTiciAnii, S. D. N. Ueofis tcntn in
I'retorio Bnrgi de Edinburgh, vigc&imo
nono die mensis Nnvembris 1697, per
lonombiles %irosl>ominosColinirin C-nmp-
M'll de Al>cru<hiil, Dnvidem Hume (k:
Urocrrig, Jor.iiiKiii l<auder de Tnun-
Ainliatl, Arrhih.-ildum ilupe de Kanketl-
or« et Jacoiairii F.ilcouardt: I'hesdo, Coin-
iiiiksitinarios Jiisticiarii diet. S. D. N.
[l*.-gi$.
Curia legittiue afiirmata.
-Iniran*
'. AUrandrr Pi(cairn, minister at South -
rlhhav, now prisoner in the Tolbuith of
!Hirgn.
{J are Indyted and accused, at the in-
t of lir JauMi titewarty bii majesties ad-
' V ocat for his hidmes interest, and by speciall
warrant of the lords of his majesties privy
I c<inncill, that where by the second act of tiM
j first session of this current parliament, intitul-
j ed Act Ht-cngnosc'ing his Majesties royall au-
' thority ;^ it is declared to be high treasone in
* Act recognising: their Mtijeityi Royal
Authority.
" The Estates of Parliament considering
that the king and queen's majesties have ac*
ceptedof the crown of this realm, tendered to
them by the meeting of the Estates in their
Claim of Rinrht, dated the J 1th day of April
last, »nd according thereto have sworn the oath
appointe<l by law to be taken by all kings and
queensof this realm, before they exerre their
regal power : therctbre the iutates of l*arlia-
145 1] 9 WILLI AM lU. Froecedii^ ^
•nj aflhe cubfects of iHk klii|fd«inie by wrjte*
jtj|f, *fieakiog* or any otb^jr fuaiiQ«i't w«y, tn
diltowruc, «jtmiT('ll| or Unpuf^e bis oiiiyesties
trtjiill (ii>Wi;i:;, or outhority, or iig^ht anil tille lo
U]ecrc»^vi>€ : N'ev€rtbek*i?tc, it i» of vertie lb at
ytiw sbakeiog otT sil f^M of God^ and rcgmrd
nieot fur tbenasclroi, and la n&me and bebalf
of the wboU? subject* of tbis kbgdoixi repre-
iMfUled by tb^EXK do hereby ass^i^^ re«o^i^,
wad ack no t% lodge their maie^tjtf^ i^oyd power
ftnd »utt)oriiy over tbe «iiid kio^^kini, aud Ibcir
utuloubted rigbi and title to the imperiai ciruwn
tlicrcof: like as tbeir m^e^tiea^ wiih advite
ajid coo^eot of tbe iftid Estates of Parliameol,
do ileclare, that it is bi^b treiUMiti in aoy of the
aobJectH ut ibts kit»j|[doiiif by wniiog, spe^kiPir,
or tiny othET tnaoner fd wu)^' to disowD, quarrel,
or tukpugo their maje^tu's myal power 4itid au-
Iboriiy^ or ngbt liJid title la ihe ifown. And
ftirlbert Iheir majei^iie^, with adrice and eoo-
■<»il fore^td, do stittuti* and oriJain, That iht*
O^th of Abe^iaoco hf^r^Tunto iiubjuitt*'*!, shall
Im Bwom aod aubicrdied by all tliemeuiber«
axid ckrksof parliaaieiil* ttiiit by ull othc^r p«r*
coos presentty in pobbc trust, civil or mibtiAry,
or ^vbo ^baU l>c hereaAer calM to nny fjubiic
try«l within ibe kiiigdorn ; and do hereby re-
imd md rcst^md mil precedJDg- laws and acts of
ptrtiament, in so far as t bey impose auy olber
c^albs (if AUegriaoce, Supreniac;, Declarations
and T^ts, c^c^pting the oaib de FideliJ^
At to tbb statute, Mr. LAisg, to!. 4, p. ttf^
observer;
** Tbe oBths'to goTemnierit merely proOsssed,
aa in England, to oe faitbfutt, and to liear Uue
allele J4 nee to ^VilUann and iVIary ; wit bout an
ackuowlcduraent of ibvir lavvfid title, or rigbt
to the CTUwn. To relicTC the scruples of the
conmeotioLis, a distincLtoo bt^tween a kiug dt
facta and a king ^£ jurt^ vias thus bnivittuely
iutrodnteii ; but there were lew Jaeobiles, who
hesitated, by the gmsa^&t e<)ui vocation, In ac*
ccpt the oatbs to llie frcivurnuient^ wbieh they
meant to overturii, uird to swear ulleKiance lo
^Villiani, wboin ihty had conspired to de-
throne."
By chap. G, of the fomtb session of tbe first
parliament of king William and queEfO Maryt
(April 18, 1693) iu titled, * Act for taking- tbe
* Oiitb of Allegiance and Assurance.*
**- Forasmuch as the itnpostiig and takm^ tbe
Oatliof Alli^Hitiuce, and Lbe As^oroni^e, enacte^l
in this curret^t parbanient, bsi hereto snhjuint-d,
will be a further security to tbe Protestant re-
lt|^]on and tbeir majt^ties g-overnment, in thin
present existence: therefore tb« kiog and
queen's u^jijesttes, with adviee anil content of
the Ejitates qf ParUaiucnt, E^tatute and ordain,
tbat tbe iald ostb of allc^aiice be Kwom, and
the same with tbe fbreieaid assurHOce be sub-
scribed by all nobl#rnen anrl their eldest soot
being pa.^t tvi«^nty-O0e years of af^e^ and by
all persons in ofiices and pbeas ot' public tniBti
«ivU, ecdviiaiticid and mditary." Aad tb« wH
1
to thf
ivtl>«r I
8outl)i
boond
That!
eonlaii
aweari
nerah
that *
ad) «*
rank»
oaib,
suranc
bor^*4
gorlof
titym|
and j&r
tbeir 0
the ow
of %¥^
tbriiiei
their I
ritfcs a
to taki
armini
horaes
judge
the cc
beritOT
tbinki
put Ih
iQ case
by lini
ment, a
be lier
suj>plv
ai) tJOl
others
cbeata
lies cQ
iecoud
The
* cereh
* fid, u
' tjes k
enaetec
*jesty'
ham at
The
' Act I
' nicnt,
if^s. ^,
before
sooie 1
mukry
" It
assert^
tDajesti
the onl
realm,
and qui
and e£i
I do sic
and goi
I Jvr ISgh Treatmu
I traytM', who had piit awkj the righte*
fig^ or words to thio efioct or porpooe ;
being m manifeft disownipg, quarrelUng,
ipugpeiog of his maiestief royoll flower
itbority , aod rifffat aod title to the crowne,
-e tbertbre gnilty, airt and pairt of high
ae, which being ibuod by the knowledge
inquest, yoa ought to he jmnished by
life, lands, and goods to the example and
of others to eommitt the lyke in tyme
Sic Sulncrihitur^ Ja. Stbwabt.
rn^r.— Hb Majestie's ad? ocat ; sir Pa-
tf loae, soilicitor.
€uraton in defence.'— Bit David Tlunrei.
'. Lords continues thedyet till Wednesday
od gofemment, against the late king
I andnis adherents, and all other enemies,
nther by open or secret attempts, shall
> or disquiet their
1 and exercise thereit
Laing (Hist toI. 4, p. 839) speaking of
*esty says : ** By a new assurance to
majesties in the pos-
A.D.iaW. [1454
next, and grants ca[»tione lor apprdieadiBg ihm
absent witnoMes against that dyet.
December 1, 1697.
Intran^
Mr. Alexander Pitcaime mmister at South
Ronald Shay, indyted and accused for treason-
able speeches.
Ptirftt^.— Sir James Stewartj his majestiis
advocat.
ProcuraiOFt in defence,~^T Daimd Thoin,
The lords commissioners of justiciary witk
consent of his majesties ad?ocat deserts the
dyet siropKciter, and ordainea the panuall to be
sett at liberty.
Sic Subicribitur, J. Falconak. I. P. D. C.
government, the distinction between a king
dejure and a king de facto was abjured.**
I helie?e that this is not strictly correct. I
do not find that the swearing to the assuranoe
was required by either the 38th act of the Snd
sees, or the sixth act of the fourth sess. of king
William and queen Mary's first parliament
END OF tOL. XIII.
Printed by T. C. HaoMnl, PeierbiMOUf a-Conrt,
Flort.Street, UMickm.
IffiUos^^^'
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